CONTENTS

Federal appeals court finds that trial judge, in granting qualified immunity to deputy on dentist's claim that he was arrested without probable cause, and wrongfully subjected to handcuffing so tight that the injuries required him to leave his profession, improperly acted "as a jury" in choosing to believe deputy's version of the incident rather than the plaintiff's. Court also finds that it is "well-established" law that overly tight handcuffing can constitute excessive force.

     A dentist became involved in a dispute with a car wash/oil change business which insisted on having his home address and phone number, which he did not wish to disclose, after work had begun on his car. The business owner summoned deputy sheriffs, who told the dentist twice to leave, which he refused to do without his car, telling the deputies in an "agitated" voice that the business owner had assaulted him in the office.

     He claimed that one of the deputies then suddenly "physically attacked" him from behind, despite his compliance then with the order to leave. The deputy allegedly grabbed him by his right wrist, bending and twisting his arm, causing pain, and forcing him "face first down" into a car, smashing his face, chest and glasses, and handcuffing his hands "extremely tight" behind his back.

     The deputy then allegedly picked him up by his handcuffed arms and threw him "upside down" and head first into the patrol car. The deputy allegedly declined, despite several requests to loosen the cuffs on the way to the station, to do so. While the dentist was initially charged with interfering with a business by refusing to leave and resisting an officer, these charges were dropped. The arrestee allegedly suffered an injury to his right medial nerve as a result of the incident, forcing him to give up the profession of dentistry.

     The dentist sued the deputy and the county for violation of his civil rights, and the trial court granted summary judgment on the basis of qualified immunity for the deputy.

     A federal appeals court found that the trial judge wrongfully relied solely on the facts as recited by the deputy, who claimed that the plaintiff had interfered with the ability of the business to function by swearing, and that others present feared for their safety, and that the dentist refused to leave the business and refused to obey the deputy's orders. He had also claimed that he could not recall being asked to loosen the handcuffs and that the dentist had never told him that they were too tight.

     In doing so, the appeals court noted, the trial court basically "became a jury."

     If the dentist's version of the incident were believed, however, he was arrested without probable cause, and the arrest "was accomplished by violence" in violation of the Fourth Amendment. Additionally, if the dentist were believed, a reasonable officer would have known that an arrest was unlawful under circumstances where the dentist was obeying an order to leave by beginning to walk away, and where any alleged "intimidation or obstruction" of the business did not take place in the officer's presence.

     Further, if the officer acted as the dentist claimed, he used excessive force under clearly established law.

"The Fourth Amendment's requirement that a seizure be reasonable prohibits more than the unnecessary strike of a nightstick, sting of a bullet, and thud of a boot." It is well-established that overly tight handcuffing can constitute excessive force.

     The appeals court reinstated the plaintiff's lawsuit, finding that qualified immunity was wrongfully granted.

     Wall v. County of Orange, #02-56032, 364 F.3d 1107 (9th Cir. 2004). [PDF]

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Law enforcement officers who are accused, in lawsuit, of purposefully eliciting false testimony to frame three men for murder, and then participating in a cover-up to protect themselves and the real killers, one of whom was being "groomed" as an informer, were not entitled to qualified immunity. Such behavior, if true, violated clearly established law, even as long ago as 1967.

     Two separate lawsuits, consolidated in the trial court, grew out of the 1965 murder of a man and the 1968 convictions of three individuals for that killing. Despite the jury's verdict and the subsequent rejection of their direct appeals, the three men "steadfastly maintained their innocence," and sought during all this time to clear their names. "The facts, as now revealed, seemingly support their claims of innocence," a federal appeals court commented, and the two lawsuits--brought by the sole surviving arrestee and the estates of the other two--sought damages against law enforcement personnel allegedly responsible for their wrongful convictions.

     They claimed that a former FBI agent and a now retired Boston police detective framed the three men, assisted the state of Massachusetts in wrongfully convicted them on a charge of first-degree murder, participated in a "cover-up," and allowed the three men to "languish in prison for years." The two defendants are accused of violating the three men's constitutional rights by developing a witness for the prosecution in spite of their knowledge that he would present perjured evidence ad falsely implicate three innocent men in the murder. They allegedly suppressed exculpatory evidence "in an effort both to cover up their own malefactions and to shield the actual murderers (one of whom was being groomed as an FBI informant)."

     The three men were originally sentenced to death, that sentence was vacated by the U.S. Supreme Court in Limone v. Massachusetts, 408 U.S. 936 (1972), and eventually all the sentences were reduced to life imprisonment. The surviving man had his conviction overturned in 2001.

     The trial court declined to dismiss the complaints on the basis of qualified immunity, as sought by the defendants, and also "rebuffed" their attempt to discuss the suits brought on behalf of the two decedent's estates on the basis that they had failed to satisfy the "favorable termination" of criminal charges or setting aside of their sentence requirement before suing for damages, as laid down by the U.S. Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994).

      Upholding this result, a federal appeals court agreed that it was inconceivable that, even in 1967 (and previously), a reasonable law enforcement officer would have thought it permissible to frame somebody for a crime he did not commit. The law against such conduct was clearly established at the time. Accordingly, the defendants were not entitled to qualified immunity.

This is easy pickings. [...] some truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. Actions taken in contravention of this prohibition necessarily violate due process (indeed, we are unsure what due process entails if not protection against deliberate framing under color of official sanction).

      As to the two men who died in prison before they could have their convictions overturned, the trial court had also rejected the defense that the lack of favorable termination precluded their estates from pursuing their claims for damages under Heck. The trial court reasoned that either these two plaintiffs could "ride piggyback" on the vacation of the third man's conviction to satisfy the favorable termination requirement under a theory of "constructive reversal," or in the alternative, that any failure to secure favorable termination was excused by allegations of "government wrongdoing that effectively denied access to post-conviction remedies."

     The appeals court found that the trial court's ruling on this was not a final judgment subject to immediate appeal, that that the immediate appealability of an order rejecting a qualified immunity defense which turns on a purely legal issue does not confer jurisdiction on the appeals court to consider other issues in the case, such as the Heck issue. It therefore did not rule on that issue.

     Limone v. Condon, No. 03-2130, 2004 U.S. App. Lexis 11577 (1st Cir.).

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Arrest and conviction for failing to identify himself by name while detained by an officer, in violation of a Nevada state statute requiring persons stopped to provide such identification, did not violate arrestee's Fourth or Fifth Amendment.

      A man was arrested and convicted in Nevada because he refused to identify himself to an officer during an investigative stop involving a reported assault. The arrest and prosecution took place under a Nevada "stop and identify" statute which requires that a person who an officer detains under suspicious circumstances identify himself.

      The U.S. Supreme Court, in a 5-4 decision, upheld the constitutionality of the arrest and conviction, rejecting claims that the identification requirement violated either the Fourth or Fifth Amendment. While the decision occurred in the context of a criminal case, the reasoning would also apply for purposes of a civil lawsuit.

      The majority distinguished prior cases invalidating "traditional vagrancy laws" for vagueness because of their "broad scope and imprecise terms," or Fourth Amendment violations such as Papachristou v. Jacksonville, 405 U. S. 156, Brown v. Texas, 443 U. S. 47, and Kolender v. Lawson, 461 U. S. 352. Unlike the laws in those cases, which arguably imposed standardless identification requirements, in this case, the initial stop of the arrestee, the majority noted, was based on reasonable suspicion, satisfying the Fourth Amendment requirement of reasonableness.

     Additionally, the statute at issue is "narrower and more precise" than the one struck down in Kolender, which required the presenting of "credible and reliable" identification. The Nevada statute has been interpreted as requiring only that the suspect disclose his name, not requiring that he even produce a driver's license or other document. Onec he communicates his name to the officer, the statute is satisfied, and he cannot be arrested for violating it.

      An officer conducting an investigatory stop is ordinarily free to ask a person for identification without violating the Fourth Amendment or to otherwise identify himself. The Court's majority, answering a previously "open question," now stated its opinion that a State may constitutionally require a suspect to disclose his name in the course of an investigatory stop made under the principles in Terry v. Ohio, 392 U. S. 1 (1968)

     The challenged Nevada statute, the Court's majority found, "properly balances" the "intrusion on the individual's interests against the promotion of legitimate government interests." The request for a suspect's identity has an "immediate relation" to the purpose, rationale, and practical demands of an investigatory stop, and the threat of a criminal sanction for non-compliance "helps ensure that the request does not become a legal nullity." On the other hand, the statute does not have the effect of altering the nature of the stop, its duration, or its location.

     The Court's majority also rejected the argument that the conviction violated the Fifth Amendment's prohibition on self-incrimination, reasoning that the disclosure of the arrestee's name and identity did not present a "reasonable danger" of incrimination. The Fifth Amendment, it noted, only prohibits "compelled testimony" that is incriminating, such as disclosures that a witness reasonably believes could be used in a criminal prosecution or could lead to other incriminating evidence.

     In this case, the arrestee's refusal to disclose his name was not based, the Court found, on any articulated real and "appreciable fear" that his name could be used to incriminate him or lead to other evidence for his prosecution, but merely because he believed that his name was none of the officer's business. The Fifth Amendment, the Court found, did not override the judgment of the Nevada legislature to the contrary that an officer should be entitled to determine the identity of a person stopped on the basis of reasonable suspicion, and in the absence of a reasonable belief that his answer would tend to incriminate him.

      The mere fact of an individual's name, the majority believed, would be incriminating only in "unusual circumstances." If a future case arises in which is there is a substantial claim that furnishing identity at the time of an investigatory stop would have given law enforcement "a link in the chain of evidence" needed to convict the person of a separate crime, the majority said, the Court can then consider if the Fifth Amendment privilege applies, whether it has been violated, and what the remedy for such a violation would be. Under the circumstances of the immediate case, "those questions need not be resolved."

     The majority opinion was written by Justice Kennedy, with Chief Justice Rehnquist, and Justices O'Connor, Scalia, and Thomas joining in the opinion. Justice Breyer wrote a dissenting opinion, joined by Justices Souter and Ginsburg, and Justice Stevens filed a dissenting opinion.

     Hiibel v. Sixth Judicial Dist. Court of Nevada, #03-5554, 2004 U.S. Lexis 4385.

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     Editor's Note: It should be clearly understood that the Court majority's opinion does not independently provide any basis for arresting a suspect during an investigatory stop for refusing to identify himself or herself, in the absence of an applicable statute so providing.

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Probable cause existed to arrest two 14-year-old boys days after Columbine High School shootings for allegedly threatening to bomb their own school or bring guns to shoot to kill other students. Students were properly removed from school and detained in juvenile facility for the weekend on the basis of other students' accounts of their statements, and an admission by one of the two boys that the other had been making "joking" references to Columbine.

     Fourteen students and one teacher were killed on April 20, 1999 during a shooting spree by two students at Columbine High School in Littleton, Colorado. Three days later, three students at Cambridge Junior High School in Cambridge, Ohio reported to the Vice-Principal of the school that two male 14-year-old 8th grade students planned to commit violent acts there. Both of them had prior criminal records and were on juvenile probation.

     After school officials interviewed the three students and took written statements from them, as well as interviewing the only one of the two suspected boys at school that day, and after consulting with probation officers, "emergency removal" proceedings were initiated against both boys.

     This resulted in juvenile parole officers taking both of the boys into custody at a juvenile detention facility for the weekend. After the weekend, a juvenile court judge placed them both on house arrest and they did not return to school for a number of days. A juvenile prosecutor ultimately filed no charges against one of the boys, but charged the second with "aggravated menacing," which he was subsequently acquitted of.

     The boys and their parents sued both law enforcement officers and school officials for alleged violations of civil rights. They claimed, among other things, that the arrests were made without probable cause. The trial court rejected this claim, and a federal appeals court has upheld this result.

     Evidence in the case showed that one of the boys had reacted to TV coverage of the Columbine shootings by asking, "what she would do" if the two boys did "something like that." The other boy allegedly told a classmate on the phone that he was planning on bringing a gun to school or bombing the school, and implied that she would be one of the "first to go." This classmate wrote a note to another student reporting this, and during lunch at school, two students asked one of the two boys if the note was true, and he allegedly said that it was.

     It was after this that the alleged threats were reported to school officials. One of the two boys acknowledged that the other had been "joking around" about the incident at Columbine, but denied the rest of the accusations. He was escorted from the school and handcuffed, and then taken to the county probation department by a probation officer.

     Several police officers went to the other boy's house, and informed his mother that he had been implicated in a 'bomb threat," and his mother brought him to the probation department after talking on the phone with a probation officer. Both boys were then held in custody for the weekend.

     The appeals court found that there was probable cause for the arrests. The question was not whether the boys actually made the alleged threats but whether, on the basis of the information received and the investigation conducted, there was a reasonable basis for believing that they had made them.

In the aftermath of Columbine, the corroborated statements of three girls whom Vice-Principal Howell deemed trustworthy permissibly cemented the probation officers' probable cause determination-regardless of whether the concern was a shooting/bomb threat or criminal menacing and regardless of whether the suspect himself denied making those threats. At a minimum, the acknowledged statements established probable cause of aggravated menacing, particularly in the environment of that sobering week.

     Williams v. Cambridge Board of Education, #02-3200/3207, 2004 U.S. App. Lexis 10951 (6th Cir.)

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Postal inspector was authorized under Maine law to swear out a complaint and obtain a warrant for the arrest of a local postmaster for allegedly indecently exposing himself to a 15-year-old girl. Even though he allegedly had no authority to make the arrest for a state law misdemeanor, the arrest was proper when he was accompanied by a deputy sheriff in executing the warrant.

     The postmaster of Solon, Maine was arrested for indecent exposure by a local deputy sheriff and a postal inspector who had sworn out the arrest warrant. The arrestee subsequently filed a civil rights lawsuit against the deputy, the county sheriff, the postal inspector and the U.S. Postal Service. He claimed violation of his Fourth Amendment rights, as well as state law claims for unlawful arrest and false imprisonment under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680.

     A federal appeals court has upheld summary judgment for the defendants.

     The arrest warrant was based on the postal inspector's investigation of a complaint that the postmaster had exposed himself to a 15-year-old girl who resided in the town while she was riding her bicycle near the post office. The postmaster allegedly called her name, and she turn around and recognized him from their past acquaintanceship. He was allegedly standing with his pants down to his knees and both of his hands holding his exposed penis.

     The girl allegedly told the inspector that the postmaster had been making inappropriate sexual comments and gestures to her during her visits to the post office for several years. The girl's mother also stated that the postmaster had made inappropriate comments to her and other women, and other female customers subsequently also told the inspector that the postmaster had touched them or made inappropriate comments at work at the post office.

     The postal inspector swore out an affidavit concerning his interview with the girl, and also stated that she had passed a polygraph examination. The court clerk issued a criminal complaint against the postmaster for violating a state indecent conduct statute and a corresponding arrest warrant.

     The postal inspector and a deputy sheriff made the arrest at the postmaster's home, utilizing the warrant. He was subsequently tried and acquitted. The girl, in her sworn statement had stated that she had viewed the postmaster's genitals during the incident. During cross-examination, however, she said that she had not been able to see his penis because of the placement of his hands around it. The trial judge found that this testimony failed to satisfy the requirements of a state statute prohibiting a person from knowingly exposing his or her genitals.

     Summary judgment was entered for the defendants on the postmaster's subsequent lawsuit. On appeal, he claimed that the postal inspector had no legal authority to make an arrest for a state law misdemeanor, so his arrest of the postmaster was an unreasonable seizure in violation of the Fourth Amendment. The appeals court did not resolve this issue, because it concluded that the postal inspector was "authorized [under Maine law, which it interpreted as including postal inspectors as law enforcement officers] to swear out the criminal complaint and receive the complaint and warrant for Santoni's arrest, and that the warrant was executed under the lawful authority" of the deputy.

     The appeals court also upheld summary judgment for the Postal Service on the plaintiffs Federal Tort Claims Act (FTCA) claims. While certain intentional misconduct is exempted from the FTCA's waiver of sovereign immunity, the statute allows claims against the United States for "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" arising out of "acts or omissions of investigative or law enforcement officers of the United States Government."

     In this case, however, the postmaster was arrested based on valid state law. The postal inspector's participation in the arrest "did not render it unlawful under state law or the Fourth Amendment."" Accordingly, there was no basis for finding liability for false arrest, false imprisonment, assault, or battery, so that summary judgment in favor of the defendants on the FTCA claims against the U.S. Postal Service was properly granted.

     Santoni v. Potter, No. 03-1914, 2004 U.S. App. Lexis 10456 (1st Cir.).

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Federal appeals court rules that demonstrator who painted a "peace" symbol on a U.S. flag for display during demonstrations against the war against Iraq was not entitled to an injunction against being prosecuted under state flag desecration law as a violation of her First Amendment rights in the absence of a showing of a real danger that she would be prosecuted under the statute.

     A federal appeals court has upheld the dismissal of a lawsuit to enjoin, as a violation of federal civil rights, any prosecution of a 17-year-old high school student under Indiana's flag-desecration statute. The law provides that "a person who knowingly or intentionally mutilates, defaces, burns, or tramples any United States flag, standard, or ensign commits flag desecration, a Class A misdemeanor," Ind. Code § 35-45-1-4(a), for which the maximum punishment is a year in prison and a $ 5,000 fine. § 35-50-3-2.

     The plaintiff had participated in several demonstrations against the war in Iraq and in one of them had displayed a U.S. flag she owned on which she had painted a "peace" symbol. The town's police chief, who was present at that demonstration stated that the altered flag was "contraband," and that it was illegal to paint a peace symbol on a U.S. flag. He did not, however, arrest her or any of the demonstrators and did not threaten to do so. After he stated his opinion, he withdrew from the scene. After a subsequent similar demonstration, a county board member was reported, in a local newspaper, to have called for the arrest of the student demonstrators, but once again no arrests were made, and no threat of arrest occurred.

     The county prosecutor allegedly told both the police chief and county sheriff not to investigate whether the students had violated the flag desecration statute. That prosecutor, strangely enough, was the only defendant named in the plaintiff's lawsuit, seeking to enjoin any prosecution under the statute as a violation of the First Amendment.

     Far from having given any indication he wanted to enforce the flag-desecration statute, the court noted, the prosecutor actively took steps to see that no investigation of purported violations of the statute took place.

The reason for his forbearance was that the U.S. Supreme Court has held that the First Amendment forbids punishing people who desecrate the American flag (although it does not forbid punishing the theft of an American flag by someone who means to burn or otherwise deface it or the burning of it in circumstances that would create a safety hazard) in order to make a political statement -- which is an exact description of [the plaintiff's] actual and intended conduct. United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287, 110 S. Ct. 2404 (1990); Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989); Spence v. Washington, 418 U.S. 405, 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974) (per curiam).

     The appeals court noted that Article III of the Constitution bars a federal court from enjoining threatened action that the plaintiff has no reason to suppose "even remotely likely ever to materialize; there must be a real dispute in the sense that its resolution is likely to have tangible consequences for the plaintiff."

     The appeals court acknowledged that it was possible that an elected prosecutor could institute a prosecution that violated the Constitution and the Supreme Court's caselaw, either because he was ignorant of the relevant constitutional law, or, "more likely, might see an opportunity to reap political gains from prosecuting people whose conduct though lawful had outraged the community." But in this case, the plaintiff had no reason to believe, when she filed her lawsuit, that the county prosecutor would do this.

     Further, the court mentioned, if he did, she would have an adequate remedy in raising a First Amendment defense to the prosecution.

     The appeals court rejected the argument that the mere existence of the flag-desecration statute established the threat of prosecution which was sufficiently great to allow her to sue.

The statute books are littered with provisions that if read literally and without regard to their interpretive history would prohibit innocuous or even privileged conduct. Do state legislatures have a duty to conform their statute books to authoritative judicial interpretations? After Johnson and Eichman, should every state have been obliged, on pain of seeing its prosecutors enjoined, to rewrite its flag-desecration statute to create an express privilege for the conduct held privileged in those cases? There is no such obligation, yet a claim that there is is implicit in this lawsuit.

     The appeals court found that there was no real danger that the defendant prosecutor would prosecute the plaintiff "for painting a peace symbol on an American flag that she owns." Additionally, the Indiana statute is not unconstitutional in all of its possible applications, and the plaintiff could presumably be prosecuted for violating the statute if she painted a peace symbol on her neighbor's flag without his consent, the court commented, or, "conceivably, if she tramples on it not to make a political statement but to keep her feet from getting wet."

     Further, the issuance of an injunction in the absence of a real threat of unconstitutional action "would place humiliating and potentially paralyzing restrictions on law enforcement." Placing the prosecutor in this case under an injunction "could be justified only on the basis of profound and, so far as appears, unwarranted distrust of the probity and professionalism of local prosecutors."

     Lawson v. Hill, #03-3433, 368 F.3d 955 (7th Cir. 2004).

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When the Florida highway patrol assured a man who reported stalled vehicle on an expressway that an officer would be dispatched to the scene, it assumed no duty to motorists who subsequently died when they collided with the stalled vehicle after no officer was sent.

     Two occupants of a car in Florida were instantly killed at 4 a.m. when their vehicle collided into the back of an unlit tractor-trailer which had stalled in the right-hand lane of an expressway. Approximately an hour earlier, the driver of that stalled vehicle left it on the expressway, approximately 1,000 feet away from a crescent in the highway.

     Another motorist almost collided with the stalled vehicle, which had no markers, lights, or flares, and was in an area where the street lighting was out. This motorist phoned 911 and his call was transferred to the Florida Highway Patrol, whose dispatcher stated that he would "send a unit to check it out." The motorist returned to the scene and waited for approximately twenty to twenty-five minutes, going home when no officer arrived in that time. Thirty minutes later, the fatal accident occurred which killed a driver and their passenger.

     The dispatcher had evidently failed to enter the call into the computer for assignment, so no officer was dispatched to the scene, in violation of internal operating rules requiring the dispatch of a trooper to the scene of stalled vehicles.

     The trial court entered judgments for the estates of both decedents, based on jury awards. The Florida Supreme Court has upheld an intermediate appeals court's action of entering judgment for the Florida Highway Patrol because it owed no special duty to the decedents, and was entitled to sovereign immunity.

     The Florida Supreme Court agreed that the Florida Highway Patrol does not have a duty to remove stalled or abandoned vehicles from the state's highways.

     The court also found that the Florida Highway Patrol's internal operating procedures and policies did not impose any duty to dispatch officers to the scene of the stalled tractor-trailer.

While a written policy or manual may be instructive in determining whether the alleged tortfeasor acted negligently in fulfilling an independently established duty of care, it does not itself establish such a legal duty vis-a-vis individual members of the public.

     Further, any assurance of assistance made by the dispatcher to the motorist who reported the problem was not a promise of assistance to the vehicle occupants who subsequently died. There was no communication with them, and they therefore were not entitled to special protection from the Florida Highway Patrol.

     The court emphasized that it "in no way" condoned the Florida Highway Patrol's "failure to take prompt action when it was alerted to the potential danger caused by the stalled tractor-trailer." Under established principles of state law, however, "having not responded to the scene to become directly involved in the roadway circumstances, FHP had no legally recognized particular tort duty which would generate or impose governmental tort liability with regard to responding to the scene, the issuance of warnings of the potential danger, or provision for the removal of the tractor-trailer under the circumstances presented in this case."

     Pollock v. Fla. Dept. of Highway Patrol, No. SC99-8, SC99-41, 2004 Fla. Lexis 902 (Fla. 2004)

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Police officer whose vehicle collided with another motorist after allegedly running a red light while responding to a domestic disturbance call was not entitled to summary judgment from liability on the basis of qualified immunity in claim for damages. Officer's action, if as described by plaintiff, could constitute deliberate indifference to the possibility of harm coming to other drivers and their passengers. Two to one majority of appeals court panel finds that "deliberate indifference" rather than "intent to harm" was sufficient to impose liability under the circumstances, if officer had time to deliberate between alternatives.

     A motorist was killed when two deputy sheriffs, who had decided to respond to a domestic disturbance call even after they had been told other officers were covering the call, allegedly drove through a red light and collided with the car driven by the motorist.

     At the time, the deputies' vehicle was allegedly traveling at 60-64 miles per hour, with the speed limit 65, and the road "wet and slushy."

     The driving deputy had received training that when a vehicle operating in an emergency-response mode goes through a red light, it must first slow almost to a stop when entering the intersection, continue to observe opposing traffic, and then proceed through the intersection at no more than 10-20 miles per hour. A department investigation concluded that the deputy did not use good judgment in carrying out his duties and had not properly weighed the consequences of his actions, and he received a 30-day suspension.

     The deceased motorist's estate and family claimed that these actions violated his right to substantive due process under the Fourteenth Amendment and alleging that the deputies' actions in this case "were conscience-shocking, and reckless, callous, outrageous and deliberately indifferent" to his rights.

     The trial court denied a motion by the deputies for summary judgment on the basis of qualified immunity, finding that there were factual issues concerning whether the deputies had time to deliberate and whether the situation was reasonably regarded as an emergency, precluding summary judgment. A federal appeals court found that the actions of one of the two deputies could be regarded as "deliberately indifferent" to the risk of harm to others, while the second deputy (who allegedly just "rode along" with the driver) was entitled to summary judgment.

     A violation of the Fourteenth Amendment right to substantive due process may be shown by conduct that "shocks the conscience," the appeals court noted. In cases where actual deliberation by an officer is practical, conduct that is deliberately indifferent may shock the conscience. The court rejected the argument that there could be no liability in this context in the absence of an intent to harm on the part of the deputies.

We hold the facts of this case, viewed in the light most favorable to the Plaintiffs, present a situation where the deputies were "afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action."

     At the time of the dispatcher's transmission, the deputies were at a police substation eating dinner and doing paperwork. One minute after they responded to the call, and before the deputies were prepared to leave, another deputy said he would assist and told the defendants that they could cancel, which was repeated by the dispatcher, but the deputies decided to proceed. Before they even reached their patrol vehicle, they knew that at least two other deputies were already en route.

In our view, these facts support a conclusion that the deputies had time to deliberate whether it was necessary to rush towards the scene at speeds reaching 95 miles per hour, going through a red light on a winter night in a full-size pickup truck that [one of the deputies] was driving for the first time. The facts present a situation where actual deliberation was practical.

     The court found that, in light of the other deputies responding to the call, "any emergency was voluntarily created by" one of the deputies himself. There was "no necessity" as far as this deputy was concerned to respond in the manner that he did. His response therefore, the court found, should be evaluated under the deliberate indifference standard, rather than an "intent-to-harm" standard.

     As to the second deputy, who was a probationary officer at the time of the crash and was "merely riding along," the court found that there were no facts showing that he had any authority to overrule the first deputy's decision to respond to the call or to order him to stop at the red light as they approached the interface. He therefore could not be said to have acted with deliberate indifference to the rights of the decedent.

     The appeals court found that the first deputy, who, if the facts were as alleged, could be found to have acted with deliberate indifference, was on notice that he could be held liable for such conduct in responding to a disturbance call, since the law on the subject was clearly established as of December 29, 2000, the date of the collision, following County of Sacramento v. Lewis, 523 U.S. 833, 836, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998), so he was not entitled to qualified immunity.

     A 2-1 majority of the appeals court panel upheld the denial of qualified immunity for that first deputy, while finding that the second deputy, the probationary officer, should have the claims against him dismissed.

     A strong dissent by one member of the panel quoted Lewis, arguing that the Supreme Court held that, "in a high-speed automobile chase aimed at apprehending a suspected offender . . . . only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a [substantive] due process violation." It interpreted "intent-to-harm" as required for liability in the circumstances of the case in order for there to be liability, rejecting the argument that "deliberate indifference" sufficed. The dissenter also expressed the opinion that the first deputy in this case was entitled to summary judgment even under the deliberate indifference standard.

     Terrell v. Larson, #03-1293 2004 U.S. App. Lexis 11417 (8th Cir.).

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Business owner who obtained suppression of evidence in federal criminal proceeding on the basis of alleged omissions of material facts from affidavit for search warrant was not entitled, in subsequent civil rights lawsuit in state court, to judicial notice of factual findings made in federal judge's order, or to collateral estoppel as to their truth, since the defendants in the subsequent lawsuit were not parties to the federal proceeding, and therefore had no opportunity to dispute those facts.

     A couple operating a towing business sued the state of California and a California Highway Patrol (CHP) officer, claiming that the officer wrongfully omitted material facts from an affidavit used to obtain a search warrant for their business. During the search, firearms that one of the owners was not permitted to possess because of an earlier felony conviction were found, which led to his prosecution, which was later dismissed after the evidence obtained in the search was suppressed.

     In their lawsuit in state court, the Plaintiffs claimed, on appeal, that the trial court erroneously declined to take "judicial notice" of the federal court's suppression of the evidence from the search, and in granting summary judgment on their claims.

     An intermediate California appeals court upheld summary judgment for the defendants.

     The CHP officer received a complaint that an impounded truck had allegedly been sold by the towing business without the owner's prior approval or knowledge. The officer conducted an investigation, and prepared a search warrant affidavit for the business.

     The affidavit allegedly failed to mention that an individual who had allegedly purchased the truck in question had recanted his earlier statement about what he paid for the truck, or that he and one of the business owners had filed citizen complaints against the officer. A number of other disputed facts about the condition of the truck were also allegedly not mentioned in the affidavit, which did cause the search warrant to be issued. The CHP officer did not participate in the search, but acted as the evidence officer for the materials retrieved during the search.

     The California appeals court agreed with the plaintiffs that it would have been proper for the trial court to take judicial notice of the federal trial court's suppression order "at least to prove the truth of the fact" that such an order was issued, but disagreed with the plaintiffs' attempt to use that order as "evidence of the facts found and recited" by the federal judge in the order, which facts led him to conclude that the search violated the Fourth Amendment.

     The appeals court found that "collateral estoppel" mandating that the facts in the federal court order be taken as true, and therefore should be used to deny summary judgment to the defendants was not appropriate in this case. The issue in the prior federal criminal proceeding, whether the evidence should be suppressed because of deliberate and material omissions in the affidavit for the warrant, the court found, was not identical to the immediate issue, which was whether the CHP officer was entitled to qualified immunity because his conduct was objectively reasonable.

     Additionally neither the CHP officer nor the State of California were parties to the federal court proceeding, which was brought on behalf of the U.S. government. Accordingly, collateral estoppel did not apply, as they did not have a "full and fair opportunity" to contest the facts found by the federal judge.

     Kilroy v. State of California, No. C044877, 2004 Cal. App. Lexis 839 (Cal. 3d App. Dist 2004).

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

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Police officers who allegedly continued to search apartment even after they had verified that the parties sought were not there were not entitled to qualified immunity, as their claimed actions, if true, would violate the Fourth Amendment.

      Two women in Utah sued the county sheriff's department and a number of its officers, claiming a violation of their Fourth Amendment rights during the execution of a search warrant on their apartment. A federal appeals court has upheld the trial court's denial of the defendant officers' motion for summary judgment on the basis of qualified immunity.

     The plaintiffs' version of the facts are that the officers obtained a search warrant for an apartment based on allegations relating entirely to two men who resided there until early March of 1999. Unknown to the officers, on April 4, 1999, the plaintiffs leased the apartment, and began moving in on the following day.

     While they were moving in, the officers allegedly "charged into the residence with guns drawn" and demanded that everyone present get on the floor. During the search, four occupants were identified, none of whom were the two suspects. Additionally, there was a moving van in front of the apartment, and the plaintiffs had unloaded only a few boxes into the otherwise empty apartment.

     The officers were allegedly furnished with the information that the plaintiffs had signed the lease as of April 4th, and were moving in. Despite this, the plaintiffs claimed, the officers continued to detain them and search the residence.

     Given the validity of the warrant, the appeals court noted, the officers permissibly entered the apartment. But the purpose of the search was to examine the residence, the belongings, and the persons of the two suspects. Because they no longer lived there, searching the apartment, the court commented, "did not fulfill the purpose of the warrant."

     While the officers were entitled to some latitude for honest mistakes, the search would have become clearly unconstitutional if it continued after they realized, or reasonably should have realized that the people named in the warrant as the occupants of the apartments no longer resided there.

     The law in this area, the appeals court found, was "well-established at the time of the search in question." Accordingly, taking the plaintiffs' version of the facts as true for purposes of appeal, the defendant officers were not entitled to qualified immunity.

     Peterson v. Jensen, No. 02-4243, 2004 U.S. App. Lexis 11242 (10th Cir.).

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

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U.S. Supreme Court grants review on case involving the scope of permissible detention and questioning of persons, not suspected of crime, found inside a residence during the execution of a search warrant.

     The U.S. Supreme Court has granted review in a case involving alleged excessive detention of persons found in a residence during the execution of a search warrant, and unjustified questioning of one of those detainees about her immigration status solely on the basis of her ethnic appearance and unrelated to the purpose of the search.

     In the case, a woman who found herself detained by SWAT team members at gunpoint when she awoke was awarded $60,000 against two officers involved in the search of her family home, pursuant to a warrant. She was allegedly detained in handcuffs and questioned for almost three hours in a garage where she was taken barefoot in the rain during the search of the residence.

     Because she appeared to be of Hispanic or Latino ethnic origin, she was also questioned about her immigration status or citizenship and her purse was inspected for immigration documents, despite this having nothing to do with the purpose of the search authorized by the search warrant. Indeed, the detainee was not suspected of any crime, and the search warrant concerned other residents of the home, including suspected gang members, one of who was a suspect in a shooting.

     The appeals court found that the officers exceeded their authority to detain occupants of the residence for a limited time during the authorized search, and that the questioning on immigration status was improper. The appeals court also found that the officers were not entitled to qualified immunity.

     In granting review, the U.S. Supreme Court determined that it would address the following questions:

(1) In light of this Court's repeated holdings that mere police questioning does not constitute seizure, did Ninth Circuit err in ruling that law enforcement officers who have lawfully detained individual pursuant to valid search warrant engage in additional, unconstitutional "seizure" if they ask that person questions about criminal activity without probable cause to believe that person is or has engaged in such activity?

(2) In light of this court's ruling in Michigan v. Summers, 452 U.S. 692 (1981), that valid search warrant carries with it implicit authority to detain occupants while search is conducted, did Ninth Circuit err in ruling that two- to three-hour detention of occupant of suspected gang safe-house while officers searched for concealed weapons and other evidence of gang-related drive-by shooting was unconstitutional because occupant was initially detained at gun-point and handcuffed for duration of search?

     The case will be argued during the term of the Supreme Court scheduled to begin this fall in October and an article in a future issue of this publication will discuss the Court's decision.

     Mena v. Simi Valley, Calif., 332 F.3d 1255 (9th Cir. 2003), cert. granted, Muehler v. Mena, No. 03-1423, 2004 U.S. Lexis 4190 (June 14, 2004).

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

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County sheriff could be held vicariously liable for on-duty sexual assault by deputy if the complainant shows that he was aided in committing the attack by his position as a law enforcement officer.

     A Vermont deputy sheriff made routine visits to a convenience store where a 20-year-old female worked, as part of his "community policing function." She subsequently claimed that, on one night time visit, he pulled her head in different directions by grabbing her pony tail, showed her a picture of a women performing fellatio in an adult magazine found in the store. He then allegedly coerced her into performing oral sex on him on the premises. He was later convicted of neglect of duty and lewd and lascivious behavior.

     The victim of the assault sued the sheriff and sheriff's department, and claimed that they should be held vicariously liable for the deputy's misconduct.

     The trial court rejected this claim, focusing on the fact that the sexual assault would be "outside the scope" of the deputy's employment, and not carried out for the benefit of his employer in any way, which ordinarily bars vicarious liability.

     The Vermont Supreme Court agreed that there could be no vicarious liability under these circumstances on the basis of "scope of employment." But it held that vicarious liability could still be imposed under principles stated in the Restatement (Second) of Agency Section 219(2)(d).

     Under that section, an employer can be liable for misconduct of an employee even though he acts outside the scope of his employment when "the servant [employee] purported to act or to speak on behalf of the principal [employer] and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."

     The court found the "apparent authority" aspect of this inapplicable, since there was no indication that the deputy communicated or his victim somehow relied on any indication that the deputy had authority from the sheriff's department to perform acts of sexual misconduct or assault on duty. The court declined to adopt a rule of liability based on the notion that somehow "all law enforcement officers have the apparent authority" to carry out sexual misconduct simply because they have uniforms, guns and badges.

     The court found a factual issue, however, on the question of whether the deputy was aided by his job in carrying out his alleged sexual assault.

     When "the law enforcement officer is the wrongdoer," the court stated, "the citizen is also stripped of the official protection that society provides," and they are "particularly vulnerable and defenseless." A law enforcement officer has "unique access to a citizen who is depending upon the law enforcement officer for protection," and the interaction in this case between the deputy and his victim occurred because he was "acting as plaintiff's protector and his visible presence would discourage those who might want to rob the convenience store."

     In this case, the court reasoned, the deputy may have been able to corner his victim when she was alone in the store because of knowledge of her work schedule, and it may have been easier to obtain that information as a law enforcement officer. The presence of his police vehicle outside with the lights on may also have intimidated others from entering, and there were factual issues as to whether the victim was intimidated by his gun and uniform.

     A strong dissent by two Justices, including the chief Justice of the Vermont Supreme Court, cautioned that the application of the rule adopted by the court's majority could result in "vicarious liability that knows no borders."

     Doe v. Forrest, Vt., #2002-184, 2004 VT 37, 2004 Vt. Lexis 103 (2004).

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

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Assault and Battery: Handcuffs & Restraints

     Deputy sheriff acted in good faith entitling him to official immunity under Texas state law on claims for injury asserted by mental patient he restrained and handcuffed for purposes of transport to mental health facility. Hidalgo County v. Gonzalez, No. 13-03-00131-CV, 128 S.W.3d 788 (Tex. App. --Corpus Christi--2004).

Attorneys' Fees: For Plaintiff

     Trial court properly reduced, by 20%, attorneys' fees to be awarded to plaintiff arrestee who prevailed against one officer on false arrest and abuse of process claims and was awarded $50,000 in compensatory and $8,508 in punitive damages. Reduction was justified by the fact that no evidence supported other claims which the plaintiff voluntarily withdrew one week prior to trial, and that the jury returned a verdict against the plaintiff on claims for malicious prosecution and battery. Green v. Torres, No. 02-7658, 361 F. 3d 96 (2nd Cir. 2004).

Defenses: Collateral Estoppel

     Motorist's stipulation, in criminal proceeding, that there had been probable cause to arrest her for felony assault with a deadly weapon, a car, in a "road rage" incident, barred her pursuit of lawsuit for unlawful arrest. The stipulation either had a collateral estoppel effect, totaling barring the claim, or else, at the very least, was admissible in the case as an admission by the plaintiff, which could serve as a basis for summary judgment. Additionally, her continued pursuit of her civil lawsuit after signing the stipulation was sufficient to enter a finding that the lawsuit was maintained in bad faith, resulting in an award of attorneys' fees and costs to defendants. Salazar v. Upland Police Department, Nos. E032557, E033447, 11 Cal. Rptr. 2d 22 (Cal. App. 4th Dist. 2004). [PDF]

Defenses: Notice of Claim

     Summary judgment was properly entered for defendant city in wrongful death lawsuit brought under Washington state law concerning death of motorist which occurred during high-speed police chase when administrator of decedent's estate failed to comply with a statutory requirement that they personally sign the notice of claim against a municipality. Reyes v. City of Renton, No. 50154-2-1, 88 P.3d 155 (Wash. App. Division 1 2004).

Defenses: Qualified Immunity

     Deputy sheriffs were entitled to qualified immunity for examining ex-husband's personal property as he was packing to leave the home after they served him with a temporary order of protection obtained by his ex-wife. They acted objectively reasonably in seeking to make sure that he was not concealing a weapon or some other "instrumentality" that could have presented a danger to persons present. Rosen v. County of Suffolk, N.Y., 305 F. Supp. 2d 239 (E.D.N.Y. 2004).

Domestic Violence

     Police officer's conduct in allegedly refusing to provide a man protection against his ex-girlfriend, a fellow police officer, following purported threats of physical violence, was "reprehensible" enough to support an award of punitive damages, but court finds $200,000 jury award of punitive damages excessive, ordering it reduced to $25,000, while upholding $2,000 award of compensatory damages. Plaintiff would be granted a new trial limited solely to the issue of punitive damages if he rejected the reduction. Stack v. Jaffee, 306 F. Supp. 2d 137 (D. Conn. 2003).

     Police officers who took away a woman's gun while investigating a domestic dispute, but later returned it to her when they thought things were "under control" were not liable to boyfriend she allegedly shot with the weapon a month later. Court rejects the argument that the return of the weapon "created" the danger that he would be shot. The shooting was too remote in time to have been caused by the officers' actions, and their conduct placed him in "no worse" a position than he would have been in had they not gotten involved to begin with. Green v. City of Philadelphia, No. 03-2368, 92 Fed. Appx. 873 (3rd Cir. 2004). [PDF]

     Police officers did not violate the rights of a male homosexual co-habitant of a city councilman by requiring him to leave the residence under threat of arrest, following the councilman's 911 domestic violence call, despite the fact that he claimed to own the house and claimed that the officers also had probable cause to arrest the councilman. The councilman had a bloody lip at the time, and the co-habitant appeared to be in the process of packing up his possessions to move out. Since the officers needed to separate the two men, it was logical for them to ask the co-habitant to leave. Court also finds that the mere fact that the officers "laughed and made silly faces" when told that the two men were ending a relationship did not show that they engaged in discrimination on the basis of sexual orientation. Lunini v. Grayer, 305 F. Supp. 2d 893 (C.D. Ill. 2004).

False Arrest/Imprisonment: No Warrant

     Police officer had probable cause to arrest pedestrian after he refused to accept and sign a jaywalking citation the officer attempted to give him. Robinson v. City of Miami, No. 3D02-2560, 867 So. 2d 451 (Fla. App. 3d Dist. 2004). [PDF]

     Sheriffs' deputies had probable cause to arrest couple for "remaining in a place for the purposes of prostitution, lewdness, or assignation" based on their conduct at an adults-only "swingers club." Subsequent dismissal of the charges did not alter the result, and sheriff's proposed interpretation of the statute, i.e., that a law enforcement officer present may be the "sole person offended to establish the offensiveness element required to prove lewdness," was at least arguable under current Florida law. Mailly v. Jenne, No. 4D03-2195, 867 So. 2d 1250 (Fla. App. 4th Dist. 2004). [PDF]

     Police officer could reasonably believe he had probable cause to arrest a man for child abuse based on telephone call from a woman who described the suspect as striking a child across the head with his hand, and then grabbing her by the back of her overalls and slinger her into a van. The fact that the information came over the telephone initially, rather than in person, did not make the information inherently unreliable when the woman identified herself during the call, gave her address, and stated that she worked for the local public schools. Mitchell v. City of Tulsa, No. 02-5044, 90 Fed. Appx. 273 (10th Cir. 2003).

     Officers had probable cause to arrest plaintiff for trespass and obstructing governmental administration when he failed to obey an order to leave a store parking lot in which a fight occurred, but instead again approached the officer and store patrons involved in the fight, seeking to obtain information about how to contact them. Berger v. Schmitt, #03-7898, 91 Fed. Appx. 189 (2nd Cir. 2004).

False Arrest/Imprisonment: Warrant

     Police officer who arrested suspect on the basis of a warrant for breach of the peace issued by a judge was entitled to qualified immunity. Issuance of warrant supported a presumption that the arrest was supported by probable cause, and there was no showing that the officer in any way misled the judge in order to obtain the warrant. Abramowitz v. Romano, 303 F. Supp. 2d 79 (D. Conn. 2004).

False Arrest/Imprisonment: Unlawful Detention

     Police officers who responded to a radio call for back-up during a traffic stop were entitled to qualified immunity in motorist and passengers' lawsuit challenging the reasonableness of the detention and its length, as they did not personally participate in the stop and detention and were entitled to rely on statements made by the officer who had observed the vehicle and the alleged grounds for the stop. Lewis v. City of Topeka, Kansas, 305 F. Supp. 2d 1209 (D. Kan. 2004).

Federal Tort Claims Act

     Woman's claim that she was raped by a military recruiter on U.S. government premises did not entitle her to pursue liability claims against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b)(1) and 2680(h). Claims for alleged negligent hiring and supervision of alleged assailant were barred because they arose from alleged intentional misconduct, coming within an "intentional tort" exclusion from the FTCA's waiver of governmental immunity. Verran v. United States, 305 F. Supp. 2d 765 (E.D. Mich. 2004).

Firearms Related: Intentional Use

     Officers' actions in approaching a "distraught" woman armed with a handgun with their own weapons drawn and issuing commands to her did not render them liable for her subsequent death when she began pointing her weapon at one of them and she was shot and killed. Court rejects the argument that their conduct unreasonably "provoked" a confrontation which resulted in the death. Neuburger v. Thompson, 303 F. Supp. 2d 521 (W.D. Pa. 2004).

First Amendment

     New York state harassment statute, when applied to the mailing of written materials on religious and political issues found "annoying" by a candidate for Lieutenant Governor to whom they were sent, was violative of the First Amendment. Court enjoins enforcement of statute against arrestee with respect to his further mailing of First Amendment protected materials. Factual issues as to whether police detectives violated clearly established rights, however, prevented summary judgment on the issue of qualified immunity from liability. Vives v. City of New York, 305 F. Supp. 2d 289 (S.D.N.Y. 2003).

Governmental Liability

     City could not be held liable on the basis of alleged conspiracy by individual police officers to violate his civil rights in connection with his arrest on homicide charges, in the absence of any evidence of a city policy that caused the alleged violations. Additionally, officer had probable cause to arrest plaintiff based on eyewitness's identification of him as the killer both from a photograph and in a lineup, particularly in light of inconsistencies in suspect's explanation of his whereabouts on the date of the crime. Brown v. City of New York, 306 F. Supp. 2d 473 (S.D.N.Y. 2004).

Interrogation

     Even if murder confessions officers obtained from juvenile suspects were coerced, they could not be held liable under federal civil rights law for violation of the Fifth Amendment privilege against self-incrimination when the statements obtained were not used against the suspects in a criminal trial, but only in grand jury proceedings leading to their indictment and in a hearing to determine whether they should be tried as adults. Crowe v. County of San Diego, 303 F. Supp. 2d 1050 (S.D. Cal. 2004).

Negligence: Vehicle Related

     Deputy sheriff was not entitled to summary judgment on personal injury claim brought by passenger of car struck by her vehicle when she was responding to an emergency call regarding an officer needing assistance. Factual disputes about the speed at which she was proceeding and the amount of traffic at the time, as well as other conditions prevented a finding that the deputy necessarily was acting in good faith in responding to the emergency call. Harris County v. Smyly, No. 14-03-00322-CV, 130 S.W.3d 330 (Tex. App. -Houston- 14th Dist. 2004).

Police Plaintiff: Firefighters' Rule

     Firefighters' rule prevented officer from obtaining damages from building owner for a wrist injury he suffered while attempting to access the building to arrest a drug suspect. There was no evidence that the owner had negligently allowed criminal activity to take place in the building. Kivlehan v. 2220 Adams Place Realty Corp., 774 N.Y.S.2d 626 (Sup., Bronx County, 2003).

     Animal control officer who slipped and fell on building owner's property when responding to a call to remove a stray cat could pursue a personal injury claim against the property owner. Rhode Island Supreme Court holds that "public safety officer's rule," which in other cases bars law enforcement officers from recovering damages on the basis of negligence for personal injuries arising out of the foreseeable risks of their duties, does not apply to animal control officers, who are "relatively undercompensated" when compared with police officers and firefighters. DeLaire v. Kaskel, No. 2002-477-Appeal, 842 A.2d 1052 (R.I. 2004). [PDF]

Search and Seizure: Home/Business

     Fourth Amendment does not required that police officers have any reasonable suspicion of criminal activity before knocking on a residence door to conduct an inquiry, so that use of "knock and talk" procedure, which resulted in the obtaining of incriminating evidence, did not violate arrestee's rights. People v. Jenkins, #G032626, 2004 Cal. App. Lexis 887 (Cal. 4th App. Dist.. 2004). [PDF]

     Officers' warrantless search of home was legitimate on the basis of permission to enter given to them by persons in the home. It was also justified by exigent circumstances because they observed a potentially dangerous fugitive approach the residence in a "furtive manner," and then enter. Couden v. Duffey, 305 F. Supp. 2d 379 (D. Del. 2004).

Sexual Assault

     Alabama sheriff had Eleventh Amendment immunity from federal civil rights lawsuit over alleged rape of burglary victim by deputy sheriff dispatched to assist her, as he acted, under state law, on behalf of the state, not the county. Sheriff also had absolute immunity from state law official capacity claims and discretionary function immunity from individual capacity claims for negligent hiring, supervision, or training of the deputy, under state law. McClure v. Houston County, Alabama, 306 F. Supp. 2d 1160 (M.D. Ala. 2003).

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

    Article: "Conducting Surveillance Operations: How to Get the Most Out of Them," by John T. Nason, 73 FBI Law Enforcement Bulletin No. 5, pgs. 1-7 (May 2004). [PDF]. Also available in .html format. Special Agent Nason is the head of the FBI's Special Operations Group, Aviation and Surveillance Operations Section, Critical Incident Response Group.

     Article: "Hiding in Plain Sight A Peek into the Witness Security Program" By Douglas A. Kash, J.D., Senior Attorney, DEA, Arlington, Virginia, 73 FBI Law Enforcement Bulletin No. 5, pgs. 25-32 (May 2004). [PDF]. Also available in .html format.

    Crime Victims: Critical Response Vol. 4: Services to Hispanic Victims, New Products and Services. Critical Response, a newsletter created to assist law enforcement agencies in meeting the needs of crime victims, is a product of a grant funded by the Office for Victims of Crime, Office of Justice Programs, US Dept. of Justice. [PDF]

     Management Resources: "Budgeting in Smaller Police Agencies," by Chief W. Dwayne Orrick, Cordele, Georgia Police Department, in Big Ideas for Smaller Police Departments (Winter 2004), a quarterly publication of the International Association of Chief’s of Police (IACP). [PDF]

     Terrorism and Homeland Security:

     A Better-Prepared America: A Year in Review (May 2004). The Department of Homeland Security issued a review of the past year's progress, citing areas such as grants, training, interoperability, and community involvement.

     "Patterns of Global Terrorism" Report 2003, U.S. State Department (April 2004). (A 7.4 megabyte .pdf file). Individual sections may be downloaded in .pdf format here. Individual sections of the report may be access in .html format here. NOTE:  Corrected Year in Review, Appendix A, and Appendix G were posted on June 22, 2004. (Numbers in the overall report text, specifically numbers of killed and wounded, will subsequently be revised to reflect the corrected Appendices. Until that occurs, reference should be made to these supplemental files). Also, a new fact sheet Chronology of Non-Significant International Terrorist Incidents, 2003 was released on June 22, 2004. (An International Terrorist Incident is judged non-significant if it does not result in a loss of life or serious injury to persons, major property damage (more than $10,000), and/or is not an act or attempted act that could reasonably be expected to create the conditions noted).

     "Responding to Incidents of National Character". The Federal Emergency Management Agency has issued recommendations for fire and emergency services based on the events of 11 September 2001 and other incidents (May 26, 2004). Press release  Full report. [PDF]

     9/11 COMMISSION STAFF STATEMENT (May 18, 2004) Statement released by the National Commission on Terrorist Attacks in the U.S. at a hearing in New York, discussing "communication difficulties" among N.Y.C. police, fire department, and other emergency rescue personnel on September 11, 2001 at the World Trade Center following the terrorist attack. [PDF].

     General Accounting Office (GAO) Report on Airport Perimeters and Access Control [PDF] and The Transportation Security Administration (TSA) response to issues raised in the report.

     Report : "We the People: Homeland Security from the Citizens' Perspective," [PDF], by the Council for Excellence in Government, contains almost fifty recommendations for improving homeland security and citizen involvement. An article in Government Executive discusses the report.

     Reference:

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

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