CONTENTS

Surgeon awarded $33 million in damages for permanent nerve damage to hand, resulting in inability to perform surgery unassisted, following tight handcuffing when detained by Los Angeles police who mistakenly believed that the rental car he was driving was stolen. Police department responsible for $14.2 million of award, with rental car firm which placed license plates on car which were reported stolen to pay $18.8 million.

     A surgeon from Miami who was visiting Los Angeles, California rented a car. The car rental company placed license plates on the car which belonged to a car which had been reported stolen. As a result, police officers stopped the vehicle and handcuffed the doctor.

     While the doctor complained that the handcuffs were too tight, officers allegedly declined to loosen them. Subsequently, the doctor claimed, he suffered permanent nerve damage to his hands. It was subsequently also argued that the officers failed to lock the cuffs, which might have prevented the cuffs from ratcheting tighter when he moved. The doctor was also allegedly forced to lie face down on the ground while handcuffed.

     The doctor's injuries allegedly prevent him from performing surgery unassisted. He is an associate professor of clinical urology at the University of Miami School of Medicine, and urological reconstructive surgery is his specialty. He sued both the police department and the car rental agency, claiming that the injuries had essentially destroyed his practice, and that the defendants acted negligently.

     A state court jury awarded a total of $31 million to the plaintiff doctor, including damages for pain and suffering, loss of future earnings, and past and future medical costs. It also awarded his wife $2 million for loss of consortium. The damages were apportioned with the police department held responsible for $14.2 million and the defendant car rental company held responsible for $18.8 million of the award.

     Gousse v. City of Los Angeles, No. BC252804, Superior Court of Los Angeles County, filed June 21, 2001, jury award, November 19, 2003. Reported in the Los Angeles Times, November 20, 2003.

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Arrestee could not pursue false arrest or due process claims against former deputy chief, on the payroll of drug dealer, who allegedly had him arrested and convicted on the basis of evidence planted by dealer who suspected that the arrestee was a federal informant. The arrestee was engaged in regular deliveries of drugs, and there was no evidence that the deputy chief had knowledge that the evidence was planted at the time of the arrest.

     A man operated a cocaine trafficking business in Illinois, and had a top assistant who he subsequently suspected of being a federal informant. Also on his payroll was a deputy police chief who allegedly protected his operation and also investigated and arrested many of his competitors. When the top assistant became suspected of being an informant, the top drug dealer allegedly set him up for arrest by having cocaine planted in his car, and then notifying the deputy chief of the location of the man and his vehicle. The deputy chief ordered police to stop, search, and arrest the man. He pled guilty, was sentenced, and served time in jail.

     After his release, the arrestee learned that the deputy chief had been prosecuted, and that the top drug dealer, testifying for the government, disclosed that he had planted cocaine in the car the arrestee was driving when arrested. He sued the city, its police department and a number of government officials, including the deputy chief. Ultimately, the litigation boiled down to claims against the deputy chief by the arrestee for false arrest and violation of due process. The trial court denied the former deputy chief's motion for qualified immunity on the due process claim, and dismissed the plaintiff's false arrest claim.

     On an appeal by both parties, a federal appeals court found that the claim of a violation of due process by manufactured evidence could not be pursued, given the plaintiff's assertion of a Fourth Amendment false arrest claim based on the same facts. A due process claim may not be pursued when a more specific constitutional right, such as the protection against unreasonable search and seizure, applies to the facts. Further, the claim that the plaintiff called violation of due process was really one for malicious prosecution, which the court ruled was barred by the existence of an Illinois state common-law cause of action for malicious prosecution.

     The appeals court also ruled that there was insufficient evidence that the former deputy chief had knowledge that the arrest was based on "planted" evidence, which precluded both the due process and the Fourth Amendment claims. The top drug dealer's testimony indicated that he had not told the deputy chief about the planting of the evidence until after the arrest was accomplished. The deputy chief, therefore, could have believed that the drugs present in the vehicle were merely part of the arrestee's regular deliveries, and there was no evidence that he learned otherwise prior to the arrestee's guilty plea. Judgment in favor of the defendant was therefore ordered on all claims.

     McCann v. Mangialardi, No. 02-2409, 337 F.3d 782 (7th Cir. 2003).

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Whether arrestee's detention for 72 hours before an arraignment for a probable cause hearing violated his rights depended on whether he was being held pursuant to his warrantless arrest for drunken driving or on the basis of a warrant from another jurisdiction, as detention on the warrant would not require a probable cause hearing within 48 hours. Arrestee also presented a viable claim that he was subsequently improperly imprisoned for failure to pay a fine and court costs following his conviction for drunken driving, without inquiry into his ability to pay.

     A man was stopped and arrested for drunk driving, and once taken into custody, it turned out that there was an outstanding warrant for his arrest from another jurisdiction. He was kept in custody without arraignment for a probable cause hearing for almost 72 hours. He was later convicted of the drunken driving charges and sentenced to fifteen days in jail and a fine and court costs totally $620, which he agreed to pay off in $50 monthly installments.

     There was no inquiry at the hearing into his ability to pay the fine. The arrestee subsequently failed to make some payments on the fine, and also did not appear on a hearing concerning this issue, and was subsequently arrested on a bench warrant and imprisoned for a period of time to "work off" the fine and costs by working at a recycling center for $4.25 per hour during his incarceration.

     The arrestee subsequently filed a federal civil rights lawsuit against the county, county court judge, and sheriff, alleging that it violated his constitutional rights following his arrest to not furnish him with a probable cause hearing within 48 hours, and that it also violated his constitutional right not to be imprisoned for civil debt to incarcerate him for failure to pay fines and court costs without inquiring into his ability to pay.

     A federal appeals court found that there was a genuine issue of material fact as to whether the plaintiff's Fourth Amendment rights were violated by the failure to provide arraignment for a probable cause hearing within 48 hours. It was disputed whether the arrestee was being held, during that time, on the basis of his warrantless arrest for drunken driving, or on the basis of the outstanding warrant from the other jurisdiction. If the basis of the continued detention was the warrant, no probable cause hearing was required within the forty-eight hours. On a warrantless arrest, on the other hand, after the expiration of the 48-hour period, the burden shifted to the defendants to justify why it was not possible to provide such an arraignment for a probable cause hearing or that specified facts excused the failure to do so.

