CONTENTS

Federal appeals court finds that plaintiff who was awarded $87,000 in damages for alleged battery by two police officers at veterans' hospital was improperly also awarded $49,000 in attorneys' fees. While evidence showed, for purposes of award under Federal Tort Claims Act, that officers acted "wantonly," the U.S. government did not act "wantonly" in presenting a defense against the plaintiff's claims.

     An Illinois man brought a lawsuit against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671-2680, alleging battery by two police officers employed by the Department of Veterans Affairs at a VA hospital. The FTCA incorporates state law and imposes liability on the federal government based on the application of that law. In this case, applying Illinois state law, which requires, in a lawsuit for battery against police officers, that the plaintiff prove that the officers acted "willfully and wantonly," the trial court judge found that the plaintiff had proven his case and awarded $87,000 in damages, as well as later awarding $49,000 in attorneys' fees.

     The government appealed only the award of attorneys' fees, arguing that the trial judge had used the wrong legal standard in making the award. The trial judge had ruled that for the government to be liable for payment of the attorneys' fees in the case, it would have to be shown to have acted "wantonly" in resisting (defending against) the lawsuit, which he defined as "causelessly, without restraint, and in reckless disregard of the rights of others."

     The Equal Access to Justice Act, 28 U.S.C. Sec. 2412(b), the appeals court noted, makes the United States liable for attorneys' fees "to the same extent that any other party would be liable under the common law." Under common law, however, the general rule is that each party to a lawsuit pays their own attorneys' fees unless "the losing party 'has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." The U.S. government, therefore, argued that the trial judge's awarding of attorneys' fees on a mere showing of "wanton" conduct was improper, and that something closer to "deliberate misconduct" was required.

     The appeals court found, however, that when it looked carefully at the trial judge's definition of "wantonly," the key term was "reckless disregard," and "one is reminded that recklessness is frequently in the law a near synonym for intentionality."

     Whichever standard was used, however, the appeals court found that it was "not close to being satisfied" in this case.

A defendant normally has a right to defend, rather than having to keel over just because a suit has been filed against him. There are utterly frivolous defenses, as we know from tax-protester cases, but the defense in this case was not frivolous. Nor was it improperly motivated.

     In this case, the officers ordered the plaintiff out of his car, patted him down, and handcuffed him because of a suspicious, although ultimately innocent bulge in his pocket. During the encounter, his shoulder was seriously injured. He claimed that one of the officers had pushed his face against the car, grabbed his arm, and twisted his arm and shoulder, but the officers stated that in the process of handcuffing him one of them had applied an arm lock to him because he was resisting.

     Unknown to the officers, the plaintiff, who was 72-years-old, had a damaged rotator cuff in his shoulder which was vulnerable to being injured by an application of even slight force. The trial judge found that an officer punched the plaintiff in the shoulder, telling him that it would "be sore" for days. As there was "no excuse for his doing that," the battery was "wanton" under Illinois law, the appeals court found.

     This did not mean, however, that the government was "wanton" in defending against the battery claim. Based on the pre-existing condition of the plaintiff's shoulder, the severity of his injury was "not inconsistent" with what the officers claimed happened. Accordingly, if the judge had believed the officers, he would not have found them to have acted wantonly.

The fact that a witness's testimony is rejected does not brand as frivolous the claim or defense of the party who called him. And these officers were witnesses, not defendants; the government is the defendant. [...] The lawyers who defended the government didn't know that the officers were lying.

So the decision to defend the suit rather than throw in the towel was not frivolous and the claim for an award of attorneys' fees should therefore not have gotten even to first base.

     Under these circumstances, the appeals court found that the award of any amount of attorneys' fees was unreasonable.

     Stive v. U.S., No. 03-2151, 2004 U.S. App. Lexis 8346 (7th Cir.).

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California county sheriff acted on behalf of the state not the county, California Supreme Court rules, and therefore was entitled to absolute Eleventh Amendment immunity from liability on federal civil rights claims for damages. Plaintiffs could still pursue, however, their claims for unreasonable search and seizure under California state statute without a showing of any "intent to discriminate."

     Members of a task force on auto theft run by a California County Sheriff's Department stopped a vehicle in which they saw the brother of a suspect believed to be involved in an auto theft ring. The man argued with the officers and they handcuffed him and detained his wife, who was driving the vehicle. They questioned the man about his car, which had no license plates or vehicle identification number, and he told them that he had just bought the car and that it was a salvaged vehicle. The officers impounded the car to determine whether it was stolen.

     The officers accompanied the wife home to pick up the brother's identification, but once there, they had her sign a waiver form granting "full and unconditional authority" to the officers to enter and conduct a search for identification and "any related investigation in any related criminal or non-criminal law enforcement matter." After searching the entire house, they found papers indicating that the brother was on felony probation, and arrested him for a misdemeanor vehicle code violation and for probation violation. They detained the driver for two hours, but asserted no charges. The car was determined to be "probably not stolen," so the man was released from custody, but only after three days. No charges against him were pursued.

     The driver and passenger sued the sheriff's department, sheriff, and deputies both for violation of federal civil rights and for unreasonable search and seizure under California Civil Code section 52.1, subdivision (b).

     The California Supreme Court ruled that a county sheriff acts on behalf of the state, not the county, when conducting a criminal investigation, including detaining suspects and searching their home and vehicle. Therefore:

(1) Under the Eleventh Amendment to the United States Constitution, and the doctrine of sovereign immunity, the state is absolutely immune from tort liability under the federal Civil Rights Act (42 U.S.C. § 1983). (2) Accordingly, as agents of the state when acting in their law enforcement roles, California sheriffs are likewise absolutely immune from prosecution for asserted violations of that section.

     This immunity, the court found, did not apply, however, to sheriff's deputies, since they do not act as state agents with final policymaking authority over the complained-of actions. The court ordered further proceedings as to whether the deputies were entitled to qualified immunity on the federal civil rights claims because reasonable officers in their position would have believed that their actions were lawful under clearly established law.

      Finally, the California Supreme Court found that the plaintiffs could pursue a claim against the county, its sheriff's department and the sheriff for unreasonable search and seizure under Civil Code section 52.1. It rejected the defendants' argument that this statute "applies only to so-called hate crimes and requires a showing, not alleged here, that the defendants acted with 'discriminatory animus,' i.e., an intent to threaten or coerce another in violation of their constitutional rights, based on the victim's actual or apparent racial, ethnic, religious, or sexual orientation or other minority status." The court found that nothing in the statute required any showing of "actual intent to discriminate." Rather, it authorizes a lawsuit against any person who through threats, intimidation or coercion interferes with the exercise or enjoyment of the constitutional or statutory rights of "any individual."

     Venegas v. County of Los Angeles, #S113301, 32 Cal. 4th 820; 87 P.3d 1 (Cal. 2004).

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While the statute of limitations for an arrestee's false arrest Fourth Amendment claim would normally start running from the date of the arrest, a federal appeals court rules that if plaintiff was arrested and prosecuted solely on the basis of narcotics "planted" by the arresting officers, the statute would not start to run until the charges were dismissed.

     An arrestee claimed that a Chicago police officer, for several years, had been framing innocent persons and arresting them on false charges. He claimed that the officer's "routine" in each case was the same: he and his partner approached a suspected drug dealer, and if a search failed to reveal any incriminating evidence, they simply planted drugs on him and claimed that he was engaged in illegal activity.

     In a federal civil rights lawsuit, the plaintiff claimed that he was a victim of one of these "frame-ups" in January of 2000 when he was arrested and prosecuted for narcotics, although the charge was eventually dismissed in July of 2002. One month later, he filed he lawsuit against the officer and the city for "wrongful prosecution," claiming that the officer fabricated evidence in order to arrest him, and then misrepresented his guilt to prosecutors.

     The trial court dismissed the lawsuit, and held that any Fourth Amendment cause of action against the officer began to accrue at the time of the arrest, so that it was time-barred under an Illinois two-year statute of limitations, since the complaint was filed more than two years after the arrest.

      A federal appeals court has reinstated the lawsuit and ruled that, while the statute of limitations on a Fourth Amendment claim for unreasonable search and seizure or false arrest would normally start to run at the time of the arrest, in this case, if the plaintiff was arrested and prosecuted solely on the basis of "planted" evidence, the statute of limitations would not begin to run until the charges against him were dismissed, so that the dismissal on statute of limitations grounds was improper, accepting, for purposes of argument, the truth of the plaintiff's claims.

      The appeals court noted that Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994) bars any suit for damages premised on a violation of civil rights if the basis for the suit is inconsistent with or would undermine the constitutionality of a conviction or sentence. This rule, the court found, "applies not only to convicted persons but also to "persons like the plaintiff "who as yet only face prosecution."

      Despite Heck, the appeals court had previously "often held" that civil rights claims of false or wrongful arrest arising out of the Fourth Amendment begin to accrue at the time of arrest regardless of subsequent proceedings. "The rationale behind this approach is that a wrongful arrest claim does not necessarily undermine a conviction; 'one can have a successful wrongful arrest claim and still have a perfectly valid conviction.'"

Therefore, generally speaking, claims for wrongful arrest may be brought immediately because "the injury of being detained illegally is compensable regardless of whether the plaintiff is later convicted or even prosecuted." But this general approach must not be understood as a rule to be applied in every case.

     In this case, the appeals court reasoned, if, as alleged, the plaintiff had been arrested and prosecuted solely on the basis of drugs planted by the arresting officers, "then any attack on the arrest would necessarily challenge the legality of a prosecution premised on the planted drugs," and any lawsuit against the officer for false arrest "would necessarily imply the invalidity of a potential conviction," so that Heck requires the Fourth Amendment claim would not begin to accrue until the charges were dismissed.

     Wiley v. City of Chicago, #03-1490, 361 F.3d 994, rehearing denied, 2004 U.S. App. Lexis 7456 (7th Cir. 2004).

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U.S. Supreme Court rules that states may be sued for damages under the Americans with Disabilities Act (ADA) for acts of disability discrimination which allegedly interfere with the constitutional right of access to the courts, and that such claims are not barred by Eleventh Amendment immunity. Court does not provide a clear answer about whether similar lawsuits against governmental employees for damages are proper in other circumstances of alleged disability discrimination in the providing of public services or programs.

     The plaintiffs, who are paraplegics, filed a lawsuit seeking money damages and injunctive relief under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, which prohibits disability discrimination against qualified individuals being excluded from "participation or denied the benefits of the services, programs or activities" of a public entity. They asserted that the unavailability of handicap access to certain Tennessee court facilities violated the ADA.

     One of the plaintiffs claimed that he had to crawl up two flights of stairs to get to a courtroom in which he had to appear. The building did not have an elevator. When he later returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom; he consequently was arrested and jailed for failure to appear. The other plaintiff, a certified court reporter, alleged that she has not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in the judicial process.

     The U.S. Supreme Court subsequently held in Board of Trustees of Univ. of Ala. v. Garrett, #99-1240, 531 U. S. 356 (2001), that the Eleventh Amendment bars private money damages actions for state violations of ADA Title I, which prohibits employment discrimination against the disabled. In the immediate case, however, a panel of the U.S. Court of Appeals for the Sixth Circuit rejected the application of the same rule to the plaintiffs' claims, stated that due process protects the right of access to the courts, and that the evidence before Congress when it enacted Title II established that physical barriers in courthouses and courtrooms have had the effect of denying disabled people the opportunity for such access.

     The U.S. Supreme Court, in a divided 5-4 decision, upheld this result and found that, as applied to cases "implicating the fundamental right of access to the courts," Title II of the ADA was a valid exercise of Congress' authority under §5 of the Fourteenth Amendment.

     Congress, the 5 Justice majority found, enacted Title II of the ADA against a backdrop of "pervasive unequal treatment of persons with disabilities in the administration of state services and programs," including systematic deprivations of fundamental rights, such as access to the courts.

      A Civil Rights Commission report before Congress showed that some 76% of public services and programs housed in state-owned buildings were inaccessible to and unusable by such persons. Title II was therefore an "appropriate response" to this "history and pattern" of unequal treatment. Justice Stevens wrote the majority opinion, in which Justices O'Connor, Souter, Ginsburg, and Breyer joined, with separate concurrences written by Justices Souter and Ginsburg.

     Justices Rehnquist, Kennedy, Thomas, and Scalia dissented.

     The Court's opinion does not appear, at this time, to furnish any guidance as to whether a majority of the Justices would reach the same result in disability discrimination cases involving the providing of governmental services and programs which do not relate to the fundamental constitutional right of access to the courts.

     Tennessee v. Lane, #02-1667, 2004 U.S. Lexis 3386.

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Inoperable tag light on truck gave officer a basis for a traffic stop, and subsequent "belligerent and confrontational" behavior by motorist provided probable cause for a custodial arrest. