CONTENTS

Supervisors of police officers who allegedly attacked political demonstrators at Presidential Inaugural Parade could not be held personally liable on alleged failure to properly train and supervise their subordinates, in the absence of any knowledge of past transgressions making such misconduct likely.

     Political demonstrators at the 2001 Presidential Inaugural Parade in Washington D.C. claim that they were "engaged in only lawful, peaceful activity" along the parade route when "undercover government agents provocateur," subsequently identified as two D.C. police officers, struck them without justification and sprayed a chemical agent into their eyes and faces at close range. They further claimed that these officers then struck other demonstrators and sprayed them with pepper spray, while other uniformed and non-uniformed officers stood by and watched.

     Their federal civil rights lawsuit, among other claims, sought to hold supervisors of the two officers personally liable, on two different theories-- that the supervisors actively participated in the alleged misconduct, and that the supervisors failed to properly train and supervise the subordinates in circumstances "making it likely that such failure would lead" to the alleged misconduct.

     The supervisors sought qualified immunity, which the trial court denied. They then appealed the denial, but only with respect to the second, "inaction" theory of liability.

     A federal appeals court found that the trial court was in error in denying qualified immunity on that claim. In instances where a supervisor's responsibility is based on "inattentiveness," rather than affirmative misconduct, the court found, a higher degree of fault must be shown, which is not satisfied by a showing of negligence alone. "A supervisor who merely fails to detect and prevent a subordinate's misconduct, therefore, cannot be liable for that misconduct." Instead, they must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see."

[A]bsent an allegation that the MPD [Metropolitan Police Department] supervisors had actual or constructive knowledge of past transgressions or that the supervisors were responsible for or aware of "clearly deficient" training, the supervisors did not violate any constitutional right through inaction or failure to supervise.

     International Action Center v. United States, No. 03-5163, 365 F.3d 20 (D.C. Cir. 2004).

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Federal appeals court overturns $288,000 attorneys' fee award against police officer who settled a false arrest claim for $10,000 rather than undergo a new trial on damages following a jury award of $1 in nominal damages. Because the result achieved was a private settlement, rather than a court judgment, the plaintiff was not a prevailing party entitled to any attorneys' fee award at all.

     A woman who was having her hair done at a beauty salon refused to pay because she believed that a hair coloring job had been botched and her scalp had been burned by leaving her too long under a hair dryer. Salon employees called the police, and the officer who responded contacted the customer, who returned to the salon and offered partial payment. When the salon insisted on full payment, and the customer refused, the officer arrested her and detained her at the police station for two hours. Months later, the charges against the woman were dropped.

     She filed a federal civil rights lawsuit against the officer, claiming false arrest, and also sued the salon and its employees for malicious prosecution, battery, and negligence. A jury awarded her $40,000 in compensatory damages and $10,000 in punitive damages against the salon, and also found in her favor against the officer, but only awarded $1 in damages on that claim. The plaintiff sought a new trial, arguing that the trial judge had improperly instructed the jury that it could award nominal damages if it found liability but no compensable damages, and should have told the jury to award damages against the officer in whatever amount it found would compensate the plaintiff.

     The trial judge agreed, and granted a new trial on the issue of damages against the officer, but the parties settled the claim rather than retry the case, with $10,000 in damages being agreed to. The plaintiff then sought an award of attorneys' fees from the trial judge as a prevailing party under 42 U.S.C. Sec. 1988. The trial judge awarded $288,000 in attorneys' fees, based on the settlement of the claim against the officer, the recovery against the salon, and the benefit to the public of the lawsuit because it addressed "the rarely considered but socially important sphere of the use of police power to resolve the complaints of merchants and service providers against their own customers."

     A federal appeals court found that the award of attorneys' fees was improper. For an award of attorneys' fees as a prevailing plaintiff, a party must "obtain formal judicial relief, and not merely 'success.'" The only judgment by the court was the one entered after trial, which initially was only for $1 against the officer. Even that damage award, however, was later vacated, so that the only judgment against the officer was a determination that the plaintiff's rights were violated.

     A private settlement between the parties, however, even though the $10,000 settlement was more substantial than the $1 nominal damages initially awarded, did not constitute obtained relief by a judgment of the court. Because the settlement was not a "judicially sanctioned" change in the "legal relationship of the parties," the plaintiff was not a prevailing party under Sec. 1988 and was not entitled to an award of attorneys' fees.

     Petersen v. Gibson, No. 02-4271, 2004 U.S. App. Lexis 11735 (7th Cir. 2004).

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Officers were entitled to qualified immunity for arresting a motorist for refusal to obey orders to exit his vehicle to sign a speeding citation and for arresting his brother, a passenger, for interference with the officers in repeatedly advising the driver not to obey them. Use of pepper spray was also justified when vehicle occupants, in response to officer reaching his hand inside the vehicle, began to roll the window up on his arm.

     A police officer stopped a motorist for driving 85 miles per hour in a 55 mile per hour zone. The motorist, a 17-year-old, was driving with his 21-year-old brother in the passenger seat, and the two were going home from a ski trip. The officer approached the vehicle on the passenger side, and asked to see the driver's license, registration, and proof of insurance.

     The officer then saw the passenger zip up a small red pouch and place it in the glove compartment. In response to a question, the passenger claimed that there was "nothing important" in the pouch, but that he would "rather not" show it to the officer. The officer, who subsequently wrote in his report that he observed what he thought was a marijuana pipe and altoid mint candies in the bag, demanded that the bag be produced, and when this was not complied with, he asked the passenger to exit the vehicle.

     The officer threatened to spray pepper spray into the vehicle if the passenger did not comply, whereupon he exited and produced the bag, which contained only candy. The officer returned to his car to write the driver a citation for speeding and to consult with another officer who had arrived on the scene. The driver declined the officer's request to exit the vehicle and sign the citation on the hood of the patrol car, where he could be filmed by the officer's video camera. The officer explained that he would be arrested if he did not do so, and the passenger allegedly counseled the driver several times, interrupting the officer, and telling his brother not to leave the car.

     When the officer told the driver that he was under arrest, and reached inside the open window to unlock and open the door, the window began to roll up on his arm, and the officer began spraying pepper spray inside the vehicle. Both occupants of the vehicle were placed under arrest, with the driver charged with failure to sign the ticket and the brother being charged with interference.

     The two arrestees sued the officers, claiming false arrest and excessive use of force. A federal appeals court has upheld summary judgment for the officers on the basis of qualified immunity.

     The court found that the officer had probable cause to search the pouch after observing what he believed was a marijuana pipe inside it during the traffic stop, even though he was mistaken about its contents. The court noted that the arrestees did not contest the officer's statement that he believed that he saw such a pipe in the pouch.

     The court also found that the use of pepper spray was not excessive force in this case, since the driver had refused to exit the vehicle to sign the traffic citation or to submit to arrest, and the officer could reasonably believe that he was facing an imminent danger of being dragged down the road with his arm trapped in the vehicle's window when he saw the window rolling up on his arm.

     Further, the arrest of the driver for refusing to exit the vehicle to sign the traffic citation was lawful under Iowa law. The appeals court also found that the officers had probable cause to arrest the passenger for interfering with them in encouraging the driver to disobey their lawful commands to exit the vehicle to sign the traffic citation. The appeals court rejected the argument that these statements were "verbal harassment" falling within an exception to the statute prohibiting interference with an officer, since the statements were not directed at the officers, but at the driver.

     Finally, the appeals court ruled that even assuming that the officers lacked probable cause to arrest the passenger under these circumstances, they were entitled to qualified immunity because a reasonable officer could believe that there were grounds for an arrest under these circumstances.

     Lawyer v. City of Council Bluffs, No. 03-1032, 361 F.3d 1099 (8th Cir. 2004).

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Montana Supreme Court reinstates $358,000 award against county sheriff for allegedly failing to protect woman against fatal shooting by her husband. Sheriff had a duty to protect the wife on the basis of a special relationship created by a Montana state statute requiring him to provide a notice of rights and information on community resources to domestic violence victims, and he allegedly failed to provide such notices or information during a three year period of responding to domestic violence calls at the couple's residence.

     The Montana Supreme Court, rejecting a trial court's granting of judgment as a matter of law to a county sheriff, has ruled that the evidence in a lawsuit showed that the sheriff had a special duty to provide protection to a victim of domestic violence and reinstated a $358,000 jury damage award to a woman's sons for her shooting death at the hands of her husband.

     The trial court had ruled, in overturning the jury's award, that the sheriff had no legal duty to protect the wife from her husband and could not be held liable for the failure to do so.

     The Montana Supreme Court agreed that ordinarily there is no duty to provide protection to any specific member of the public against violence by a third party. But an exception to that principle of law, known as the public duty doctrine (stating that the duty to provide protection is owed to the general public, rather than to any specific person) occurs when there is a "special relationship" between the victim and law enforcement.

     Under a Montana statute concerning domestic violence, the sheriff and his employees were required to provide a notice of rights to victims of domestic violence and give them information on community resources concerning domestic violence whenever they responded to a domestic violence call. Sheriff's personnel--and the sheriff himself--had previously responded to domestic violence calls at the couple's home, during some of which the husband allegedly threatened the wife with harm and had been drinking. The wife, the court found, was a member of the protected class of domestic violence victims that the statue was designed to protect.

     The sheriff admitted that he had the notice forms required by the statute, but that these had not been given to any domestic violence victim at any time during a three-year period when he responded to domestic violence dispute calls at the victim's home. There was some testimony in the case that a deputy had observed the husband holding a pistol to his wife's head, and testimony from a psychologists who asserted that the woman's death would likely have been averted if the sheriff had arrested the husband, confiscated his gun, or informed the wife of some of the community resources available to her.

     Based on this, the court found, the jury had credible evidence on which it could base its decision that the decedent's death was caused by the sheriff's negligence. The trial court's grant of judgment as a matter of law to the sheriff and county was therefore incorrect, and the court reinstated the jury verdict.

     Massee v. Thompson, #03-567, 90 P.3d 394 (Mont. 2004).

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Ex-mayor's verbal threat to ex-dogcatcher to "get you," yelled out a car window as he drove by, did not provide probable cause to arrest him for assault because there was no threatening gesture and no threat of imminent harm. Officer who consulted with prosecutor before making an arrest was entitled to qualified immunity, but prosecutor was not, since no reasonable prosecutor could have believed there were grounds for an arrest.

     The former mayor of a town, who had moved away after losing his re-election bid, drove back through town, and past the home of a man who he had previously fired as dogcatcher after the two had a falling out. The former dogcatcher was standing in the street near his own vehicle, trying to retrieve keys locked in his daughter's car, while a local police officer attempted to help. The former mayor, seeing the former dogcatcher, gave him a dirty look, rolled down his window, and yelled: "You have a nice day, and your ass is mine you son of a bitch. And I will get you." He then drove away. The officer allegedly did not hear the ex-mayor's words.

     The former dogcatcher later went to the police station with the officer, and filed a complaint against the ex-mayor for assault. Unclear whether this complaint really charged a crime, the officer consulting with a prosecutor who viewed the complaint and advised the officer to arrest the ex-mayor, which he did. Another prosecutor subsequently dropped the charges, and the arrestee sued both the officer and first prosecutor, claiming that there had been no probable cause for his arrest.

     A federal trial court granted summary judgment for the defendants. A federal appeals court disagreed, finding that the mere idle verbal threat made by the ex-mayor was insufficient to provide probable cause to arrest.

     Assault under applicable law, the court noted, requires a threatening gesture or an otherwise innocent gesture made threatening by the accompanying words that creates a reasonable apprehension of an imminent battery, i.e., a harmful or offensive touching or physical harm.

     In this case, the court noted, there was no threatening gesture, and not really any present threat. The question was not what the victim of the threat feared, necessarily, as the ex-dogcatcher may well have feared future harm from the ex-mayor. Because there was no threat of imminent harm, there was no assault.

     The appeals court found that the prosecutor was not entitled to qualified immunity, because no Illinois prosecutor--"a law-trained specialist in the enforcement of the criminal law of Illinois--could reasonably believe" that the arrestee had committed a crime. On the other hand, the police officer was entitled to qualified immunity because he consulted the prosecutor before making the arrest. "Consulting a prosecutor," the court commented, "may not give an officer absolute immunity from being sued for false arrest," but it goes far to establish qualified immunity. Otherwise, the incentive for officers to consult prosecutors--a valuable screen against false arrest--would be greatly diminished."

     Kijonka v. Seitzinger, #03-3158, 363 F. 3d 645 (7th Cir. 2004).

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Officers did not use excessive force in first using pepper spray and then shooting a motorist who pulled a knife on them after initially refusing to submit to a stop on suspicion of intoxicated driving.

     A Michigan motorist claimed that police officers stopped his vehicle without justification and then used excessive force against him, with the encounter escalating to the officers first using pepper spray against him and ultimately shooting him. He claimed that the officers used excessive force.

     Upholding summary judgment for the defendant officers, a federal appeals court found that the officers had sufficient reasonable suspicion that the motorist was driving under the influence of alcohol based on observation of the motorist weaving in traffic and the motorist leaning over to the right inside his car.

     The court also noted that the motorist initially refused to stop for the officers, so that an officer acted reasonably in briefly grabbing the motorist as he emerged from the car when he did stop, in order both to keep him from fleeing and to perform a pat-down search for the officers' safety, since the motorist had his hands in his pockets.

     Further, when the motorist subsequently drew a knife, it was reasonable and not excessive use of force to attempt to incapacitate him through the use of pepper spray. When this failed to prevent the motorist from continuing to attempt to strike at one of the officers with his knife, the officers did not act improperly in shooting him. The fact that the two officers together unleashed a single volley consisting of sixteen shots, causing serious injuries did not alter the reasonableness of their response, the court ruled.

     Gaddis v. Redford Township, #02-1483, 364 F.3d 763 (6th Cir. 2004).

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Union adequately alleged that off-duty police officers serving as security guards outside facility where its members were picketing in support of strike acted under color of law. City was also providing on-duty police officers at the site, and union claimed that city, employer, private security firm, and on- and off-duty officers conspired to intimidate union members and unlawfully arrest and harass them.

     Members of a union in Memphis, Tennessee were engaged in "picketing and other expressions" in support of a strike at a local employer's facility. During this activity, the picketers tried to call non-striking employees "scabs," shouted slogans at non-striking employees, and tried to use sound devices such as megaphones to convey their message. During the strike, the city provided police services at the facility, and a private security firm also provided security services there. A number of the security officers employed by the private security firm were off-duty city police officers.

     The union claimed that the struck employer, along with the private security firm, had used both on-duty and off-duty police officers to "interfere with, deter, and intimidate" the union and had directed the officers to "threaten to engage in and engage in force, violence, harassment and the unequal enforcement of the law." It also claimed that the on-duty officers continuously conferred with agents of the employer and the private security firm before confronting union members and their sympathizers on the picket line.

     A federal civil rights lawsuit filed by the union claimed that the city had a policy and practice of allowing off-duty officers to be hired by private security companies, and that the city, employer, private security firm, on-duty officers, and off-duty officers conspired to engage in police misconduct, including arresting and detaining strikers without cause, failing to respond to or investigate threats to the safety of strikers, and compelling strikers to provide personal information.

     A federal appeals court has reversed the dismissal of this lawsuit by a trial court.

     It found that the facts alleged, if true, were sufficient to claim a city policy or practice of allowing off-duty officers working as security guards to be used to carry out unlawful activities against the union members. It also found that the facts, alleged, if true, were sufficient to support claims for a federal civil rights conspiracy between the defendants.

     As for the actions of the off-duty officers, it noted that under the facts alleged, it was entirely possible that an on-duty officer working the picket line could confront a union member one hour, go home and change uniforms, and then come back to the exact same picket line as an off-duty police officer, performing the same acts.

Under such circumstances, the line separating the color of law becomes blurred, if not altogether indistinguishable.

     The union, therefore, had sufficiently pleaded, for purposes of a motion to dismiss, that the "off-duty police officers were acting under color of law."

     Memphis American Postal, AFL-CIO v. Memphis, #02-5694, 361 F.3d 898 (6th Cir. 2004).

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Wisconsin Supreme Court declines to extend "firefighters' rule," barring landowners' liability for injuries firefighters suffer in coming onto their property to fight fires to injuries suffered by police officers in the course of performing their duties. Wisconsin police officer, therefore, was not barred from pursuing injuries claims against the owners of a loose dog which bit her.

     A police officer in Wisconsin on patrol saw a stray dog in the street, and the dog bit her on the face and neck when she grabbed its chain and knelt down near it. She filed a lawsuit against the dog owners on the basis of both common law negligence and a state statute imposing liability for injuries on animal owners.

     The state trial court granted summary judgment to the defendants, and an intermediate appeals court affirmed, but certified a question to the Wisconsin Supreme Court as to whether liability in these circumstances for injuries to a police officer would be barred under the "firefighters' rule" which provides that firefighters cannot seek damages for injuries they receive while undertaking duties whose risks are inherent in their occupation. The certified issue was:

Whether Wisconsin's "firefighters rule," that is based on public policy limitations on liability, should be extended to police officers to bar an officer from suing dog owners for injuries the officer received while capturing the dog.

     The Wisconsin Supreme Court ruled that the firefighters' rule would not bar liability in these circumstances, when injuries to a police officer are caused by a dog running loose off the leash. The court reasoned that the underlying policy behind the firefighters' rule is that liability for negligence which creates injuries to firefighters who enter onto property would result in placing too huge a burden on property owners and occupiers, and deter them, rather than encourage them, from freely calling for help needed to put out fires.

     These public policy reasons for the rule, the court found, did not apply in the context of injuries to police officers. "We conclude that public policy reasons do not support extending the firefighters rule to police officers." The officer, therefore, may sue for injuries she allegedly received because of the defendant's dog's attack that occurred during the course of her duties as a police officer.

     Cole v. Hubanks, No. 02-1416, 681 N.W.2d 147 (Wis. 2004).

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Deputies serving judicial warrant for involuntary mental health confinement of disturbed man who had threatened to kill his sister did not act unreasonably in entering his apartment without knocking and announcing their purpose. Genuine issues of disputed fact as to the level of the disturbed man's "provocation" and resistance to the officers precluded summary judgment on his excessive force claims.

     A 37-year-old man living by himself repeatedly called his father on the phone and threatened to kill his sister. The father, who knew that his son had been hospitalized for mental illness before, applied for and obtained a judicial warrant from the county psychiatric center for his son's involuntary mental health confinement. A deputy sheriff and two mental health deputies were assigned to serve the warrant on the son in the evening.

     The deputies, who were in plain clothes, instructed the father to knock on the apartment door, and when his son answered, to move aside so that they could state their reason for being there. Inside, the son later testified, he heard two knocks on the door and feared he was about to be burglarized. He then picked up "The Club," an anti-theft device used on car steering wheels, and moved it back and forth, intending to reproduce the sound of a shotgun being cocked. The deputy sheriff thought that he heard the sound of a pump shotgun.

     When the man inside opened the door to see who was outside, the deputy believed that he saw him holding a "sword-like" object above his head, which was "The Club." The deputies then entered, although it was disputed whether or not they identified themselves and they claimed that the man started swinging "The Club" at them, which he later denied.

     The deputies subdued the man, and he later contended that they went too far, with one placing his knees on the man's neck, choking him and repeatedly punching him in the face. His federal civil rights lawsuit contended that they unlawfully entered his apartment and unlawfully failed to knock and announce their identity, and that they used excessive force against him.

     A federal appeals court, granting qualified immunity to the deputies on the search and seizure claims, found that the failure of the deputies to knock and announce their purpose did not violate the Fourth Amendment. The deputies knew, from information obtained from the plaintiff's father, including his affidavit, that the man inside was thought to be a threat to himself and others, based on his threats to kill his sister, and they had a warrant for his involuntary detention for psychiatric treatment. Under the circumstances, their manner of entry was not unreasonable, even if, with the benefit of hindsight, some could argue that it could have been executed less intrusively.

     The court found that genuine issues of material fact concerning the "actual or perceived" provocation by the plaintiff and the level of his resistance to the deputies precluded summary judgment on the excessive force claims.

     Linbrugger v. Abercia, No. 02-221300, 363 F.3d 537 (5th Cir. 2004).

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Police and EMTs who responded to a report of a man having a seizure were not entitled to summary judgment in lawsuit claiming that they created a further danger to him and used excessive force to restrain him, causing his death.

     A woman in Passaic, New Jersey woke up one morning to find her 44-year-old husband shaking uncontrollably. One of her children called 911 and an ambulance with emergency medical technicians (EMTs) was dispatched. She advised them that her husband had previously had seizures and that he was taking diabetic medication. Inside the apartment, the EMTs found the husband standing in the living room and he began walking in their direction "like a zombie." One of the EMTs later claimed that the man attacked her without provocation, put his arm around her neck, and attempted to strangle her. The wife disputed this, but the second EMT confirmed this version of the incident.

     The EMTs called for police backup. When the officers arrived, one of them claimed that the man became very aggressive and began punching and pushing him in the chest. The officers claimed that they reacted by trying to restrain the man, and that they then all fell the floor of the living room. The man's wife claimed that the officers threw her husband to the floor without any provocation.

     Three officers attempted to restrain the man, who allegedly kept pulling away. The officers claimed that at one point during the struggle, the man tried to grab an officer's pistol from his holster. One of the officers then struck the man in the face with a flashlight. Two of the officers also claim that the man bit them. They also allegedly pushed the man's head into the carpet while they tried to handcuff his wrists behind his back. The wife claimed that the man had not tried to get the officer's gun, but had only reached around blindly with his arm and touched the officer's thigh. She also claimed that the officer's flashlight, at one point, was jammed into her husband's mouth for a number of minutes.

     The man was ultimately placed face down on a stretcher and carried downstairs, with his ankles bound with cloth restraints. One of the EMTs stated that carrying the man face down on the stretcher violated his EMT training, but that he felt like the situation was in the hands of the police at that point. It was disputed whether the man fell off of the stretcher, or went off it when he became combative on the porch. Paramedics arrived, and discovered, when they turned the man onto his back that he was not breathing. He was subsequently pronounced dead.

     The man's estate and family sued the officers and EMTs, claiming that they had used excessive force to quiet and restrain him and created or enhanced the danger to him, causing his death.

     A federal appeals court upheld the denial of summary judgment to the defendants.

     The court found that there was a genuine issue of fact as to whether the EMTs "consciously disregarded" a great risk of harm to the man by falsely accusing him of acting violently and then subsequently "abandoning" him to the police, creating a danger of harm that would not have existed otherwise.

     It also found that there was a genuine issue of fact as to whether the police officers, who were told that the man was experiencing a seizure, used excessive force to quiet him. Additionally, the court stated, while the facts were disputed, a reasonable jury could find, on the basis of the evidence that the man did not present a threat to anyone's safety as he lay in a prone position on the porch with his hands and ankles secured behind his back.

     Rivas v. City of Passaic, #02-3875, 365 F.3d 181 (3rd Cir. 2004).

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Arab-American man who became involved in domestic dispute with his ex-wife did not show that officers violated his rights by accompanying her into the home to retrieve her belongings or that they engaged in gender or national origin discrimination in failing to pursue an investigation into her conduct when he claimed that she had "broken in" and stolen his property. Officers reasonably believed that ex-wife had the right to consent to their entry into the home and there was no showing that the man was treated any differently than similarly situated women or non-Arab-Americans.

     An Arab-American man living in Michigan allegedly beat his ex-wife, pointed a gun at her head, and threatened to kill her unless she gave him sole custody of their minor children. Two weeks later, the ex-wife returned to the home, accompanied with township police officers who stood by while she removed her belongings. The man called police later that day, claiming that his ex-wife had broken into his home and stolen his property. Two days later, a police lieutenant allegedly told the man that the department would not be pursuing an investigation of the ex-wife's conduct because "this is a domestic issue and, another thing, in this country, we don't pull gun on woman [sic]."

     The man then filed a federal civil rights lawsuit claiming that the officers' presence in his residence constituted an unlawful search, that the officers' presence made him more vulnerable to the loss of his property, in violation of his due process rights, and that the lieutenant's refusal to investigate his wife's conduct was based on his gender and national origin, in violation of his right to equal protection of law.

     A federal appeals court upheld summary judgment in favor of the defendants on all these claims.

     Under the circumstances, the court found, the police officers could reasonably believe that the homeowner's ex-wife had authority to consent to their entry into and presence in the home and there entry therefore did not violate the homeowner's rights. The ex-wife had a garage door opener which she used to gain access to the residence, and had been living in the home until shortly before. Additionally, the homeowner had received advance notice from his ex-wife's attorney, that she intended to remove her belongings from the house, but he did not attempt to get an injunction or otherwise prevent her from doing so.

     The court rejected the argument that the homeowner was subjected to either gender discrimination or national origin discrimination. There was no showing that the officers treated other similarly-situated persons who were not Arab-Americans differently or that they treated him differently than similarly situated women. The plaintiff produced no evidence that either the lieutenant or other police officers from his department had pursued investigations in similar circumstances where the complaining party was a woman or non-Arab-American.

     Harajli v. Huron Tp., 02-2169, 365 F.3d 501 (6th Cir. 2004).

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Former Massachusetts Commissioner of Public Safety was not liable, on the basis of his role as supervisor, for state trooper's allegedly unlawful strip search of and lewd comments to female motorist during vehicle stop. Commissioner's prior discipline of trooper following investigation of four prior incidents, which included a six-month suspension without pay, could not be said to show deliberate indifference to the rights of female motorists.

     A Massachusetts state trooper stopped a woman's motor vehicle on the road. During the course of the road, he allegedly illegally strip searched her, and then made "lewd and suggestive" remarks to her. He then allegedly made threats of physical harm if she reported his actions. Five years prior to this incident, internal affairs had conducted an investigation into the trooper's "inappropriate and unprofessional" conduct with four other female motorists. As a result of the investigation, the Commissioner of Public Safety and Superintendent of State police suspended the trooper without pay for six months and ordered him to report to the department's "stress unit" after he returned to active duty.

     The female motorist filed a federal civil rights lawsuit against the former Commissioner, seeking to impose supervisory liability on him based on a claimed deliberate indifference to the constitutional rights of female motorists because he did not previously recommend that the trooper be terminated.

     The Supreme Judicial Court of Massachusetts overturned a lower court's denial for summary judgment on the basis of qualified immunity for the defendant Commissioner.

     While the plaintiff had introduced as evidence an affidavit of an expert witness contending that there were additional reasonable police supervisory techniques that the Commissioner could have used to attempt to change the trooper's attitudes, behavior and performance deficiencies, including committing him involuntarily to professional psychological services, the court rejected the argument that this amounted to callous or reckless indifference to a known problem, finding it to be, at most, negligence.

     The discipline imposed cost the trooper an estimated $25,000 in lost wages, and he did order the trooper to seek treatment through the department's stress unit. Accordingly, there was no evidence that the Commissioner had failed to take adequate disciplinary measures after the prior incidents. Instead, he acted "promptly and forcefully in addressing the first report that he received of misconduct" by the trooper.

     The court also found that the plaintiff had failed to show that any action or omission by the Commissioner "was affirmatively linked to her injuries." The past penalty imposed was sufficiently serious to show that the department did not "condone" the trooper's actions.

     While the court emphasized that it did not wish to minimize "the severe trauma and humiliation" that the trooper caused the plaintiff to suffer, it found as a matter of law that she had failed to introduce sufficient evidence to create a triable issue of fact that the Commissioner had violated her constitutional rights. Instead, he had acted reasonably under the settled law in the circumstances, and was therefore entitled to summary judgment on the basis of qualified immunity.

     Clancy v. McCabe, 805 N.E.2d 484 (Mass. 2004).

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Administrative Liability: Supervision

     Police officials were not entitled to qualified immunity on supervisory liability claims based on their allowing a sergeant to supervise a "high impact" unit which was involved in the shooting death of a suspect. This was based on the sergeant's past disciplinary record, which allegedly showed that he could not control his emotions and was not "truthful and honest." There was a factual issue as to whether the officers allegedly involved in misconduct in the suspect's death acted on the sergeant's orders and whether the failure of higher-up supervisors to take stronger measures to discipline the sergeant had an "affirmative link" to the alleged violation of the decedent's rights. Court also holds, as to the officers, that there was a genuine factual issue as to whether the decedent had been carrying a gun and whether the officers planted a rifle next to his body after he was shot. Officers were therefore not entitled to qualified immunity on excessive force claim or judgment as a matter of law on defamation claim arising from publication in newspaper of photo showing gun next to body. Gonzalez Perez v. Gomez Aguila, 312 F. Supp. 2d 161 (D. Puerto Rico 2004).

Attorneys' Fees: For Plaintiff

     Motorist shot by police officer after car chase, who was awarded $250,000 on his excessive force claim, was also entitled to an award of $95,836.65 for legal fees and $11,758.40 for costs, for a total of $107,595.05. Court rules that time attorney spent investigating the pursuit route and the scene of the shooting was compensable as part of attorneys' fee award, that the cost of hotel expenses for an out-of-state lawyer were not recoverable without an explanation for why it was necessary to hire an out-of-state lawyer. Reduction in requested fees was required based on plaintiff only prevailing against one of four defendants and on only two of fourteen claims originally asserted. Parker v. Town of Swansea, 310 F. Supp. 2d 376 (D. Mass. 2004).

Defenses: Sovereign Immunity

     Delaware Supreme Court rules that state statutes waived sovereign immunity only to the extent that any loss was covered by insurance. Trial court therefore properly granted summary judgment in favor of police officer and state in lawsuit seeking to collect more than the amount of insurance available for injuries sustained by vehicle occupants in an accident involving a state police vehicle. Pauley v. Reinoehl, No. 679, 2002, 848 A.2d 561 (Del. 2004). [PDF]

     Deputy sheriff, who was acting within the scope of his duties in driving evidence to a forensic lab at the time that his vehicle had an accident with another motorist's car, causing injuries, was entitled to sovereign immunity from liability for negligence under Alabama state law. Ex Parte Haralson, No. 1020783, 871 So. 2d 802 (Ala. 2003).

Defenses: Statute of Limitations

     Publication of newspaper article about murder of government informant did not provide his estate notice of a possible claim that the murder was caused by three FBI agents divulging the informant's identity to members of organized crime, so that the statute of limitations did not begin to run on the estate's federal civil rights claim. Trial court denies motion to dismiss lawsuit on the basis of statute of limitations, which did not begin to run until the plaintiffs knew or should have known, of both the death and the alleged factual cause of the death. Castucci v. United States, 311 F. Supp. 2d 184 (D. Mass. 2004).

Dogs

      Police supervisors were not entitled to summary judgment on the basis of qualified immunity on arrestee's claim that his rights were violated when he was injured by a police dog while fleeing from an allegedly stolen car. Supervisors could be held liable if they were deliberately indifferent to the risk of harm to suspects from improper dog attacks based on knowledge of past incidents, and their failure to correct the problem through effective training or discipline.  Rosenberg v. Vangelo, #02-2176, 93 Fed. Appx. 373 (3rd Cir. 2004). [PDF]

False Arrest/Imprisonment: No Warrant

     Officer had probable cause to arrest a motorist on charges of driving with a suspended driver's license based on information in the city's computer indicating that the license had been suspended for failure to pay a fine. There was nothing to indicate to the officer that the computer information might be false. Evans v. City of New York, 308 F. Supp. 2d 316 (S.D.N.Y. 2004).

     The mere fact that a Virginia implied consent statute gave police officers the right to ask that drivers submit to blood or breath tests when suspected of driving under the influence of alcohol did not give a driver a right to demand a blood test or breathalyzer. Motorist could still properly be arrested, in the absence of such tests, on the basis of the arresting officer's observations of the driver's speech, alertness, coordination, and ability to follow instructions. Edwards v. Oberndorf, 309 F. Supp. 2d 780 (E.D. Va. 2003).

     There was probable cause for arrest of a minor for "criminal mischief" based on officer's observation out of his window of minor kicking and ramming into a car, causing its alarm to sound, after the same alarm had sounded three or four times during the previous half-hour. Campbell v. Moore, #01-3474, 92 Fed. Appx. 29 (3rd Cir. 2004). [PDF]

False Arrest/Imprisonment: Warrant

     Two officers who arrested the plaintiff acting in good faith pursuant to what appeared to be a facially valid arrest warrant could not be held liable for false arrest on the basis of alleged omissions of material information from the affidavit for the warrant, when they did not participate in preparing it. Cea v. Ulster County, 309 F. Supp. 2d 321 (N.D.N.Y. 2004).

     Police officer properly arrested a man under an outstanding facially valid bench warrant bearing his name, and had no reason to know that the man's brother had falsely given his name when previously arrested for shoplifting. Carter v. Baltimore County, Maryland, 95 Fed. Appx. 471 (4th Cir. 2004).

Firearms Related: Intentional Use

     Officer acted in an objectively reasonable manner by shooting suspect during execution of search warrant on residence. Officer had been told that resident was suspected of homicide, had a violent history, and had previously shot a police officer, and that he was known to carry guns. The officer, on entering the home, saw the suspect lift his right arm and believed that an object he was carrying was a gun. The fact that the object subsequently turned out to be a Bic cigarette lighter did not alter the result. Trusdale v. Bell, No. 02-6398, 85 Fed. Appx. 691 (10th Cir. 2003).

First Amendment

     There were genuine issues of fact as to whether minister was arrested on three occasions solely for the words he spoke, and whether those words were constitutionally protected free speech or unprotected "fighting words" which provoked hostile crowd reactions threatening to cause riots. The arrestee is a evangelist who believes that his mission is to bring the gospel to college students and on these occasions, he went to various events or locations, preaching and, in one instance, carrying a sign stating that "Fornicators and drunkards will join Tupac in hell," referring to deceased "rap" musician Tupac Shakur, and allegedly, on one occasion, called female students "Catholic whores." City, however, was not shown to have failed to adequately train officers on First Amendment rights, as it taught officers to protect individual rights to free speech limited only by threats to the safety of the public. Victory Outreach Center v. Melso, 313 F. Supp. 2d 481 (E.D. Pa. 2004).

Freedom of Information

      Newspaper reporter who sought disclosure, under Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, of documents concerning investigation of FBI agents for allegedly making false statements in affidavits for arrest warrants was not entitled to documents that would not be able to be discovered in litigation, including documents covered by work product privilege, executive privilege, or attorney-client privilege. FBI could exclude from documents to be disclosed the names of employees involved in the investigation or in the subsequent decision-making, based on a law enforcement exemption under the statute. Wood v. FBI, 312 F. Supp. 2d 328 (D. Conn. 2004).

Insurance

     Insurer had an obligation, under law enforcement liability policy, to defend and indemnify village in class action lawsuit claiming that it had violated the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq. by allowing its constables to issue traffic tickets without authority to do so, despite dispute over whether village constables had law enforcement duties. Brewer v. Village of Old Field, 311 F. Supp. 2d 382 (E.D.N.Y. 2004).

Malicious Prosecution

     Police officer had probable cause to initiate criminal charges against the plaintiff based on statements he obtained from an off-duty officer who had been involved in a fight with the plaintiff, and an interview with a neighbor who had witnessed the incident, defeating any claim for malicious prosecution. A genuine issue, however, as to whether the off-duty officer acted in his capacity as an officer or purely as a private person during the fight precluded summary judgment on federal civil rights claims arising from the fight itself. Ousley v. Town of Lincoln Through Its Finance Dir., 313 F. Supp. 2d 78 (D.R.I. 2004).

Off-Duty/Color of Law: Firearms Related

     City was not liable for alleged wrongful shooting and killing of woman by off-duty police officer, despite alleged awareness of officer's "violent behavior" towards the victim on prior occasions and his alleged substance abuse. In addition to the officer not being on duty at the time of the incident, the police department was not notified of the situation occurring at the victim's residence, and was therefore not aware of any need to intervene. Burkhart v. Knepper, 310 F. Supp. 2d 734 (W.D. Pa. 2004).

Off-Duty/Color of Law: Supervisory Liability

     Police chief had no duty, as a supervisor, to control the off-duty actions of a police sergeant which would make him liable for injuries that a police detective suffered in an off-duty fight with the sergeant. While the chief had the ability to impose disciplinary action for off-duty conduct, this did not impose any "affirmative obligation" on him to enforce the code of conduct in order to protect the detective. Murdock v. Croughwell, No. 16987, 848 A.2d 363 (Conn. 2004). [PDF]

Public Protection: Rescue Situations

     Even if police officers acted willfully and wantonly in failing to rescue victims of a residential fire, they were protected against liability under Illinois law based on governmental immunity for discretionary actions under 745 ILCS 10/2-201. The officers, the court finds, had a policy decision to make in balancing their possible chance of success in rescuing the fire victims against the risk to their own safety. Fender v. Town of Cicero, 807 N.E.2d 606 (Ill. App. 1st Dist. 2004).

Public Protection: Witnesses

     The mere fact that a murder witness had been served with a subpoena to compel her to testify did not create any affirmative obligation to protect her, so there was not liability when she was allegedly killed outside her home by the alleged perpetrator. She was not in custody and law enforcement did not create the danger to her by issuing the subpoena to testify. She was already in danger from the alleged perpetrator who could reasonably assume that she would testify. Rivera v. Rhode Island, 312 F. Supp. 2d 175 (D.R.I. 2004).

Racial/National Origin Discrimination

     Operators of school bus business stated a possible federal civil rights claim by alleging that a Massachusetts state trooper engaged in a campaign designed to make it difficult for them to operate their business, resulting in the non-renewal of at least one bus contract, on the basis that they had hired a number of employees of Russian heritage. Lecrenski Bros. Inc. v. Johnson, 312 F. Supp. 2d 117 (D. Mass. 2004).

RICO

     Village itself could not form criminal intent required for a claim under the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961, et seq. Village constables, in allegedly violating a state statute prohibiting offering false instruments for filing by writing traffic tickets without authority to do so, did not constitute predicate criminal acts for purposes of a RICO civil claim because they were not punishable by imprisonment for more than one year. Claim that village officials mailed notices regarding the allegedly invalid traffic citations, however, could constitute acts of mail fraud as part of an alleged scheme to enforce tickets. Brewer v. Village of Old Field, 311 F. Supp. 2d 390 (E.D.N.Y. 2004).

Search and Seizure: Home/Business

     Former special agent in charge of DEA office who made an allegedly false statement to a federal investigator which was incorporated into an affidavit for a search warrant for the home and office of one of his former subordinate agents could not be held liable for a Fourth Amendment violation on that basis. There is no protection under the Fourth Amendment, the court rules, against a person lying about his personal memories of the past to investigators who subsequently use it as the basis of a search and seizure. The defendant lacked personal involvement in the investigation and search. Mueller v. Gallina, 311 F. Supp. 2d 606 (E.D. Mich. 2004).

Search and Seizure: Person

     The alleged "manipulation" of supposedly "random" drug testing procedures in order to gather evidence of alleged drug use by particular federal employees for use in criminally prosecuting them, if true, would violate clearly established Fourth Amendment rights, so that agency officials were not entitled to qualified immunity from unreasonable search and seizure claim. Freeman v. Fallin, 310 F. Supp. 2d 11 (D.D.C. 2004).

Sexual Assault

     Sheriff did not act in a policy-making capacity for the county when he allegedly engaged in statutory rape of mentally handicapped female minor by using his police vehicle's lights and siren to pull over vehicle in which she was a passenger. County, therefore, could not be held liable, in federal civil rights lawsuit, for sheriff's actions. Wooten v. Logan, No. 02-5753, 92 Fed. Appx. 143 (6th Cir. 2004).

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

     Article: "Focus on Training: Cop 101. Surviving Prisoner Searches," by Todd Coleman, Master Police Officer, certified police instructor, who serves in the Special Operations Division of the Virginia Beach, Virginia Police Department, 73 FBI Law Enforcement Bulletin No. 5, pgs. 8-11 (May 2004). [PDF] Also available in .html format.

     Publication: Citizen Corps (NCJ 203669), Bureau of Justice Assistance, June 2004. PDF or HTML Describes Citizen Corps, a nationwide program that promotes volunteer activities that support community safety and homeland security. Citizen Corps programs and partners build on the successful efforts that are in place in many communities across the United States to prevent crime and respond to emergencies.

     Publication: Project ChildSafe (NCJ 204959), Bureau of Justice Assistance, June 2004. PDF or HTML Describes Project ChildSafe, a nationwide program that distributes free gun locks and teaches firearm owners how to safely handle and store their firearms. The project also helps local law enforcement agencies schedule firearm safety events in their communities. As of March 2004, Project ChildSafe had distributed more than 9 million safety kits in nearly 12,000 communities in 46 states.

     Report: Assessment of U.S. Government Activities to Combat Trafficking in Persons. U.S. Department of Justice. 53 pgs. (June 2004) [PDF]. A follow-up of a similar report issued last year. Examines the legal and practical problems involved in combating the trafficking of persons across international borders into the U.S. to be used for sex and labor exploitation purposes. The report estimates that such crimes currently involve between 14,500 and 17,500 victims each year. See also, "Report to Congress from Attorney General John Ashcroft on U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2003," 42 pgs. [PDF] (May 1, 2004). Eighty pages of appendices to that report are also available in .pdf format.

     Statistics: Preliminary Crime Statistics for 2003 [PDF]  (May 24, 2004). This preliminary report of FBI crime statistics for 2003 finds that violent crime declined 3.2 percent in 2003 as compared to the data reported in 2002. Property crime remained relatively unchanged from the 2002 figure, showing a 0.1-percent decrease. The preliminary annual report is based upon information from law enforcement agencies that provided the FBI’s Uniform Crime Reporting (UCR) Program with 6 to12 months of data in both 2002 and 2003. In total, 11,921 agencies met the criteria to be included in the preliminary report.

     Websites: "Homicide in Chicago-1870-1930." An on-line database at Northwestern University School of Law has information on 11,000 murders during the indicated years, from the Chicago Fire until the Depression. Information includes police reports, photographs, and related materials, including crime commission reports and video commentary by legal experts. Specially featured cases include the 1886 Haymarket incident in which seven police officers were killed, the assassination of Mayor Carter Harrison when he gave a speech at the World Columbian Exposition in 1893, a 1919 race riot in which 38 people died, and the Franks' killing in 1924 by University of Chicago students Nathan Leopold and Richard Loeb.

     Websites: United States Marshals Service. This website was restructured on June 7, 2004, with additional features, including expanded information on the major duties and services provided by the Marshals Service, more information on fugitive investigations, a list of local U.S. Marshal district office contacts and information, and a new section on the story of the U.S. Marshals Service. Other features include information on prisoner health care (including the U.S. Marshals Service Prisoner Health Standards), court productions, and a public defender handbook, as well as a U.S. Marshals for Kids page with a variety of information and activities.

     Websites: USAonWatch/Neighborhood Watch. This website and program was created by the National Sheriffs' Association, in conjunction with several federal agencies, to encourage the initiation and/or revitalization of Neighborhood Watch programs throughout the country. One of the oldest and best known crime prevention concepts in history, Neighborhood Watch (NW) was created to unite law enforcement agencies, private organizations, and individual citizens in a massive effort to reduce residential crime. USAonwatch is used not only to promote NWs, but also record the number of NWs started. Includes a national database of neighborhood watch programs and information on starting and registering a program with the site. A resource center is also provided, along with an electronic newsletter that can be subscribed to.

     Websites: Volunteers in Police Service. One of the Citizen Corps programs is the Volunteers in Police Service (VIPS) Program. The International Association of Chiefs of Police (IACP) is managing and implementing the VIPS Program in partnership with and on behalf of the White House Office of the USA Freedom Corps and the U.S. Department of Justice. The program's ultimate goal is to enhance the capacity of state and local law enforcement to utilize volunteers. This website serves as a gateway to information for law enforcement agencies and citizens interested in law enforcement volunteer programs. To date, it currently states, more than 890 law enforcement volunteer programs, representing more than 61,000 volunteers in all fifty states, have registered with the VIPS Program. The program offers a number of resources through the website, including an on-line directory of existing volunteer programs, a resource guide, an online clearinghouse of sample documents and forms, including policies and procedures, liability waiver forms, training materials, volunteer applications, etc., technical assistance, VIPS Info, a monthly electronic newsletter, and a moderated discussion group for registered VIPS programs to share information and ideas. The VIPS Program has also released two educational videos: Introducing Volunteer Activities to Law Enforcement (12 minutes) and Introducing Law Enforcement Volunteerism to the Community (13 minutes). VHS copies of either or both videos are available by emailing info@policevolunteers.org

     Reference:

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

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