     The court found that further proceedings were also required to determine whether the arrestee's subsequent incarceration for failure to pay the fine and court costs violated his rights. The plaintiff presented evidence that the county had a policy of requiring payment of fines and costs within two years regardless of the ability to pay, and other evidence from which a reasonable judge or jury could conclude that he was improperly imprisoned for failure to pay the fine and costs, regardless of whether he could do so.

     Alkire v. Irving, #00-4567, 330 F.3d 802 (6th Cir. 2003).

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Officer who shot a suspect as he attempted to drive away in a vehicle did not act reasonably if there was no evidence that he posed a threat of serious harm to others or was armed with a weapon.

     An officer learned that a man was wanted on a felony no-bail warrant for drugs and other offenses, and heard a report of a "ruckus" at his mother's house. The suspect attempted to flee in a vehicle, getting into a Jeep and trying to start it. The officer ran to the Jeep with her handgun drawn and ordered him to stop. As the suspect fumbled with his keys, she hit the driver's side window several times with her handgun and, on the third or fourth try, broke the window. She had mace and a baton, but allegedly did not use them, instead trying to grab the car keys.

     Just after she broke the window, the suspect succeeded in starting the Jeep. Either before he pulled away, or just after he started to do so (the evidence being conflicting), the officer shot him in the back. Because he did not stop, the officer believed she had missed him, but she did not take a second shot, believing the risk to be too great as he began to drive away and others being in the potential line of fire. The driver subsequently pulled over and passed out.

     The driver claimed that he may have been shot accidentally while the officer was reaching through the window grappling with him, while the officer claimed that she shot him intentionally, stepping back and away from the driver's window once the Jeep started moving and firing one shot through the rear side window on the driver's side.

     He sued the officer and the city, alleging excessive use of force. The trial court granted summary judgment for the defendants, but a federal appeals court reversed.

     The appeals court found that there was a genuine issue of fact as to whether the officer was justified in using deadly force. He had not committed a crime indicating that he posed a significant threat of serious physical harm and she had no indication that he had a gun or other weapon. The appeals court concluded that the officer's conclusion that he posed a significant risk to officers or others in the area was unreasonable. There was no indication that he was reaching for a weapon.

     At the same time, the appeals court found that the city was not liable, and that the city's failure to discipline the officer after the shooting did not amount to a ratification of the officer's decision to use deadly force.

     Haugen v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003).

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Deputy sheriff had probable cause to arrest protester passing out leaflets about "jury nullification" in a courthouse lobby who allegedly failed to leave when asked to do so. There was no First Amendment violation, as the courthouse lobby was not a traditional public forum.

     A 2-1 majority of a three judge panel of a federal appeals court has ruled that summary judgment was properly granted to a deputy sheriff in a federal civil rights lawsuit brought by a protester who was arrested while passing out leaflets about "jury nullification" in the lobby of a courthouse. The arrestee allegedly refused to leave when requested to do so, and/or defied the deputy's order to "step aside" to discuss the matter. The lawsuit claimed violation of the arrestee's First Amendment rights, and arrest without probable cause.

     All three judges agreed that the arrestee had no valid First Amendment claim. The court found that the lobby of a courthouse is not a traditional public forum open to protesters and that county officials had no obligation to permit protests there. The arrestee, accompanied by a friend dressed in a judicial robe and carrying a sign reading, "Why do judges hide the truth," passed out leaflets to those entering the courthouse asserting that jury members could (and should) ignore judges' legal instructions, and simply make their own decisions about whether persons accused of crimes should be convicted, or whether the laws prohibiting certain activities were wrong.

     The arrestee took a photograph of two deputies who approached him. One deputy asked him to leave and why he had snapped the photo, and the arrestee then threatened to file a lawsuit, as well as defying the deputy's orders to either leave or "step aside" to discuss things.

     First Amendment rights, the court noted, are not absolute.

Although the advocacy of jury nullification could no more be flatly forbidden than advocacy of Marxism, nudism or Satanism, we cannot think of a more reasonable regulation of the time, place, and manner of speech than to forbid its advocacy in a courthouse.

     The two-judge majority also found that it was clear that the deputy had probable cause for the arrest, both based on the protester's actions and a telephone warning received earlier in the day that there would be a "disturbance" of some kind at the courthouse. The judges indicated that the security needs of the courthouse provided a strong basis for taking the protester into custody.

Braun's arrest occurred after the catastrophic bombing on a federal building in Oklahoma City in 1995 engendered heightened fears for the security of government buildings. Even before then, courthouses had been recognized as potentially dangerous places because of the presence of criminal defendants, bitterly divorcing spouses and custody-contesting ex-spouses and other highly stressed, emotionally excited and even violence-prone litigants.

     The third judge, however, believed that summary judgment on the false arrest claim was improper, and would have allowed the case to go forward to trial on that claim.

     Braun v. Baldwin, No. 02-4143, 346 F.3d 761 (7th Cir. 2003).

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New York intermediate appellate court upholds award of $3 million for the pain and suffering of a hostage shot and killed by police during an exchange of gunfire with a bank robber. Court also upholds an award of $969,001 to the hostage's brother for emotional distress in seeing his sister shot and killed. Court orders further proceedings, however, on the possible apportionment of liability between police and the bank robber. Police department guide and order on deadly force and hostage situations were properly admitted into evidence for purposes of showing whether officers deviated from them.

     A woman was taken hostage by a bank robber and subsequently was shot and killed by police officers during an exchange of gunfire with the robber. Her estate brought a claim for wrongful death, and her brother, who was present on the scene, and watched his sister die, also asserted a claim for emotional distress. Both city police officers and transit police officers were on the scene.

     Officers alerted to the robbery exchanged shots with the robber, who was fleeing, and at one point, he grabbed the hostage who had just exited from her apartment building. The robber was clearly surrounded, with approximately 30 officers present, with nowhere to go, and his capture was prevented only by the presence of the hostage.

     One officer positioned himself to fire at the robber, and the robber shot in his direction. This officer ducked, and another officer believed that this meant that the officer was down and injured, and accordingly fired shots in the robber's direction. A volley of shots fired by the robber and officers ensued, and the hostage was struck by three bullets, one of which struck her in the heart and was fired by an officer. The hostage's brother, who was present, saw her get shot and die.

     In the lawsuit, relevant portions of the city Police Department's Patrol Guide addressing the use of deadly force, and procedures to use in hostage situations, were introduced into evidence, along with an interim order implementing the deadly force rules. Both of these documents directed that officers not discharge a weapon when doing so will unnecessarily endanger innocent persons. For hostage situations, they directed that officers on the scene must contact a hostage negotiator as well as contacting Emergency Services, and that "firearms control" must be established and maintained. There was some testimony from witnesses to the incident that indicated that it appeared that no one took command at the scene and that no orders were given.

     An expert witness testifying for the plaintiff stated that any officer who fired his weapon under these circumstances violated the protocols and procedures set force in the NYPD Patrol Guide, and that officers violated proper procedure by failing to summon a hostage negotiator or have a ranking officer at the scene take command and establish control over the use of firearms at the scene.

     Additional alleged violations included an officer firing four shots as he ran in the direction of the robber and the hostage, one officer shooting at the robber without knowing the location of the hostage, and yet another officer shooting at the robber despite the fact that he was then using the hostage as a shield.

     An expert witness for the defendants who had devised the NYPD procedures for hostage situations testified that the scene was "unstable," that the robber was still seeking to flee, and that the hostage provisions of the Patrol Guide were therefore inapplicable to the case. Even the defendants' witness, however, stated that officers should not have returned fire so long as they had good cover, and that one officer's action in firing many shots also violated proper procedure.

     The jury found that the officers had been negligent, and that this negligence caused the hostage's death. Her estate was awarded $4.5 million for her conscious pain and suffering, which was later reduced by the trial court to $3 million. The hostage's brother was awarded $969,001 for emotional distress.

     Upholding the result in general, but ordering further proceedings on the apportionment of fault, an intermediate appellate court rejected the defendants' argument that they were entitled to judgment as a matter of law because of "justification," i.e., because they were entitled to use deadly force in an effort to arrest the robber. The court found that this defense was applicable only to criminal charges, and not in a civil wrongful death case.

     The court also rejected the defendants' argument for application of the "professional judgment" rule immunizing police officers for discretionary actions. This immunity, however, the court noted, is not extended to situations where a governmental employee, such as a police officer, violates acceptable police practice, as was alleged in the immediate case.

     The court also rejected the argument that the police department's rules and guidelines set forth in the Patrol Guide and interim order, not being either statutes or ordinances, should not have been introduced into evidence as a basis for imposing liability against the city. Policy directives that bar the use of the Patrol Guide to prove municipal negligence in cases involving claims by injured police officers against the city did not apply to a lawsuit by an injured civilian, the court found, where the issue is the "standard of care to be employed by police officers using deadly physical force against others during which an innocent bystander is injured or killed."

     The court also noted that the department manuals in question "do not impose a higher duty of care than appropriate for common law negligence," and therefore did not pose a risk that internal departmental memoranda will be "improperly substituted for traditional common law standards establishing the relevant duty of care. The court found that the evidence present established that officers violated "clearly established protocols and procedures."

     The court rejected arguments that the damages awarded either to the estate or the brother were excessive under the circumstances, but found that the trial court had improperly failed to consider the apportionment of liability (between the officers and the robber or others). If defendants could demonstrate that they were responsible for only 50% or less of the total liability, then their responsibility for "non-economic loss" would not exceed its share of the liability. The court noted, however, that under New York state law, if the officers were found to have acted in "reckless disregard" of the safety of the hostage or her brother, then no such apportionment would take place.

     The appellate court therefore ordered a new trial on the issue of apportionment and whether the officers acted recklessly.

     Lubecki v. City of New York, 758 N.Y.S.2d 610 (A.D. 1st Dept. 2003).

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Officer's action of drawing his gun when approaching a suspect's vehicle at the conclusion of a one-mile pursuit was not unreasonable under the circumstances. Officer was entitled to qualified immunity for the shooting of the motorist when he accidentally slipped and his gun discharged.

     On New Year's Eve, officers in Arkansas observed a man driving a truck which slid sideways as it exited a parking lot and pulled onto the highway. The officers activated their siren and blue lights, and sought to stop the vehicle. The driver later claimed that he drove for a mile without incident and was unaware of the police car behind him.

     At some point, he saw the police lights and heard the siren, but claimed that he believed that the police were pursuing someone else. When the police car passed and pulled in front of his truck, the driver swerved and his truck landed in a ditch. He exited his truck and raised his arms in the air, and did not have a weapon.

     Two of the officers approached. One of the officers had pulled his gun as he approached, and slipped when he was within a few feet of the motorist. His gun discharged and a bullet struck the motorist in the chest, severely injuring him. The motorist was not charged with any offense.

     The injured man and his spouse sued the officer who shot him, and other defendants. The trial court denied the officer's motion for summary judgment on the basis of qualified immunity, ruling that there was a genuine issue of fact as to whether a reasonable officer would have known that his action in drawing his gun was unreasonable and therefore unlawful under the circumstances.

     A federal appeals court agreed that the officers intended to stop the motorist's vehicle and terminate his freedom of movement by a show of authority intentionally applied. And the defendant officer also drew his gun with the intent to cause the motorist to submit to his authority by threat of force.

     The appeals court found that the officers could reasonably have suspected, based on the motorist's driving around midnight on New Year's Eve, that he was intoxicated and posed a serious and immediate danger to himself and to others. Despite the motorist's claim that he was unaware that he was being pursued, a reasonable officer could have believed that the motorist was actively engaged in fleeing to resist arrest. This gave them probable cause to stop his truck, so that seizure was objectively reasonable.

     The officer's further action of drawing, but not cocking, his gun, and hurrying down the slippery terrain toward the motorist's truck in the ditch could not be found to be objectively unreasonable under the circumstances. The officer did not intend to shoot the motorist, so the only question was whether drawing his weapon was justified.

Any other interpretation of this record is gleaned from 20/20 hindsight as opposed to judging the circumstances from the perspective of a reasonable officer following customary police practices.

     The officer was therefore entitled to qualified immunity from liability.

     McCoy v. City of Monticello, No. 02-2941, 342 F.3d 842 (8th Cir. 2003).

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Officer was entitled to qualified immunity for shooting and killing a suspect who turned around and drove his vehicle towards officers at the conclusion of a high-speed pursuit. Officer could reasonably believe that the motorist was posing a significant threat of physical injury or death to himself and others.

     A motorist was observed driving erratically and was believed to possibly be intoxicated. Rather than respond to officers, however, he fled, and ultimately led a number of both Wyoming and South Dakota police officers on a high-speed chase through both states at speeds sometimes over 100 miles per hour. At the conclusion of the chase, he drove his vehicle off of the road and into a pasture down a hill.

     Once there, he turned his vehicle around and started to drive back towards the pursuing officers. One of the South Dakota officers told his partner to slow down their vehicle, and then jumped out of the car, carrying a shotgun. Shortly thereafter, the suspect's car collided head on into the officer's vehicle. The officer used the shotgun to fire four shots at the suspect, which killed him. Evidence in the case did not clearly establish whether the shots were fired after the collision, during it, or shortly before it.

     The decedent's mother sued the officer, others involved in the chase, and officials from both states, alleging that the use of deadly force under these circumstances was improper. The trial court rejected a motion for summary judgment on the basis of qualified immunity for the shooting officer and his partner. The trial judge reasoned that the use of deadly force might have been inadequately justified if the suspect's vehicle were disabled following the collision, and was also concerned about when the shots were fired.

     A federal appeals court reversed. It noted that the case was somewhat unusual, in that the shooting officer and his partner were the "only surviving witnesses," but stated that this fact did not relieve the plaintiff of the burden of showing that there were material facts in dispute.

     The appeals court rejected the argument that the officer's partner was involved in a "seizure" of the decedent. It pointed to the fact that this was not a case where an officer engaged in the pursuit of a vehicle stopped a suspect by crashing into him, either intentionally or accidentally. Instead, the suspect in this case "intentionally caused the collision by driving his car head-on" into the officer's car. The officer driving the vehicle indicated that he was attempting to avoid the collision by backing up, and an aerial photo of the scene showed that the suspect actually "drove a short distance away after the collision." Accordingly, no "seizure" of the suspect occurred from the collision, so there was no basis for denying the driving officer qualified immunity.

     The driving officer was also found to be not sufficiently involved in the shooting officer's decision to shoot the suspect to make him liable in any way for that action. There was no indication that he knew that the other officer planned to shoot the suspect or that he authorized it.

     The appeals court found that the shooting officer acted in an objectively reasonable manner in using deadly force. The suspect's actions in driving towards the officers' vehicle to intentionally crash into it, together with the officer's testimony that, after the collision, he believed that the suspect was backing up and turning his car in his direction, intending to run him over, gave him ample grounds for the use of the shotgun.

     Even if the court assumed, as the plaintiff argued, that the officer fired all four shots after the suspect collided with the officers' vehicle, it stated that it would still conclude that his conduct was objectively reasonable because he had probable cause to believe that the suspect "posed an imminent threat of serious physical harm to himself and to others" as evidenced by his action in driving head-on into the officers' car. The court noted that once a suspect threatens an officer in this manner, deadly force may also be used if necessary to prevent escape.

     The shooting officer was therefore entitled to qualified immunity since there was no violation of any clearly established constitutional rights.

     Hernandez v. Jarman, No. 02-3519, 340 F.3d 617 (8th Cir. 2003).

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Older African-American motorist taken into custody after being stopped with an expired driver's license, did not present adequate evidence of racial motivation for either the stop or the arrest. Officer was not entitled to qualified immunity for making the initial traffic stop, because of a factual dispute as to whether the motorist was driving erratically, but holding the driver in custody to determine whether he was the person sought in an outstanding 22-year-old felony warrant for someone at his address was objectively reasonable.

     A California police officer stopped an older African-American motorist who he claimed had been driving erratically and "weaving." The motorist disputed this, and later asserted that the officer, who is white, stopped him because of his race.

     The officer's investigation showed that the motorist's license was expired, and also that there was an outstanding felony warrant (although it was 22-years-old) for a person with the same last name at the driver's address. Additionally the physical description of the person sought was somewhat close to the motorist's description. The officer took the motorist into custody, but he was subsequently released a number of hours later. No criminal charges were brought, nor was any traffic citation issued.

     The arrestee sued both the city and the officer, claiming that the officer acted in a racially discriminatory manner. Further, the arrest was claimed to be without probable cause. The fact that the motorist had an expired driver's license, standing alone, was not a sufficient basis for a custodial arrest under state law.

     A federal appeals court upheld summary judgment for the defendants on the racial discrimination claim. It found that the plaintiff failed to present any real evidence of racial motivation for the stop. The mere fact of the motorist's race and the officer's race, combined with the fact that no traffic citation was issued, did not suffice to make out a claim for violation of the right to equal protection. Essentially, the court noted, the plaintiff "argues that because he is African-American, the officer is white, and they disagree about the reasonableness of the traffic stop, these circumstances are sufficient to raise an inference of racial discrimination." It found that no genuine issue of fact concerning racial animus or motivation had been created.

     The appeals court also found that, despite the fact that a custodial arrest for lacking a driver's license was not justified under state law, the officer could have reasonably believed that detaining the motorist to determine whether he was the person sought in the warrant was legal on the basis of the information he had. Since the officer did not violate clearly established law, he was entitled to qualified immunity from liability.

     Further proceedings on the legitimacy of the initial traffic stop, however, were upheld, because of a factual dispute as to whether or not the motorist was driving erratically in a manner which gave the officer a basis for the stop.

     Bingham v. City of Manhattan Beach, #01-56044, 341 F.3d 939 (9th Cir. 2003).

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Nightclub patrons strip-searched and detained for three hours because they were present during execution of search warrant on premises for evidence of crack cocaine transactions were properly awarded $100 in actual damages and $15,000 in punitive damages each. Sheriff was not entitled to qualified immunity for conducting searches without particularized reasonable suspicion or probable cause.

     A county sheriff in Texas obtained a search warrant for a nightclub, based on information received from a confidential informant that five individuals identified in the warrant were suspected of dealing crack cocaine there. When the search warrant was executed, approximately 100 patrons were detained inside the club for approximately three hours.

