CONTENTS

Federal appeals court holds that trial court, in ruling on whether prosecutor and his investigator were entitled to absolute immunity in lawsuit over alleged tainted conviction of five men for felony-murder of a police officer, improperly believed that it must assume the truth of the plaintiffs' claims without examining the evidentiary support offered for those claims and their admissibility.

     Six black men were tried in a California state court for the felony-murder of a police officer who had been shot and killed while chasing a fleeing suspect through a park. Four of them were found guilty, one pled guilty to a lesser charge, and one was acquitted, with the star witness being a then-incarcerated man who had agreed to cooperate with the prosecution.

     Years later, a newspaper article described alleged favors provided to that witness while he was cooperating, including alleged repeated transfers from prison to the prosecutor's officer for sexual trysts with his wife and other women. These favors were not disclosed to the accused, to the judge at their criminal trial, or to the jury.

     After publication of the article, the five convicted defendants filed habeas corpus petitions in state court, and the convictions were vacated. The county prosecutor was disqualified from prosecuting the case, and after reviewing the file, the California Attorney General offered a plea bargain. The convicted defendants pled guilty to voluntary manslaughter, received time served, and were immediately released.

     All six men, the five convicted and the one acquitted, then filed a federal civil rights lawsuit against the prosecutor and his chief investigator, as well as against the police department and prosecutor's office.

     The prosecutor and his investigator moved for summary judgment on the basis of absolute immunity, and the trial court denied the motion.

     The appeals court found that the trial court applied an "incorrect evidentiary standard" in denying summary judgment, understanding the law to require it to assume that the factual allegations in a plaintiff's federal civil rights complaint are true when a defendant moves for summary judgment based on official immunity. Because of that, the trial court did not rule on the admissibility of evidence offered by the plaintiffs at summary judgment, but simply assumed that the factual allegations in the complaint were true "without regard to whether they had evidentiary support."

A correct statement of the law is that when a defendant makes a properly supported motion for summary judgment based on official immunity, the plaintiff has an obligation to produce evidence of his or her own. In such a case, the district court is not required (or even allowed) simply to assume the truth of challenged factual allegations in the complaint. In other words, a motion for summary judgment based on official immunity is governed by Federal Rule of Civil Procedure 56, just like all motions for summary judgment in civil suits in federal district court.

     The appeals court therefore vacated the trial court's order denying absolute immunity, and ordered further proceedings on the issue. On remand, the appeals court noted, the trial court should allow additional discovery, if appropriate, based on the evidentiary standard that the plaintiffs now must meet in responding to a properly supported motion for summary judgment. The trial court's prior "misunderstanding of the evidentiary standard," the appeals court ruled, "may have led it to be more restrictive in the discovery it allowed to plaintiff than it would have been it if had properly understood the standard." 

     Butler v. Cervantes, No. 02-57049, 370 F.3d 956 (9th Cir. 2004)

     » Click here to read the text of the appeals court decision below on the Internet. [PDF]

     EDITOR'S NOTE: While the case reported above involves prosecutors and an issue of absolute immunity, the broad language of the appeals court panel's decision would appear to make it also applicable to motions for summary judgment on the basis of qualified immunity.

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Arrestee's release of city and officers from civil liability in exchange for dismissal of criminal charges of domestic violence against her was fully enforceable. Alabama statute prohibiting the crime of "compounding," punishing agreements offering something of value in exchange for not seeking prosecution of a crime, did not apply to city attorney's offer of release agreement.

     A woman was involved in a verbal and physical fight with her former husband concerning care of their children. After he failed to pick the children up from daycare, she had her grandmother do it, and told her former husband, on the phone, that she "no longer needed his assistance with the children." He soon arrived at the home and was banging at the door.

     A physical fight occurred, and officers summoned to the scene believed that they were unable to determine the primary aggressor, but also believed that a crime had been committed and probable cause existed to make a dual arrest. They arrested both the woman and her former husband for domestic violence in the third degree.

     Her divorce attorney recommended that she sue the city and officers involved in her arrest, and she retained another attorney to represent her in the criminal proceedings. Both attorneys went with her to the criminal court proceeding. After consulting with both attorneys, the woman agreed to sign a release of civil liability in return for dismissal of the criminal charges. She subsequently testified that she signed the release because she felt that if she didn't she would go to jail. Her former husband also signed a similar release. Criminal charges were then dropped.

     Four months later, the woman filed a federal lawsuit against the city and the officers, asserting claims for both alleged violations of civil rights and Alabama state law claims.

     The federal trial court found the release agreement enforceable under both federal and state law, and dismissed the lawsuit. A federal appeals court upheld that result.

     The plaintiff argued on appeal that the release she signed is a contract which violates the Alabama state "compounding" statute criminalizing the offer or acceptance of any thing of value in consideration for refraining from seeking prosecution of a crime.

     The federal appeals court found that, giving a "normal meaning" to every word in the statute, and considering its context, the actions of offering the release to the plaintiff did not constitute "refraining from seeking prosecution of a crime" or "refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to the crime."

     While both the plaintiff and the city received a "thing of value" when the release was signed, the city attorney was not "refraining from seeking prosecution" when he dismissed the charges after the signing of the release.

The City Attorney prosecutes. He does not seek to prosecute. A common understanding of the word "seek" is to "look for," or "pursue" something. See Webster's Third New International Dictionary (1986). The City Attorney did not have to look for a prosecution; he already had "found" it.

     The court noted that this interpretation of the statute was fully consistent with the origin of the statute, which came from the Model Penal Code, Sec. 242.5, and modified the common-law crime of compounding, which was originally called "theftbote," referring to an agreement between a thief and his victim that the stolen property would be returned in exchange for an undertaking not to cooperate in prosecution.

     The purpose of the law of "compounding," the court reasoned, is to encourage reporting of crime by punishing agreements to forestall prosecution. Therefore, the central issue is whether to except from liability the victim of a crime who agrees to drop criminal charges if the alleged offender makes restitution for the harm caused.

     The appeals court found no legal authority for the contention that the compounding statute applies to a prosecutor's dismissal of charges against an individual in exchange for a general release of that person's civil claims relating to his criminal prosecution.

     Relying on Town of Newton v. Rumery, 480 U.S. 386 (1987), the trial court held that, barring ambiguity or allegations of fraud, the terms of the release document "must be given effect." The appeals court agreed, and found the release agreement fully enforceable, upholding the dismissal of the lawsuit.

     Penn v. City of Montgomery, No. 03-14207, 381 F.3d 1059 (11th Cir. 2004)

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Officers who sought an arrest warrant based on a corrections officer's alleged sexual misconduct with a female inmate had arguable probable cause for his arrest despite some inconsistencies in complaining prisoner's story. Probable cause existed for the arrest, based on all the officers knew, even if some of it was not fully expressed in the application for the warrant.

     An investigation was begun by a special investigations unit about claims that a female inmate had been sexually abused by a correctional officer at a New York correctional facility. During the investigation, a county police detective and a special investigations unit officer were informed by one inmate about another possible incident of sexual misconduct by another correctional officer.

     Following interviews with inmates who furnished more information about the alleged incident, the officers interviewed the suspected victim of the sexual misconduct. She told them that the correctional officer told her that if she wanted Tylenol for her toothache, he wanted to "see my body." She pulled up her pajamas and showed him her breasts, she claimed, and the next time, he told her that he wanted her to expose "my behind to him," but she allegedly told him no and instead displayed her breasts again.

     The correctional officer was subsequently arrested under a warrant, charging him with three counts of misdemeanor official misconduct, including allegedly threatening the inmate after she spoke to the investigators. Disciplinary charges against the officer were subsequently dismissed, and the criminal charges were also dismissed.

     The correctional officer filed a federal civil rights lawsuit against the investigating officers and county, asserting claims for false arrest and malicious prosecution. In denying the defendants' motion for summary judgment, the trial court found that there were factual disputes as to whether the defendants had probable cause for the correctional officers' arrest and prosecution.

     The trial court ruled that the arrest warrant secured was "obviously defective" because no supporting affidavit was presented to the magistrate, and the officer did not mention in the application that there were "conflicting statements" by the key witness, the complaining inmates. She allegedly told him at least two differing versions of the incidents.

     The appeals court disagreed. Even if the officer making the application did falsely imply that the allegations it contained were based on her own personal knowledge, that fact would not undermine a finding of arguable probable cause because the detective's "personal knowledge was not necessary to that finding." The appeals court found that if the officer had included all that she learned from her investigation, the application would have supported a reasonable belief that probable cause existed, based on the alleged victim's own statements, circumstantial evidence, and the statements of another prisoner. The detective also would have been aware that the correctional officer allegedly threatened the prisoner based on her statements.

     The appeals court also rejected the plaintiff correctional officer's argument that because of the complaining inmate's criminal and psychiatric history, the police detective should not have relied on her accusations to arrest him. The court noted that this alone is not enough to destroy probable cause or strip officers of qualified immunity on the basis of arguable probable cause.

     Instead, the applicable legal standard is whether officers "of reasonable competence could disagree on whether the probable cause test was met." Because the police detective here independently corroborated the essential details of the inmate's story by examining prison records, interviewing other witnesses and obtaining supporting depositions from them, and inspecting the premises to substantiate corroborating accounts, the test was met.

     While there were some inconsistencies in the complaining inmate's two versions of the story, the fact that she asserted in one statement but not the other that she was wearing panties, and in one statement, but not the other, that she was wearing pajamas rather than a nightgown were "not material to a finding of probable cause."

      The court also noted that the issue was not whether or not the correctional officer was actually innocent, but whether the police detective, based on all information she knew, had arguable probable cause to arrest him. The appeals court believed that if a corrected affidavit containing all of the information known to her at the time of the application had been submitted in support of a warrant application, reasonably competent officers could disagree whether there was probable cause for an arrest. The police detective was therefore entitled to qualified immunity.

       Alleged misconduct by the special investigating unit officer in creating a "doctored" transcript for use in the arbitration hearing concerning the disciplinary action against the correctional officer, the appeals court found, did not alter a finding that this officer was also entitled to qualified immunity, since this played no role in obtaining the arrest warrant, and they also had arguable probable cause for the arrest.

     The appeals court held that the county was also entitled to summary judgment since what entitled both individual defendants to qualified immunity was the fact that they had arguable probable cause for the arrest.

     Escalera v. Lunn, No. 03-7121, 361 F.3d 737 (2d Cir. 2004).

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Motorist's 38-day detention before a first appearance before a judge following an arrest by warrant violated his right to due process and shocked the conscience. Detainee was properly awarded $50,000 in damages and $46,929.50 in attorneys' fees and costs.

     An Arkansas motorist was ticketed for not having auto tags and vehicle insurance. When he failed to appear at his court hearing, bench warrants for his arrest were issued. When he was stopped for a traffic violation, he was arrested on the warrants, given a court date, and jailed. He failed to post bond, and remained in jail for 38-days prior to his court appearance.

     He sued the county and its sheriff and jail administrator for violation of his civil rights. The trial court ruled that his 38-day pre-appearance detention violated his right to due process, and entered a judgment against the county and jail administrator.

     While in jail, the detainee had complained and filed grievances arguing that "I should [have] seen a judge within 72 hours. [...] I want to know when you plan to obay [sic] the law and allow me to go to court." The jail administrator stated that he would have followed the same course of conduct if the detainee had been jailed for 99 days.

     A pre-trial detainee, a federal appeals court state, has a right to a prompt appearance in court after an arrest by warrant. The court said that the due process clause forbids an extended detention without a first appearance following an arrest by warrant. The county's policy stated that arrestees should be taken before a court within 72 hours after arrest, and operated by submitting a list of names of detainees to the court and then waiting for the court to schedule a hearing. "That policy attempts to delegate the responsibility of taking arrestees promptly before a court," the appeals panel noted, and ignores the lack of authority for long-term confinement, and was therefore "deliberately indifferent to detainees' due process rights."

     The appeals court found that the jail administrator helped establish and enforce the "deliberately indifferent" policy, and therefore could be individually liable, and he was not entitled to qualified immunity.

     The appeals court found that the failure of the county and jail administrator to take the plaintiff before a judge for 38 days "shocks the conscience," particularly in light of a state rule of criminal procedure requiring that an "arrested person who is not released by citation or other lawful manner shall be taken before a judicial officer without unnecessary delay."

     The appeals court upheld as proper an award of $49,000 in compensatory damages against the county and $1,000 against the jail administrator, along with an award of $46,929.50 in attorneys' fees and costs.

     Hayes v. Faulkner County, No. 03-3787 2004 U.S. App. Lexis 22521 (8th Cir. 2004).

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Officer was entitled to qualified immunity for shooting and killing a husband struggling on the floor with another officer summoned to the home because of a domestic dispute.

     A woman and her husband had a domestic dispute after they returned home from drinking at a restaurant. She told him that she would call the police if he did not calm down, after he started yelling and slamming his hand on a kitchen counter. She called 911 and told the dispatcher that her husband was "drunk, and he's getting very violent," although things were not "physical" yet, while stating that "it's gonna get there" and "my girls are here," referring to her children.

     Officers who arrived on the scene told the husband that they were going to "get you out of here," but he responded that "this is my house," and "I didn't do anything." One of the officers allegedly lunged forward and attempted to grab the husband, but he raised a hand and blocked him, causing the officer to stumble backwards. The officer regained his balance, grabbed the husband by the throat, and sprayed him several times in the face with Oleoresin Capsicum or "OC" spray.

     A physical struggle on the floor between the two ensued, with the other officer standing close by. The officer on the floor yelled out "I think he's going for my gun," and the other officer drew his firearm, pointing into the back of the husband's right shoulder. The wife then screamed and ran over to the officer on top of her husband and told the other officer not to shoot.

     She backed away when the officer's gun was pointed directly at her, and as she was backing away, she observed the officer fire his gun directly into the back of her husband's right shoulder, killing him. At the time of the shooting, the husband was still allegedly on his hands and knees. The entire incident took approximately three to four minutes.

     The appeals court found that it could not say, at the moment of the fatal shooting, that the shooting officer reasonably should have known that what he was doing violated the husband's constitutional rights. Even if the court assumed that the officer could see the husband's left hand on the floor at the moment of the shooting, it could not be disputed that the gun belonging to the officer on the floor was just inches from the husband's hand.

     The struggle between the husband and officer was "hostile and intense," and the circumstances were "extremely volatile and potentially dangerous, and the events were evolving rapidly." The appeals court found that the officer did not violate a clearly established constitutional right in shooting and killing the husband under the circumstances.

     The appeals court therefore ruled that the officer was entitled to qualified immunity.

     Parks v. Pomeroy, No. 03-2043 2004 U.S. App. Lexis 23262 (8th Cir.2004).

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City's policy requiring everyone participating in a protest demonstration to submit to a metal detector search violated both the First and Fourth Amendment.

     An organization called "School of the Americas Watch" ("SAW") engages in annual protest demonstrations each November, seeking to pressure the federal government to cut funding to the Western Hemisphere Institute for Security Cooperation, better known as the "School of the Americas" (SOA). The SOA is run by the United States Army and housed at Fort Benning, Georgia. It trains military leaders from other countries throughout the Western Hemisphere in combat and various counterinsurgency techniques. The annual demonstrations, which have occurred for thirteen years, have drawn approximately 15,000 people.

      Each year a small number of protesters are arrested for trespass-type offenses when they enter onto the Fort's property and attempt to march to the school, which is located a few miles inside the base, but no weapons have previously been found at the protest site.

     In November of 2002, the City of Columbus, Georgia instituted a policy requiring everyone wishing to participate in the protest to submit to a metal detector search at a checkpoint a couple of long city blocks away from the protest site. If the magnetometer indicated the presence of metal as a protester was walking through it, police would physically search that individual's person and belongings. Police estimated that protesters would have to arrive approximately 1-1/2 hours to 2 hours ahead of time to get through the metal detector checkpoints to the protest site.

     The city justified the decision by the "elevated" terrorism threat assessment level issued by the Department of Homeland Security, and the fact that protesters in previous years did not immediately disburse at the end of the scheduled protest. It also pointed to the fact that the protesters had allegedly invited several "affinity groups," including anarchists, to attend the protest who had allegedly instigated violence at other, unrelated protests such as the one that led to a riot in Seattle during the 1999 meeting of the World Trade Organization.

     The protesters filed a federal civil rights lawsuit claiming that the metal detector searches would violate their First and Fourth Amendment rights. The trial court disagreed, dismissing the complaint and denying a motion for the issuance of an injunction, so the city conducted the metal detector searches as planned, both in November of 2002 and November of 2003, while an appeal was pending.

      A federal appeals court ruled that the metal detector searches should have been enjoined, and that they violated both the Fourth and First Amendments. The appeals court rejected the argument that "post September 11, 2001," it could determine that the preventive measure of a magnetometer "at large gatherings is constitutional as a matter of law."

     Nothing in the substance of the trial court's reasoning, however, reflected a concern that the demonstration at issue "was actually a potential source or target of terrorist threats," the appeals court stated.

This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment's protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protesters.

     The court noted that the Fourth Amendment contains "no exception for large gatherings of people," so it rejected the city's request for the "broad authority to conduct mass, suspicionless, warrantless searches."

     Such authority, the court stated, if granted, could easily apply to any large event, including high school graduations, church picnics, public concerts, art festivals or a Fourth of July parade. And, it commented, if the government began to "pick and choose" among large gatherings, "viewpoint discrimination would likely result."

We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation's threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the "elevated" alert status does not aid the City's case.

     The appeals court also rejected arguments that the city had a special need to conduct the searches in question, or that they were reasonable. The court stated that the past demonstrations at the location had been large and "unusually expressive" gatherings, but had also been "unblemished by violence." Therefore, persons attending the demonstrations retained a legitimate expectation of privacy in their person and possessions.

     The court noted that police could still stop and frisk any person who they had reasonable suspicion to believe was carrying a weapon, and if they had probable cause to believe that a person was carrying a weapon, they could either conduct a full-fledge exigent circumstances search or put the person under arrest and conduct a search incident to arrest. Because of these alternatives, the city "cannot plausibly claim that it has no alternative but to accost innocent people who show no indication of possessing contraband or weapons." The mass, warrantless, suspicionless search policy therefore violated the Fourth Amendment.

     The appeals court found that the policy also violated the First Amendment by imposing a burden on free speech and association imposed through the exercise of a government official's "unbridled discretion," and in constituting a form of prior restraint on speech and assembly, since people seeking to participate in the protest had to receive the "prior permission" of officers manning the checkpoints.

     The appeals court also found that the search policy was impermissibly implemented based on the content of the protesters' speech, and did not constitute reasonable time, place and manner restrictions, because they were not content-neutral.

Finally, even putting aside First Amendment analysis, the search policy constitutes an "unconstitutional condition;" protesters were required to surrender their Fourth Amendment rights in order to exercise their First Amendment rights.

     The appeals court ordered the trial court to issue appropriate injunctive relief against further application of the policy.

     Bourgeois v. Peters, #02-16886, 2004 U.S. App. Lexis 21487 (11th Cir. 2004).

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Indiana's curfew statute violated minor's First Amendment rights, even with the inclusion of an affirmative defense for minors arrested while going to or from First Amendment protected activities, since subjecting them to the possibility of arrest may improperly "chill" such activities, federal appeals court rules.

     A parent and her minor children challenged Indiana's curfew law, Ind. Code §§ 31-37-3-2 and 31-37-3-3.5, claiming that it violates the First Amendment rights of minors. The trial court denied the plaintiffs' motion for a preliminary injunction, noting that the statute contained an "affirmative defense" for minors arrested while going to or from First Amendment protected activities or while participating in them, and therefore did not violate the minors' First Amendment rights or impede the due process rights of parents to direct their children's upbringing without undue interference from the government.

     A federal appeals court, however, found that even with the existence of the "affirmative defense" (a defense that must be specifically raised at trial or else is waived), "the new curfew leaves minors on their way to or from protected First Amendment activity vulnerable to arrest and thus creates a chill that unconstitutionally imposes on their First Amendment rights."

     The plaintiff minor was arrested along with three other friends shortly after 11 p.m. as they left a restaurant where they had stopped to eat after attending a school soccer game. The curfew statute sets a curfew of 11 p.m. on weekday nights and 1 a.m. on weekend nights for minors ages 15-17, and 11 p.m. every day for minors under 15, unless accompanied by a parent, guardian, custodian or other adult specified by the parent, guardian or custodian. The statute also exempted minors participating in, going to, or returning from lawful employment, a school sanctioned activity or a religious event.

     A trial court found that this was constitutionally flawed as it contained no exception for general First Amendment activity, and the Indiana legislature then amended the statute to eliminate the prior exceptions and created instead an affirmative defense for minors if they were accompanied by parents, guardians, etc. or were participating in, going to or coming from lawful employment, a school sanctioned activity, a religious event, an emergency involving protection of a person or property from an imminent threat of serious bodily injury or substantial damage, an activity involving the exercise of the child's rights under the First Amendment or similar provisions of the Indiana state Constitution, such as freedom of speech and the right of assembly, or an activity conducted by a nonprofit or governmental entity that provides recreation, education, training, or other care under the supervision or one or more adults. (Engagement in interstate or international travel is also included).

     The plaintiffs, unconvinced that the new affirmative defense for First Amendment activity cured the deficiency sought an injunction, since it offered "no real protection for minor plaintiffs involved in First Amendment activity who still might be vulnerable to arrest before they could assert a defense." The plaintiff parent was concerned about the potential expense and time involved in launching a First Amendment defense if her children were arrested for participating in First Amendment protected activities, and the fact that their arrest would subject them to a breathalyzer test, a urine test, and an "intrusive interview." She therefore argued that the new statute still "chills" her children's abilities to engage in these types of activities.

     The defendants argued that the curfew law is constitutional and serves the compelling governmental interest in lowering the incidence of drug and alcohol use by youth, decreasing crime committed by and against minors, fostering parental involvement in children's conduct, and empowering parents who wish to set limits on their children's nighttime activities.

      The appeals court stated that minors have a fundamental right to freedom of expression protected by the constitution.

A juvenile's ability to worship, associate, and speak freely is therefore not simply a privilege that benefits her as an individual, but a necessary means of allowing her to become a fully enfranchised member of democratic society. "People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble." In short, minors have First Amendment rights worthy of protection.

     The appeals court agreed that the curfew statute was content neutral and "does not disproportionately impact First Amendment rights," burdening minors who want to attend soccer games as much as it burdens those who wish to speak at a political rally. At the same time, it noted that a wide range of First Amendment activities occur during curfew hours, including political events, death penalty protests, late night sessions of the Indiana General Assembly, and neighborhood association meetings. A number of religions also mark particular days or events with late-night services or prayers, such as midnight services on Christmas Eve, commemoration of the Last Supper with an all-night vigil on Holy Thursday, Jewish observance of the first night of Shavuot by studying the Torah all night, and late-evening Muslim prayer all through the month of Ramadan.

Late-night or all-night marches, rallies, and sleep-ins are often held to protest government action or inaction. And it is not unusual for political campaigns, particularly in the whirlwind final hours before an election, to hold rallies in the middle of the night. Thus, during the last weeks of the 1960 presidential campaign, then-Senator John F. Kennedy addressed a group of University of Michigan students at 2:00 a.m. on the steps of the Michigan Union. In unprepared remarks, he asked the students whether they would be willing to devote a few years of their lives working in underdeveloped countries in order to foster better relations between the people of those nations and the United States. The students responded with a petition calling for the creation of the Peace Corps, which came into being the following year. These are but a few examples. The curfew ordinance regulates access to almost every form of public expression during the late night hours. The effect on the speech of the plaintiffs is significant.

     In order not to violate the First Amendment, the court found, a statute like the curfew law which are content neutral regulations which incidentally impact expression requires:

(1) that the regulation is within the constitutional power of the government; (2) that it furthers an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of free expression (in other words, content neutral); and (4) the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest.

      The appeals court found that the statute advanced an important governmental interest in the safety and well-being of children and combating juvenile crime. And, when a child is engaging in activity that would "conclusively establish" that they were engaged in First Amendment activity, they would not have probable cause to make an arrest---i.e., children picketing the governor's residence after curfew hours or attending a Midnight Mass.

     Officers would not, however, have to take a minor's word that they were going to or returning from a midnight political rally. "Any juvenile who chooses to participate in a late-night religious or political activity thus runs the risk that he will be arrested if a police officer stops him en route to or from that activity and he cannot prove to the officer's satisfaction that he is out after hours in order to exercise his First Amendment rights."

     Therefore, the court found, because the affirmative defense imposes no duty of investigation on the arresting officer, "as a practical matter it protects only those minors whom the officer has actually seen participating in protected activity."

     The appeals court also rejected the argument that the curfew law left ample alternative means of First Amendment expression, since such activities could be conducted before curfew hours:

More often, however, the late hour is closely linked with the purpose and message of the activity. Take Back the Night marches and rallies frequently extend to and after midnight in order to protest the crimes that jeopardize the security of women at night. Executions of prisoners on death row often are carried out shortly after midnight or in the early hours of the day, and so are routinely attended by all-night vigils held by those for and against the death penalty. Kristallnacht (Night of Glass) is commemorated with late-night prayers and vigils because it was after midnight one evening sixty-five years ago when Nazi hooligans looted and destroyed Jewish businesses, homes, and synagogues in Germany.

     The appeals court found that the curfew law, while not forbidding minors from exercising their First Amendment rights during curfew hours, "does forcefully discourage the exercise of those rights." The "chill that the prospect of arrest imposes on a minor's exercise of his or her First Amendment rights is patent."

      The appeals court therefore found that the curfew law, even with the new affirmative defense, was not "narrowly tailored" to service a "significant governmental interest and fails to allow for ample alternative channels for expression." The trial court was directed to enjoin the enforcement of the statute.

     Hodgkins v. Peterson, No. 01-4115, 355 F.3d 1048 (7th Cir. 2004)

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A "zero tolerance" policy allowing more severe treatment of children than adults, under which 12-year-old girl was arrested for eating a single french fry in a train station, while adults were given citations, was not unconstitutional.

      A 12-year-old girl was arrested, searched, and handcuffed, her shoelaces were removed, "and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later -- all for eating a single french fry in a Metrorail station" in the District of Columbia. It was the start of the school year and the Washington Metropolitan Area Transit Authority (WMATA) was once again getting complaints about bad behavior by students using the station. In response WMATA embarked on a week-long undercover operation to enforce a "zero-tolerance" policy with respect to violations of certain ordinances, including one that makes it unlawful for any person to eat or drink in a Metrorail station.

     The "zero tolerance" policy, however, resulted in adults typically receiving a citation subjecting them to a fine of $10 to $50. Because D.C. law did not provide for the issuance of citations for non-traffic offenses to those under eighteen years of age, zero-tolerance of the no eating rule resulted in the arrest of "every offending minor but not every offending adult."

     Upholding this result, a federal appeals court noted that:

The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

      Under the new policy, juveniles eating in the train station are given written warnings, with a letter notifying their parents and school, and only after the third infraction in a year is a juvenile formally prosecuted. Citations are also now given to juveniles.

      A federal civil rights lawsuit filed by the girl's mother on her behalf claimed that the girl's arrest violated the equal protection component of the Fifth Amendment because adults eating in the train station were not arrested, and that the arrest was an unreasonable seizure under the Fourth Amendment. The complaint sought declaratory and injunctive relief against the policies leading to the arrest, and expungement of the girl's arrest record.

      On the equal protection claim, the court noted that "youth is not a suspect classification," so that use of it as a classification by government must only bear a rational relationship to a legitimate goal. The appeals court also rejected the argument that the case involved infringement on a fundamental right--the right of freedom of movement.

The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest. That is true even with respect to minor offenses.

     The court found that the no-citation policy for minors was "rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts."

     The court noted that issuing a citation to a child is "complicated" by the fact that there is often no "ready way" to ensure that the child is providing accurate identifying information, since a child often does not carry identification, and there is nothing to stop a child from giving an officer a false name or even "the name of the miscreant who pushed them on the playground that morning." While the appeals court joined the trial court in questioning the "wisdom" of the policy, it concluded that it was not its place to "second-guess" legislative judgment.

      The appeals court found that the plaintiffs' claim that the arrest was an unreasonable seizure was easily settled by reference to the recent U.S. Supreme Court holding in Atwater v. City of Lago Vista, #99-1408, 532 U.S. 318 (2001), in which a woman challenged the constitutionality of her arrest for violating a state statute requiring all motorists and front-seat passengers to wear seat-belts. In that case, as with the present one, there was no dispute that the plaintiff had violated the statute in the presence of the arresting officer and that state law authorized her arrest, even though the offense was only punishable by a minor fine.

      In Atwater, the Court reasoned that "the standard of probable cause 'applies to all arrests, without the need to "balance" the interests and circumstances involved in particular situations,' " and concluded that "if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."

     The appeals court applied this in the immediate case, and found no violation of the Fourth Amendment in the officers arresting the girl for the minor offense of eating in the train station.

     Hedgepeth v. Washington Metro Area Transit Auth., No. 03-7149, 2004 U.S. App. Lexis 22230 (D.C. Cir. 2004).

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Employer whose drug intoxicated employee shot a police officer responding to a domestic dispute he was having with his wife was properly held liable for $800,000 in compensatory and $500,000 in punitive damages. Evidence showed that supervisors were aware of, and even encouraged, work crew to use drugs to stay "alert" and awake while repairing railroad tracks.

     A Texas police officer coming out of a restaurant encountered a man arguing with his wife in a car outside their motel room. The man threatened his wife with a gun, and the wife jumped from the moving car, screaming for help. As the officer approached the vehicle, the husband shot him with a .22 caliber pistol, causing severe injuries which resulted in the officer being unable to work for almost a year. The husband subsequently pled guilty to attempted capital murder, and was sentenced to ten years in prison.

     The man and his wife were in the motel because of his employment with a company that operates equipment that repairs railroad tracks. The employer sends a crew of twelve to fourteen employees to travel with a machine for about three months at a time, working thirteen to fourteen hour days, including travel time, up to six or seven days per week. At the end of each day, the crew and their female companions stay at a motel paid for by the company.

     The husband and his crew allegedly began using crystal methamphetamine in order to stay awake and alert. He subsequently claimed that at one time, he was even given time off by his supervisors to "obtain more drugs" for the crew. Prior to the shooting incident, the husband was allegedly "strung out" on the drugs, exhibiting slurred speech, being unable to walk upright, appearing exhausted and glassy-eyed. It was while he was in this condition that he began arguing with his wife at the end of a long workday, and took the argument outside to his vehicle before shooting the officer.

     The injured officer filed a lawsuit against the employer claiming that it was negligent in its retention of an incompetent, unfit, or dangerous employee, in its supervision, in its failure to exercise proper control of its employee, and in its negligent encouragement and aiding and abetting of drug use.

     A jury found in favor of the officer, finding that the employer's actions proximately caused his injuries and constituted gross negligence. It awarded him $800,000 in compensatory damages and $500,000 in punitive damages.

     An intermediate Texas appeals court upheld this result. It found that the employer had a duty to prevent the employee, who was incapacitated by drugs used on and off the job, from causing an unreasonable risk of harm to others, including the officer. The evidence showed that company supervisors knew about the drug use, and encouraged it for the purpose of keeping employees "alert" and awake on the job, and were negligent in their exercise of control over the employee after they knew or should have known that he posed a danger to others.

     Additionally, there was also evidence that the employer had failed to take appropriate corrective action after the employee had previously attacked another crew member's female companion for attempting to assist his wife days before the shooting.

     The appeals court also found that the evidence was sufficient to show that the employer was grossly negligent, justifying the award of punitive damages. Such gross negligence must be based on an act or omission involving an "extreme degree" of risk, based on the probability and magnitude of potential harm to others, and the existence of a "subjective awareness" of the risk involved, with the defendant acting in "conscious indifference" to the rights, safety, or welfare of others. The court found that this test was met in this case.

     Loram Maintenance of Way, Inc. v. Ianni, No. 08-02-00049-CV, 141 S.W.3d 722 (Tex. App. 2004).

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Federal appeals court overturns summary judgment for city and county in lawsuit by homeless persons claiming that they have an unconstitutional policy or custom of seizing and destroying their property without proper notice and hearing.

      Homeless persons in Cincinnati, Ohio filed a federal civil rights lawsuit against the city and Hamilton County, claiming that the defendants had violated their Fifth and Fourteenth Amendment rights to due process of law by destroying their personal property without notice and without any right to reclaim the items taken. The city paid the county to provide clean-up services, with crews of persons sentenced to community service and assigned to the county probation department, led by a field supervisor, providing litter collections and ground maintenance of city-owned lots. Some of those lots had homeless persons living on or near them.

     The trial court granted summary judgment for the defendants, but a federal appeals court reversed, reinstating the lawsuit.

     The evidence in the case showed that a homeless man and his wife were living under a viaduct in Cincinnati, and that when the couple returned to their living space they found a crew from the county taking away their property. When they asked for the return of their property, the work crew supervisor allegedly told him that "I'm not allowed to; we have been given orders to clear out under all the bridges." They made an effort, subsequently, to locate their property. Although the city's sanitation division told them that their property would be "held for 30 days," they were not told where it was located, and a worker with a homeless assistance organization was told by the sheriff's office that "the stuff from the homeless sites is thrown away."

     Five homeless individuals initially filed the suit, but three have subsequently died. The lawsuit did not contest the city's authority to remove personal property from municipally-owned areas, but contended that the practice of doing so without notice and a hearing, and destroying the property after confiscation violated due process of law.

     The appeals court noted that the trial judge relied exclusively on "undisputed testimony" from supervising police officers who said that the work crews are told to separate personal belongings from trash, and that personal belongings are then inventoried in the police property room where they are held, according to one officer, for a year before they are thrown away. From this, the trial court concluded that any destruction of the plaintiffs' property that occurred at the homeless site would be "unauthorized." Under Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984), unauthorized deprivations of property by government are not violations of due process so long as post-deprivation remedies are available, so the court concluded that no due process violation occurred. The plaintiffs were free to sue the city and county after the fact either for damages or to get their property back.

     The appeals court, however, rejected the finding that the supervising officers' testimony was "undisputed." It found instead that the plaintiffs presented "substantial evidence" suggesting that the city and county had a custom and practice of hauling to the dump all unattended property found at the sites in question, including testimony by a field supervisor for the county probation department. He testified that he and his work crews followed police directions, and that the "standard cleanup" procedure was that officers directed the probationers to put "all items in bags" and then put the bags into a sanitation truck. He said that he had "never" observed a police officer segregating any of the items and saying that some should be saved, and that the items are all "hauled off to the trash, to the dump."

      A police officer present during the three days of cleanup in mid-October, 2001 when the plaintiffs' property was taken supported this testimony. He distinguished the cleanup of homeless property from the department's general policy for dealing with personal property found at other locations around the city, stating that any unattended property found elsewhere is taken back to the station, logged, and held as found property, so that if someone can prove that the property is theirs, it is returned to them.

     For purposes of summary judgment, therefore, there was a genuine issue of material fact created by this testimony contradicting the evidence presented by the city and county. Summary judgment was therefore inappropriate.

     The appeals court further found that there was a genuine issue of material fact as to whether adequate notice was provided to homeless persons like the plaintiffs. "The established precedent is that individuals whose property interests are at stake are entitled to a 'notice and opportunity to be heard.'" The city argued that it published a notice in the local newspaper, but the plaintiffs argued that such a notice is insufficient "particularly when the educational and financial restraints of the homeless community are considered." The appeals court ordered that the trial court also resolve this issue on remand.

     Cash v. Hamilton County Dept. of Adult Prob., No. 03-3916 2004 U.S. App. Lexis 23756 (6th Cir. 2004).

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Manager of medical office had a right to deny entry to probation officer and police officer at a time when the office was closed to the public. Arrest warrant they had for probationer who occasionally did odd jobs for office did not authorize entry for a search, in the absence of a search warrant for the office or exigent circumstances. Probation officer was not entitled to qualified immunity for entry.

     A probationer who sometimes performed "odd jobs" for the office manager of a medical office listed the office with his probation officer as a place of employment. The probation officer called the officer manager to inquire about the probationer's whereabouts and was told that he would be visiting the office that afternoon to wash the doctor's car. When the office manager mentioned this call to the probationer, he left.

      The probation officer and several police officers later came to the office, knocking on the door and asking for the probationer. The office manager mentioned that she had told the probationer about the call, and the probation officer stated that she shouldn't "have told him that."

      The officer manager declined to give the officers consent to enter the office, as the office was then closed for lunch. She told them that the probationer would be back later to wash the car, and they accused her of hiding him, and one declared that he was probably her boyfriend, despite knowledge that the office manager was married to the doctor.

       The officers allegedly insisted on entering, so she closed and locked the door, calling 911 and asking that someone tell the officers to leave. The police dispatcher allegedly told her that there was no one at the station who could help her and directed her to open the door to admit the officers. The officers continued to pound on the door, and she relented and let them in. The probation officer himself subsequently testified that he thought the officers were going to knock the door down.

     The officers and probation officer looked around various rooms in the office, and showed the office manager an arrest warrant for the probationer. One of the officers placed the office manager under arrest for attempting to withhold consent for the officers' entry. The officer originally claimed that the arrest was for resisting arrest, but later changed the charge to obstruction of justice, which a judge subsequently dismissed.

     The office manager sued the probation officer, the police officers who accompanied him, the city which employed the police officers, and the Department of Corrections, which employed the probation officer. She asserted claims for unreasonable search, as well as state law claims for false arrest, malicious prosecution, invasion of privacy and trespass. The trial court denied the probation officer's motion for qualified immunity, and a federal appeals court upheld this result.

     The appeals court found that the evidence was sufficient for a jury to conclude that the plaintiff's Fourth Amendment rights were violated.

Offices and other workplaces are among the areas in which individuals may enjoy such a reasonable expectation of privacy. [...] Absent exigent circumstances, police must have a search warrant to enter any area in a place of business that is off-limits to the general public.

     The appeals court rejected the probation officer's argument that merely entering the office was insufficient to constitute a "search" for Fourth Amendment purposes as too narrow, as a "search" can be any "governmental act that violates a reasonable expectation of privacy."

     Because the Fourth Amendment applies to offices, and the office manager had a reasonable expectation of privacy in the office at the time the probation officer arrived because it was then closed to the public, a warrant or some other exigent circumstance was necessary to support his entry. In this case, the probation officer did not have a search warrant and "can point to no exigency justifying his search."

     The arrest warrant that the probation officer had for the probationer would have been sufficient to allow him to enter the probationer's home if he had reason to believe that he was there, but it was "clearly insufficient, however, to authorize him to enter the premises of any third party, even if he believed" the probationer was there. An officer may legally search for the subject of an arrest warrant in the home of a third party only by first obtaining a search warrant, the appeals court noted, and the court found that the same rule applies not only to homes, but to "any areas belonging to third parties." The arrest warrant, therefore, did not authorized unconsented to entry into the office at a time it was closed to the public.

     The appeals court also rejected the probation officer's argument that he had merely followed the lead of the police officers in entering the office.

     O'Rourke v. Hayes, No. 03-10795, 378 F.3d 1201 (11th Cir. 2004)

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Summary judgment for officers on motorist's illegal search claim overturned because of a material issue of fact as to whether a firearm seized was visible from outside the vehicle.

     An Ohio motorist was involved in a minor traffic accident with an off-duty police officer from a neighboring town. Two officers from the Lancaster, Ohio Police Department responding to the scene placed the motorist in the back of their squad car and then found a gun on the floor of his vehicle, arresting him and taking him to the county jail, where he allegedly either refused or was denied medical care.

     He filed a federal civil rights lawsuit for an alleged unlawful search of his car, also claiming preferential treatment for the off-duty officer in violation of equal protection, and unlawful denial of medical attention. A federal appeals court found that, while the evidence was insufficient for the latter two claims, there was a material issue of fact as to whether the search of the motorist's car, requiring further proceedings on this Fourth Amendment issue.

     The motorist's car allegedly struck the off-duty officer's pickup truck from behind when it suddenly stopped. He allegedly made sure, as he put his car into park, that the .45 semi-automatic weapon that he had secured in a well underneath the driver's seat was still in the well, concealed from view by a flap hanging down from the back of the seat. The off-duty officer then allegedly attacked him, and he was pinned to the ground, and then placed in the back seat of the vehicle of the arriving officers.

     The officers searched his car, which had been moved, by someone, off the street into a driveway. They discovered the .45 semi-automatic weapon, and a subsequent full search of the car also revealed a .32-revolver in a storage compartment in the driver's door of the vehicle. The motorist had stolen the .45 from his former employer, and both guns were fully loaded. He pled guilty to the theft charge, and other charges of carrying a concealed weapon were dismissed.

     The officers claimed that the motorist moved his own car subsequent to the time he had claimed that he ensured his gun was out of sight, and that the weapon was in plain view on the floor of the car, giving the police a reason to search the vehicle. The motorist argued that the search of his automobile resulting in the discovery of the .45 was in violation of the Fourth Amendment, and that his subsequent arrest was illegal as a result. "Automobiles, while generally exempt from the warrant requirement, are usually not searchable except upon probable cause that evidence will be discovered therein."

     The plain-view exception would apply if, as the officers stated, one of them could see from the passenger window the .45 peeking out from beneath the driver's seat. Under everyone's version of the facts, the motorist was attempting to conceal the .45 under the driver's seat, and the position of the gun when it was allegedly seen by the officers -- "peeking out" from underneath the seat -- made the attempted concealment immediately apparent, which was illegal under Ohio law, even if the gun was not loaded. But this was disputed, factually.

     Additionally, if the officers lawfully detained the motorist and they had grounds for reasonable suspicion that he had weapons in his car, they had a basis for a search of the car's interior, regardless of whether or not the weapon was in plain-view. While the motorist did not dispute that his initial detention was lawful--since he had been in a physical altercation with the off-duty officer and the two had to be separated, he argued that the officers had no reason to suspect his car contained a weapon. The arresting officers, however, claimed that the off-duty officer told them that the motorist said he had a gun in his car. Because of a factual dispute over this, however, summary judgment was inappropriate.

     Boone v. Spurgess, No. 03-3841, 385 F.3d 923 (6th Cir. 2004).

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Assault and Battery: Chemical

     Officers' use of chemical spray against an arrestee and pushing of him was not excessive force when he was on top of a man on the floor with blood on the floor around them when they arrived at his apartment, and the arrestee was not cooperative with them. Officers had no obligation to believe arrestee's claim that he had acted in self-defense after the other man, his brother-in-law, had attacked him in an intoxicated condition. Lindsay v. Bogle, No. 02-6201, 92 Fed. Appx. 165 (6th Cir. 2004).

Assault and Battery: Physical

     Louisiana man who claimed that four officers detained him during a Mardi Gras parade, with one of them intentionally handling him in a way that dislocated his shoulders adequately asserted a claim for assault, battery, and false imprisonment against the city, its insurer, and the city police department under a vicarious liability theory. Doss v. Morris, #02-31215, 86 Fed Appx. 25 (5th Cir. 2004). [PDF]

     Arrestee's federal civil rights lawsuit claiming that officers used excessive force against him was barred under the principles in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994), since he had been convicted of resisting an officer, and that conviction had not been set aside. The plaintiff did not claim that the officers used excessive force after he stopped resisting or that they used excessive force to stop his resistance, but instead that they attacked him with no reason to do so. Accordingly, his federal civil rights lawsuit was an improper challenge to the validity of his conviction. Arnold v. Town of Slaughter, No. 03-30941, 100 Fed. Appx. 321 (5th Cir. 2004). [PDF]

     Arrestee's claim that officer transporting him to county jail "kind of manhandled me around" and "roughly transported" him in the "manner in which" the officer "took me out of the car and stuff like that" was insufficient to state a claim for excessive use of force. Dimmitt v. Ockenfels, # 03-170-P-DMC, 220 F.R.D. 116 (D. Me. 2004).

Defenses: Statute of Limitations

     Motorists' claims against individual officers that they were stopped and searched without probable cause were time-barred when they were not named as individual defendants until after the statute of limitations expired. While the city had allegedly refused to release the officers' names to the plaintiffs, the plaintiffs only filed their lawsuit one month before the statute expired, and failed to pursue discovery requests to obtain the officers' names until seven months later, so they were not entitled to tolling (extension) of the statute of limitations. Hines v. City of Chicago, #03-1595, 91 Fed. Appx. 501 (7th Cir. 2004).

     An arrestee's civil rights claim for coercive interrogation and torture by officers allegedly used to compel him to falsely confess to a murder did not accrue, for purposes of the statute of limitations, until his conviction was overturned. Accordingly, his claims were not time-barred. Patterson v. Burge, #03C4433, 328 F. Supp. 2d 878 (N.D. Ill. 2004).

     Lawsuit against U.S. soldiers allegedly involved in My Lai Massacre on March 16, 1968 during the Vietnam War by residents of Vietnamese village was barred by applicable statutes of limitations. Soldiers did not act under color of state law, so federal civil rights claims under 42 U.S.C. Sec. 1983 were barred. Federal civil rights claims for direct violations of federal law under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), were barred under the four-year Utah state personal injury statute of limitations, which applied, despite the fact that the alleged misconduct occurred in Vietnam, as the federal court was not required to attempt to apply a non-existent "hypothetical" Vietnamese statute of limitations. Claims under the Alien Tort Statute, 28 U.S.C. Sec. 1350, were barred by a ten-year statute of limitations. International convention against the use of statutes of limitations to bar claims concerning war crimes did not apply, as the U.S. government had not adhered to that convention, and it also only applies to criminal prosecutions, and not to civil lawsuits for damages. Van Tu v. Kosters, #02-4209, 364 F.3d 1196 (10th Cir. 2004).

False Arrest/Imprisonment: No Warrant

     Arrest of motorist for driving under the influence of an intoxicant was adequately supported by probable cause even though she did not appear to be intoxicated in the officer's presence or at a hospital emergency room when she did not respond to attempts to rouse her at the scene of the accident, told the officer that she had taken a prescription narcotic and several other prescription medications, and a doctor at the hospital informed the officer that these medications could cause impairment and that the motorist had informed him that she "blacked out" prior to the accident. Keyes v. Ervin, #02-5509, 92 Fed. Appx. 232 (6th Cir. 2004).

     Police chief could reasonably believe that he had probable cause to arrest a man for disorderly conduct when he refused requests to cease videotaping a borough council meeting or move his video equipment, and thereby "disrupting" the meeting. Judgment in favor of defendant police chief, municipality, and mayor upheld. Tarus v. Borough of Pine Hill, No. 03-3100, 105 Fed. Appx. 357 (3rd Cir. 2004). [PDF]

      Arrestee's claims for false arrest were barred by his convictions for disorderly conduct and fleeing from an officer. Burch v. Naron, #04-6006, 333 F. Supp. 2d 816 (W.D. Ark. 2004).

False Arrest/Imprisonment: Warrant

     Woman arrested on a warrant for unlawfully depriving another of the custody of a child or visitation rights failed to show that the deputy sheriff who obtained the warrant fabricated any of the information in the warrant application. The deputy was therefore properly granted summary judgment in a false arrest lawsuit. Gray v. County of Los Angeles, #03-55012, 103 Fed. Appx. 112 (9th Cir. 2004).

     Probable cause existed for the arrest, pursuant to a warrant, of a civilian police department crime lab employee when work records and observations indicated she was at work at a second job as an aerobics instructor while claiming to work overtime at the crime lab. Her subsequent acquittal of the charges, based on her defense that she made up the overtime hours at other times, did not alter the result, since the investigating officer had ample facts, based on reasonably reliable sources of information to provide him with probable cause at the time of the arrest. Dintino v. Echols, #03-1517, 91 Fed. Appx. 783 (3rd Cir. 2004). [PDF]

Firearms Related: Intentional Use

     Officer did not use unreasonable force in shooting and killing an unarmed motorist who had crashed his car into a police vehicle and then continued to rev his engine, pushing it backwards and attempting to force it into a ditch. Officer's action was reasonable under the circumstances, and therefore did not violate the Fourth Amendment. Vanvorous v. Burmeister, #02-1150, 96 Fed. Appx. 312 (6th Cir. 2004).

     Question of whether officers used excessive force in shooting a man was for the jury to determine, and they could believe, on the basis of the evidence, that the suspect, who had pointed a gun at the officers was trying to escape and disbelieve the plaintiff's asserting that he was handcuffed and in police custody at the time. Federal appeals court upholds jury verdict for defendant officers. Palma v. Edwards, No 03-2019, 103 Fed. App. 3 (7th Cir. 2004).

     Officer acted in an objectively reasonable manner in shooting and killing an intoxicated belligerent suspect who ignored repeated orders to drop his gun when he raised both his arms simultaneously while still holding the gun. Estate of Martinez v. City of Federal Way, No. 03-35210, 105 Fed. Appx. 897 (9th Cir. 2004).

First Amendment

      Officer violated arrestee's First Amendment rights by arresting him for disorderly conduct for yelling obscenities at a Canadian flag being carried in parade for the purposes of expressing his political opinion about the Canadian government's lack of support for U.S. military actions in Iraq. Officer was not entitled to qualified immunity from liability, as the arrestee's comments did not constitute "fighting words," and a reasonable officer would have known that there was no probable cause for an arrest. Levine v. Clement, No. CIV. A. 03-30206-KPN, 333 F. Supp. 2d 1 (D. Mass. 2004).

Freedom of Information

     A document concerning two individuals' interview with the FBI concerning the activities of a Lyndon LaRouche-affiliated group, the National Caucus of Labor Committees (NCLC), could be withheld from disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 under an exemption for information compiled for law enforcement purposes if the disclosure could reasonably be expected to reveal the identity of a confidential source. Billington v. U.S. Dept. of Justice, No. Civ. A. 92-0462, 301 F. Supp. 2d 15 (D.D.C. 2004).

Governmental Liability: Policy/Custom

     Plaintiffs failed to show that an official city policy or custom of deliberate indifference to the need for training of officers on the use of deadly force caused the death of a motorist shot and killed by an officer during a pursuit of his vehicle. Genuine issues of material fact as to whether the officer acted negligently, however, barred summary judgment for the city in a Texas state law claim. Lopez-Rodriguez v. City of Levelland, Texas, No. 03-10843, 100 Fed. Appx. 272 (5th Cir. 2004). [PDF]

Interrogation

     Man who was pardoned after his rape and murder conviction was called into question by DNA evidence failed to show that the officers who interrogated him coerced a false confession for purposes of asserting a civil rights due process claim. In addition to being given a Miranda warning before the interrogation, the plaintiff produced no evidence that there was any psychological or physical abuse of him by the officers. Washington v. Buraker, No. Civ.A. 3:02CV00106, 322 F. Supp. 2d 702 (W.D. Va. 2004).

     An interrogation which never resulted in any confession used in criminal proceedings could not be the basis for a federal civil rights lawsuit by an arrestee claiming that the interrogators violated his Fifth Amendment right against compelled self-incrimination. Gibson v. Picou, #03-3035, 101 Fed. Appx. 154 (7th Cir. 2004).

Malicious Prosecution

     Indictment of arrestee for second-degree attempted murder charge barred his claims for false arrest and malicious prosecution, in the absence of any proof that the indictment was returned because of a suppression of evidence, perjury, fraud, or other government misconduct. Rivas v. Suffolk County, No. CV95-387, 326 F. Supp. 2d 355 (E.D.N.Y. 2004).

     Officer was entitled to qualified immunity in motorist's lawsuit asserting claims for malicious prosecution and false arrest based on a pursuit that concluded with the motorist's vehicle colliding with a fire hydrant. Based on the motorist pleading guilty to disorderly conduct charges in exchange for the dismissal of other charges against him, the plaintiff could not show that the prosecution terminated in his favor or that the officer did not have probable cause for the arrest. Timmins v. Toto, No. 02-9206, 91 Fed. Appx. 165 (2nd Cir. 2004). [PDF]

Racial/National Origin Discrimination

     Jury in federal civil rights lawsuit by Arabic owners of New York delicatessens could properly find, from the evidence presented, that a special task force did not single their business out for enforcement efforts on the basis of their national origin. The enforcement efforts concerned outdated food, trash buildup, loitering, overpricing of goods, and improper sales of drug paraphernalia and single cigarettes. The list of delis to be targeted by the task force was based on those with the greatest number of complaints. On an unlawful search and seizure claim, the jury could find, from the evidence, that the business owners consented to the search of the premises. While the jury verdict came three days after the September 11, 2001 terrorist attack on the World Trade Center attributed to persons of Arabic ethnicity, the plaintiffs were not entitled to a new trial on the basis of possible bias by the jury, when they failed to seek either a delay of the trial or a mistrial after the attacks occurred. Saleh v. City of Buffalo, #01-9298, 80 Fed. Appx. 119 (2nd Cir. 2003). [PDF]

Search and Seizure: Home/Business

     Property owner could not pursue unlawful search and seizure claim against sheriff on the basis of his entry into his pasture, since he had no reasonable expectation of privacy in the pasture where he kept his cattle. Schroeder v. Kochanowski, No. 03-4108-JAR, 311 F. Supp. 2d 1241 (D. Kan. 2004).

Search and Seizure: Person

     Officers had sufficient reasonable suspicion for an investigatory stop of a restaurant patron when restaurant personnel told them that customers had overheard him discussing bank robberies with his companions and that he appeared to be a person identified as a wanted bank robber on a television program. Eisnnicher v. Bob Evans Farms Restaurants, No. 2:02-CV-1020, 310 F. Supp. 2d 936 (S.D. Ohio 2004).

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

     Publication: Community Policing Beyond the Big Cities. National Institute of Justice, U.S. Department of Justice. [PDF] (November 2004). Can police and sheriffs in small cities and rural areas conduct community policing? This NIJ Research for Policy (NCJ 205946) discusses a study of eight law enforcement agencies in small cities and rural areas that have implemented a wide variety of problem-solving initiatives. Researchers identified five progressive stages of community policing. Community policing was most successful when officers worked closely with residents and other local partners to develop innovative approaches to solving local problems.

     Publication: Delayed Notice Search Warrants: A Vital and Time-Honored Tool for Fighting Crime, U.S. Department of Justice. (September 2004). [PDF]

     Publication: Department of Defense Nonlethal Weapons and Equipment Review: A Research Guide for Civil Law Enforcement and Corrections. National Institute of Justice, U.S. Department of Justice. [PDF] (October 2004). This NIJ Special Report (NCJ 205293) provides a detailed equipment review designed to give civil law enforcement organizations a greater understanding of DoD's nonlethal weapons program and currently used nonlethal technologies. Five categories of nonlethal technologies are reviewed: chemicals, electrical devices, blunt impact munitions, directed energy, and miscellaneous or hybrid systems. Appendix A discusses the selection process and includes descriptions of DoD's Joint Nonlethal Weapons Program and similar weapons programs in branches of the military, Special Operations Command, and the U.S. Coast Guard, as well as civil law enforcement agencies' less-lethal weapons.

     Publication: Impact Munitions Use: Types, Targets, Effects. National Institute of Justice, U.S. Department of Justice. [PDF] (October 2004). Law enforcement officers use impact munitions to subdue or arrest suspects with significantly less likelihood of anyone being killed or seriously injured. This NIJ Research for Practice (NCJ 206089) draws on data from a survey of law enforcement and corrections agencies to examine more than 370 incidents in which impact munitions were used. The report details how impact munitions fill a gap in the weapons continuum and describes how distance is a key factor in injuries associated with the use of impact munitions. It also looks at the relatively small number of fatalities that resulted from the use of impact munitions.

     Publication: Reducing Gun Violence: The St. Louis Consent-to-Search Program, National Institute of Justice, U.S. Department of Justice [PDF] (November 2004). The third report in NIJ's Reducing Gun Violence series evaluates an innovative police program that used community-based sources to identify homes where juveniles might be harboring guns. Police then sought parental permission to search for and confiscate illegal guns. A nationally recognized success in its first year, the Consent-to-Search program subsequently experienced serious implementation problems. This report (NCJ 191332) describes the program's setbacks and implications for community policing.

     Publication: Toward Safe and Orderly Schools—The National Study of Delinquency Prevention in Schools Research in Brief, National Institute of Justice, U.S. Department of Justice [PDF] (November 2004). What are schools doing to prevent delinquency and promote school safety? This NIJ Research in Brief (NCJ 205005) presents findings from a national survey of elementary, middle, and secondary schools. Problem behavior is widespread and most common in urban areas and middle schools. Schools have adopted a large and diverse array of activities, curricular programs, and security measures, but many of these are unproven or poorly implemented. Key characteristics of successful programs and how schools can improve program quality and implementation are identified.

     Publication: Violence Against Women: Identifying Risk Factors, National Institute of Justice, U.S. Department of Justice [PDF] (November 2004). This NIJ Research in Brief addresses whether sexual and physical abuse in childhood and adolescence are risk factors for becoming a victim of violence against women as an adult. It combines the results taken from two studies, one of which followed college women and men for 4 years, and the other, which followed low-income, mostly black women who had been victims of childhood sexual abuse. Each study found that child sexual abuse alone was a risk factor only when combined with adolescent sexual abuse. Although each study examined a narrowly defined population, taken together, both studies came to remarkably similar conclusions.

     Report: Report of Justice Department's Intellectual Property Task Force. (October 12, 2004). [PDF]. The task force examined intellectual property issues relating to criminal law, civil law, international treaties and obligations, legislative and regulatory proposals and overall public awareness. In addition to recommendations regarding civil and antitrust enforcement of intellectual property laws, the Task Force's proposals include: (1) Charging and prosecuting all intellectual property crimes whenever federal law applies, including organized crime, fraud, and illegal importation cases, in addition to strengthening the Justice Department's ability to bring those cases; (2) Updating the legal tools that help the United States to charge IP criminals overseas under American law; (3) Encouraging respect for intellectual property rights through youth education programs; and (4) Increasing cooperation with individuals, businesses, and industries that have been victimized by IP theft.

     Statistics: Crime and the Nation's Households, 2003, Bureau of Justice Statistics, U.S. Department of Justice, Office of Justice Programs. Presents national prevalence estimates for the percentage of households with one or more persons who were victimized by crime as measured by the National Crime Victimization Survey. Analyses provide household prevalence estimates for violent and property crimes and information on those households experiencing vandalism and intimate partner violence. Findings are presented by race and Hispanic origin, by region, by urban, suburban or rural location and by household size. Overall trends since 1994 are included. Comparisons with 2002 are made. Highlights include the following: * The percentage of households experiencing crimes, about 15%, did not change significantly between 2002 and 2003. * In 2003 about 3 in 1,000 households included a member victimized by an intimate partner, such as a spouse, ex-spouse, boyfriend, or girlfriend. * About 1 in every 26 households in 2003 were either burglarized or had a member age 12 or older who was victim of a violent crime committed by a stranger. (10/04) NCJ 206348 Press release | Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Reference:

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

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