     During that time, officers conducted a pat-down search, strip search, and warrants check on each individual there. The sheriff subsequently testified that it was his standard policy to conduct a strip search on each person within the search area, with or without individualized probable cause. Additionally, the officers rehandcuffed each patron and continued to detain them after the strip searches until the entire search of the club and its occupants had been completed.

     Three of the patrons sued the county, the sheriff and other defendants, claiming that the strip searches had been illegal, as well as their prolonged detentions.

     A federal appeals court has upheld an award of $100 in actual damages and $15,000 in punitive damages to each of the plaintiffs, none of whom were among the five individuals named in the warrant as suspected drug dealers. The court rejected the sheriff's argument that he was entitled to qualified immunity, finding that conducting strip searches of individuals without particularized individual suspicion or probable cause under these circumstances violated clearly established law.

     The court did find, however, that it was not clearly established that the sheriff could not detain all individuals in the club until the search had been completed. It also rejected the defendants' argument that the damages awarded were excessive.

     Williams v. Kaufman County, No. 02-10500, 343 F.3d 689 (5th Cir. 2003).

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Homeowner did not have any reasonable expectation of privacy in a basement apartment he rented out to tenants, who allegedly grew marijuana there.

     A homeowner and his girlfriend lived in the first floor of his residence, and he rented out the basement to two tenants. An officer came to the home after the girlfriend reported a possible burglary, and checked the basement in response to her concerns. Believing that he smelled marijuana there or saw signs of marijuana growing, and noting a number of locked rooms, he summoned assistance and conducted a second search of the basement apartment, during which small marijuana cigarettes were discovered in an ashtray, as well as fluorescent lighting which officers suspected was being used to grow marijuana plants. A third warrantless search of the basement apartment was conducted, without permission. Searches of the main floor were also conducted on all occasions.

     They advised the girlfriend of her rights and she stated that although she never saw marijuana, the scent was so strong that she covered her vents to avoid it, particularly at nighttime. Search warrants were obtained for the residence and locked doors in the basement apartment were forced open, disclosing marijuana plants, paraphernalia, and other evidence of a drug growing operation, including paper records and receipts.

     The homeowner and the two basement tenants were arrested on drug charges. The trial judgment found that the initial warrantless search of the residence and basement apartment was constitutional due to exigent circumstances, but that the second and third warrantless searches were unconstitutional, and suppressed the evidence seized from the basement, also finding that the warrant for the basement was not supported by probable cause, absent the evidence from the second and third warrantless searches of the basement. The indictment was subsequently dismissed.

     In the homeowner's subsequent federal civil rights lawsuit, a federal appeals court has found that, since the basement was a separate apartment, rented to others, he did not have a reasonable expectation of privacy connected with it, and therefore could not assert claims for unreasonable search and seizure arising from the searches of the basement. Summary judgment on those claims was therefore upheld.

     The appeals court reversed summary judgment, however, on the second and third warrantless searches conducted of the main floor of the residence. It also found that the evidence discovered in the basement apartment did not establish probable cause to search the remainder of the house. Individual defendant officers, however, were entitled to qualified immunity from liability for these searches, as it was objectively reasonable for them to believe that there was not a "distinct boundary" between the two parts of the residence. They were not, however, entitled to qualified immunity on claims that they allegedly exceeded the scope of the warrant for the main portion of the residence in seizing documents, records, and pieces of jewelry not named in the search warrant.

     Shamaeizadeh v. Cunigan, No. 01-6326, 338 F.3d 535 (6th Cir. 2003).

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Police officer who allegedly subjected two African-American college students to a strip search after stopping them for speeding was entitled to qualified immunity for conducting the searches without reasonable suspicion that they were concealing contraband or weapons, for his alleged verbal abuse of them, and for the "humiliating" way in which the strip searches were allegedly conducted.

     A Georgia police officer who stopped two African-American college students for speeding. He demanded that the driver take a sobriety test, and when he refused, placed him under arrest. The officer later claimed, although it was disputed, that he found a beer can in the car, and a beer can pop-top on the person of one of the students. These items were not displayed for a video camera that the officer had which captured some of the traffic stop. The officer also placed the passenger under arrest, on the basis of an existing warrant for parole violation for a person with the same last name and birth date.

     The students claim that once at the police station, officers used racial slurs against them, placed them in choke holds, and strip-searched them, allegedly displaying a slender metal object and placing it near their buttocks while talking about the prevalence of prison rape.

     The arrestees filed a federal civil rights lawsuit against the arresting officer, the police chief, and the city, alleging violations of their Fourth Amendment rights to be free from unreasonable searches and seizures based on their arrests and the subsequent searches. The trial court granted summary judgment to the city and police chief, as well as to the officer on the false arrest claim, finding that there was probable cause to make arrests for speeding and a parole violation. The trial court denied, however, the arresting officer's motion for summary judgment on the search claim, holding that the plaintiffs had alleged an unconstitutional search, conducted without reasonable suspicion and in an unconstitutionally intrusive manner.

     A federal appeals court has reversed, agreeing that the alleged search, if conducted in the manner described, was unconstitutional, but finding that the officer was entitled to qualified immunity both for the search and the way it was allegedly conducted.

     "Arrestees who are to be detained in the general jail population can constitutionally be subjected to a strip search only if the search is supported by reasonable suspicion that such a search will reveal weapons or contraband," the court stated. The officer argued that he had reasonable suspicion to believe that the arrestees were concealing drugs, but the appeals court concluded that "these searches were not supported by reasonable suspicion."

     The officer's arguments, the appeals court found,

boil down to the following: two young men were speeding through rural Georgia in a rental car in the evening and, when stopped by law enforcement officials, appeared nervous and claimed to be lost. These factors are not sufficiently indicative of drug activity to support more than "an inchoate and unparticularized suspicion or hunch" that they were concealing drugs. [...]

The instant facts are insufficient to permit a strip search involving contact with the anus and genitals. The justification required to conduct a search increases with the degree of intrusiveness of a search, and the scope of the search must be commensurate with the officer's reasonable suspicions,

     There was no behavior by the arrestees consistent with an attempt to hide anything beneath their clothing during or after the traffic stop, the court stated, and the plaintiffs "had no apparent motive at the time of the traffic stop to conceal contraband underneath their clothing for smuggling into the jail." Additionally, both arrestees were subjected to a pat-down search at the scene of the traffic stop and again when they arrived at the station.

     The appeals court found, however, that as of January 22, 1999, the law in the 11th Circuit was not clearly established that an arrestee could not constitutionally be strip searched under the conditions alleged. The officer, therefore "did not have fair warning in 1999 that reasonable suspicion was required to conduct a strip search or body cavity search of an arrestee detained in the general jail population," and was therefore entitled to qualified immunity.

     The appeals court also found that if a jury believed the arrestees' version of how the strip searches were carried out, it could demonstrate that the searches were performed in an unreasonable and unconstitutional manner. The arrestees

were not searched in a private place, but were searched in the same room and at the same time. They were shoved against the wall without apparent provocation. When the men did not comply with [the officer's] orders to his liking, they were subjected to choke holds. A slender metal object was pushed between their buttocks, contacting each man's anus. This contact search was not performed by medical personnel, and the same slender object was used to touch each man's anus and genitals without any apparent sanitary safeguards. A jury could find that the searches were not performed with sensitivity and professionalism, but rather were performed in a degrading, humiliating and terrifying fashion, punctuated by taunting, threats, rough contact and abusive language unjustified by the surrounding circumstances or the conduct of the appellees and unnecessarily exacerbating the degrading and terrifying nature of the searches.

     The appeals court nevertheless concluded that "there are no materially similar precedents that provided" the officer "fair warning of the unconstitutionality of his conduct." He was therefore entitled to qualified immunity also on the way the searches were allegedly conducted. The court also found that the officer lacked "fair warning that his verbal abuse could violate the Constitution."

     While the arrestees "have alleged a search that a jury could conclude was unreasonably humiliating, degrading, and terrifying, the alleged conduct does not go 'so far beyond the hazy border' between reasonable and unreasonable conduct that every reasonable officer would have to know that it violated the Constitution," the court stated.

In sum, under the circumstances here -- the application of some physical force to keep apparently resistant arrestees against the wall during the search, and anal and genital contact with a slender object, all accompanied by verbal abuse but in the absence of any injury or anal penetration -- the law was not clearly established at the time that the searches would violate appellees' rights under the Fourth Amendment.

     Evans v. City of Zebulon, No. 02-16424, 2003 U.S. App. Lexis 23479 (11th Cir.).

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

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Assault and Battery: Physical

     Officers used unreasonable force in attempting to detain man with high blood pressure and diabetes who had committed no crime, but had simply changed his mind about waiting with them for requested ambulance to arrive after previously telling them that he was not feeling well. Officers were not entitled to qualified immunity for using force to detain him, and allegedly continuing to use force against him after he was handcuffed. Thompson v. Douds, No.2D02-3972, 852 So. 2d 299 (Fla. App. 2003). [PDF]

     Man arrested for burglary did not convince trial court that officers had thrown him out of a third story window of a school he was burglarizing, when his claim was asserted, for the first time, nine months later, and he had earlier admitted jumping from the window. Additionally, medical records showed no signs of an injury to his head, refuting his claim that the officers had hit him with a flashlight. Summary judgment entered for defendant officers. Jeffreys v. Rossi, 275 F. Supp. 2d 463 (S.D.N.Y. 2003).

     Officers acted in an objectively unreasonably manner in their use of force during arrest of motorist when they allegedly kicked him and subjected him to knee strikes after he was subdued and further use of force was unnecessary. Coleman v. Rieck, 253 F. Supp. 2d 1101 (D. Neb. 2003).

Defamation

     State investigator's allegedly defamatory statements to the FBI concerning an FBI agent's purported addiction to drugs and homosexual relationship with his psychiatrist were insufficient to support a federal civil rights claim for violation of his protected liberty interests in his employment. Defamation itself is not a constitutional claim, and an injury to reputation does not violate a protected liberty interest, nor does the disclosure of medical records. "Even an allegation of diminished employment opportunities resulting from harm to reputation is insufficient to state a due process claim." Walker v. Wilson, No. 01-6455, 67 Fed. Appx. 854 (6th Cir. 2003).

     Police detective was not liable for either defamation or intentional infliction of emotional distress under District of Columbia law for issuance of a press release identifying the plaintiff as having been involved in a murder, along with the arrestee's picture. The issuance of such press releases was within the scope of the duties of police investigators and it did not cause economic or physical harm to the plaintiff. Further, the release of the information involved the public's right to information and public safety. Liser v. Smith, 254 F. Supp. 2d 89 (D.D.C. 2003).

Defenses: Qualified Immunity

     Federal appeals court did not have jurisdiction to decide whether officers acted reasonably for purposes of their qualified immunity defense in a lawsuit seeking damages for injuries suffered when they allegedly improperly restrained plaintiff during an epileptic seizure. There were disputed versions of the facts of the incident, and the officers failed to limit their appeal to a "purely legal issue," requiring further proceedings to resolve factual disputes. Parks v. Darby Borough, No. 01-3421, 70 Fed. Appx. 64 (3d Cir. 2003). [PDF]

     Trial court's grant of partial summary judgment to property owner claiming that officers violated his Fourth Amendment rights by searching his backyard and ticketing his vehicles without a warrant was not immediately appealable, despite its rejection of the officers' qualified immunity defense, since the officers were not willing to accept the plaintiff's version of the facts for purposes of appeal, arguing that a genuine issue of material fact barred summary judgment for the property owner. Brocuglio v. Proulx, No. 02-7301, 67 Fed. Appx. 58 (2nd Cir. 2003). [PDF]

Defenses: Sovereign Immunity

     Under Connecticut law, state statutory requirement that sheriffs purchase personal liability insurance for damages caused by their wrongful acts was not a legislative waiver of sovereign immunity for claims against the state and sheriffs in their official capacity. The purpose of the statute was to protect the public from the sheriffs' acts and hold the sheriffs personally liable, not to authorize claims against the government. Connecticut Supreme Court also holds that an exception to sovereign immunity for acts by state officers in excess of their legal authority only applies to lawsuits seeking injunctive or declaratory relief, and does not authorize claims for monetary damages, overruling prior caselaw. Miller v. Egan, No. 16730, 828 A.2d 549 (Conn. 2003). [PDF] [For the concurrence in the case by two of the six Justices, also in PDF format, click here].

Defenses: Statute of Limitations

     In a lawsuit brought by the family of an man shot and killed by gang members after it was allegedly negligently revealed that he was an FBI informant, the right to bring the lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671-2680, accrued at the latest on the date when family members attended hearings at which the relationship between FBI agents and gang members was revealed and widely reported in the media. Accordingly, the court holds that the lawsuit should be dismissed as time-barred under the applicable statute of limitations. McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003).

Dogs

     Arrestee allegedly bitten by police dog while he was handcuffed and in custody did not sufficiently state a claim against the city or police department for inadequate training of its canine handlers when he failed to explain what training would have avoided his injuries. Additionally, it was undisputed that individual defendant trainer of police canine handlers did not instruct them that they could use the force of a police dog biting a handcuffed suspect. Viehmeyer v. City of Santa Ana, No. 02-56157, 67 Fed. Appx. 470 (9th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Statements by witnesses and bar bouncer, and officer's own observation of laceration on bouncer's head provided probable cause to arrest female bar patron for alleged assault on bouncer, despite her argument that the bouncer had assaulted her and that she claimed there were other witnesses who could support her version of the incident. Summary judgment granted for municipal defendants. Maxwell v. City of New York, 272 F. Supp. 2d 285 (S.D.N.Y. 2003).

     Under federal law, an indictment "fair upon its face, by a properly constituted grand jury" is dispositive as to whether there was probable cause for an arrest, so that police officers indicted on charges of tampering with records could not pursue false arrest civil rights claim. There was, however, a genuine issue of fact as to whether city officials engaged in retaliation against the officers in violation of their First Amendment right to express opinions about a matter of public concern, requiring further proceedings on that claim. Bakos v. City of Olmsted Falls, No. 02-3399, 73 Fed. Appx. 152 (6th Cir. 2003).

     Officer could have reasonably believed that he had probable cause to arrest a juvenile female for evading detection when she drove away as he ran up behind her vehicle calling out "police, stop," after seeing people begin to flee from the area around her vehicle when he shined a spotlight on it. Officer was therefore entitled to qualified immunity for making an arrest, but there were genuine issues of fact precluding summary judgment as to whether or not he was justified in using deadly force in firing at the tire of her vehicle after she allegedly pulled to the right, nearly striking him, as he ran alongside the vehicle. Flores v. City of Palacios, 270 F. Supp. 2d 865 (S.D. Tex. 2003).

     Arrestee's guilty plea to a charge of resisting arrest barred his federal civil rights claim against the officers for purportedly arresting him for disorderly conduct and assault without probable cause. Case v. Milewski, No. 01-3803, 327 F.3d 564 (7th Cir. 2003). [PDF]

False Arrest/Imprisonment: Warrant

     Property owner and manager were not "seized" for purposes of a Fourth Amendment claim as a result of the issuance of arrest warrants against them when they were both able to merely pick up a summons and complaint against them at the police station and had to attend court on several occasions before charges concerning alleged housing code violations were dropped. They suffered no "deprivation of liberty" by simply being required to attend court proceedings in this manner. Their claim that the warrants were issued without probable cause did not amount to "abuse of process" either, in the absence of a claim that officials who obtained the warrants intended to accomplish something other than their criminal punishment. Zak v. Robertson, 249 F. Supp. 2d 203 (D. Conn. 2003).

Firearms Related: Intentional Use

     A genuine issue of material fact as to whether a house occupant being arrested for disorderly conduct was or was not "lunging" at a police officer when the officer shot and killed him precluded summary judgment in favor of the officer in an excessive force lawsuit brought by the decedent's estate. LA v. Hayducka, 269 F. Supp. 2d 566 (D.N.J. 2003).

     Highway patrol officer did not violate the rights of an allegedly intoxicated motorist he shot and killed while fighting in the motorist's vehicle as the suspect attempted to drive off. Officer could reasonably have feared for his own life, as well as the life and safety of others traveling on the highway, having failed to prevent the suspect from driving and being in the motorist's vehicle struggling with him as it went down the road. Anderson v. Cash, No. 02-6356, 70 Fed. Appx. 251 (6th. Cir. 2003).

First Amendment

     First Amendment rights of "erotic dancing" business were not violated by city code prohibiting consumption of alcohol in establishments lacking valid liquor licenses. The ordinance in question did not regulate protected expression and applied equally to all businesses. Talk of the Town v. Dept. of Finance and Business Services, No. 01-15303, 343 F.3d 1063 (9th Cir. 2003). [PDF]

Negligent or Inadequate Investigation/Failure to Investigate

     Police detective did not have any duty under federal law to investigate claims that arresting officer engaged in criminal activity in using allegedly excessive force against arrestee, and was therefore entitled to summary judgment on federal civil rights claim against him asserted by arrestee. Hale v. Vance, 267 F. Supp. 2d 725 (S.D. Ohio 2003).

Miscellaneous: Towing

     Owner of auto which was impounded for evidentiary purposes and retained on condition that he pay towing and storage fees could not pursue civil rights claim to regain his auto when he failed to show that available state-law remedies were inadequate, violating his due process rights. Plaintiff did, however, have standing to challenge the constitutionality of the city's action in spray-painting his vehicle after 30-days of impoundment, as statute under which it was done only applied to abandoned, lost, stolen or unclaimed cars which the city had a right to dispose of. Lee v. City of Chicago, No. 02-1503, 330 F.3d 456 (7th Cir. 2003). [PDF]

Procedural: Appeal

     Federal appeals court could not review a jury verdict against the plaintiff on her claims for unreasonable search and seizure, false arrest, and malicious prosecution when she failed to challenge that verdict in the trial court. She could have done so by filing a motion for judgment as a matter of law or for a new trial. The trial court's prior denial of her summary judgment motion could not be reviewed by the appeals court once there was a full trial on the merits and an award against her by the jury. Eaddy v. Yancey, No. 02-2924, 317 F.3d 914 (8th Cir. 2003). [PDF]

Procedural: Discovery

     Plaintiff pursuing claim for death of arrestee in a paddy wagon on the way to a hospital was not entitled to conduct depositions of police officers who conducted an investigation of the incident or to request discovery of documents produced by the police department in the course of its investigation. "Law enforcement investigatory privilege" protected this material from discovery, and "deliberative process privilege" also protected the documents generated in the course of the investigation. Additionally, the trial court held that a stay of discovery, for a limited time, was a reasonable way to protect the defendant officers, accused of excessive force, in terms of their Fifth Amendment rights against self-incrimination, should they be criminally indicted as a result of a pending investigation by the U.S. Department of Justice. Jones v. City of Indianapolis, 216 F.R.D. 440 (S.D. Ind. 2003).

Public Protection: Motoring Public and Pedestrians

     State troopers were not liable for death of motorist struck by out of control vehicle as she took field sobriety test at the side of the highway. Estate of George v. Michigan, 63 Fed. Appx. 208 (6th Cir. 2003), upholding Estate of George v. Michigan, 136 F. Supp. 2d 695 (E.D. Mich. 2001), previously reported in the September 2001 Liability Reporter.

Pursuits: Law Enforcement

     Proper legal standard for establishing liability of police officers engaged in a high-speed chase which injures third parties is "willful and wanton misconduct" under Illinois law, not ordinary negligence, rejecting argument by plaintiff motorists injured in collision with pursued vehicle in question certified for decision by the trial court. Lanning v. Harris, No. 3-02-0637, 796 N.E.2d 667 (Ill. App. 3d Dist. 2003).

Search and Seizure: Home/Business

     Warrants for the search of a residence were not supported by probable cause when the affidavit provided no basis to support the belief that evidence of crime would be found there and broadly sought "every conceivable kind of document" relating to the residents' personal and business financial activities. Affidavit submitted was used to obtain warrants for a total of 16 locations, with only the particular location or person to be searched altered in the last section. Officers were not entitled to qualified immunity for conducting search, as no reasonable officer would have believed that the affidavit provided probable cause. Officers who were not involved in the search, however, but were present, were entitled to qualified immunity in detaining a resident during the execution of the warrant, since they could have reasonably believed that their actions were lawful. Williams v. County of Santa Barbara, 272 F. Supp. 2d 995 (C.D.Cal. 2003).

     •Return to the Contents menu.

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

     Community Corrections: Article: "Community Corrections and Community Policing," by David Leitenberger, Pete Semenyna, and Jeffrey B. Spelman, 72 FBI Law Enforcement Bulletin No. 11, pgs. 20-23. [PDF] "A partnership between corrections and police officers can greatly enhance community supervision efforts."

     Mental Illness: "Police Practice: Moving Past What to How -- the Next Step in Responding to Individuals with Mental Illness," by Douglas Gentz, Ph.D. and William S. Goree, 72 FBI Law Enforcement Bulletin No. 11, pgs. 14-18. [PDF].

     Privacy: "Compendium of State Security and Privacy Legislation: Overview 2002." References and classifies State legislation on privacy and security of State criminal history record information. Statutes are grouped into 29 categories and presented both by classification and by State. The introduction summarizes changes and key issues that have arisen during the preceding three years. This report, the twelfth in a series, is compiled for Bureau of Justice Statistics by SEARCH, the National Consortium for Justice Information and Statistics.11/03 NCJ 200030 Acrobat file (335K) | ASCII file (40K)

     Publication: "Fighting Urban Crime: The Evolution of Federal-Local Collaboration" National Institute of Justice, 19 pages, December 2003. "Although rare before the mid-1980s, Federal-local law enforcement collaboration has grown rapidly as local police and prosecutors have worked closely with Federal authorities to address increased levels of drug trafficking and violent crime. This Research in Brief examines the rise of Federal-local collaboration, the various types of collaborations such as task forces and grant-funded programs, and the advantages collaboration offers both local and Federal authorities. Despite some observers' concerns about the 'federalization of crime,' most partnerships have been characterized by restraint, careful coordination, and shared operational leadership. Researchers found that collaboration has become institutionalized in many U.S. cities and is likely to expand in the future." PDF file. ASCII text file.

     Racial Profiling: "Studying Racial Profiling in North Carolina," by Matthew T. Zingraff, William R. Smith, and Donald Tomaskovic-Devey, National Institute of Justice (NIJ) Journal, Issue No. 250 (November 2003). [PDF]. (For an archive of back issues of the NIJ Journal, click here).

     Risk Management: "Innovations in Police Accountability: An Exploratory Study of Risk Management and Police Legal Advising," by Carol A. Archbold, Ph.D., Social and Cultural Sciences, Marquette Univ. (2002). [PDF]

     Statistics: "Hate Crime Statistics 2002" FBI Annual Report. Presents data regarding incidents, offenses, victims, and offenders in reported crimes that were motivated in whole or in part by a bias against the victim's perceived race, religion, ethnicity, sexual orientation, or disability. November 12, 2003, 148 pgs. [PDF]

     Statistics: "Law Enforcement Officers Killed and Assaulted 2002." The FBI annually compiles data concerning the felonious and accidental line-of-duty deaths and assaults of law enforcement officers and presents these statistics in Law Enforcement Officers Killed and Assaulted (LEOKA). Tabular presentations include weapons used, use of body armor, and circumstances surrounding murders and assaults of officers. November 17, 2003, 112 pgs. [PDF]

     Statistics: "Violent Victimization of College Students." Bureau of Justice Statistics. Examines the incidents of college student victimization and compares the findings to persons of similar age in the general population. In addition, the report determines the extent to which student victimization occurs in campus and off-campus locations and settings, as well as the prevalence of alcohol and drugs in student victimizations. Highlights include the following: For both whites and blacks, students were victims of violence overall at rates lower than those of non-students. Among women, except for rape/sexual assault for which there were no statistical differences, college students experienced crimes of violence at lower rates than those of nonstudents. Firearms were present in 9% of all violent crimes, 7% of assaults, and 30% of robberies against college students. 12/03 NCJ 196143 Press release | Acrobat file (335K) | ASCII file (40K) Spreadsheets (zip format 63K)

     Reference:

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

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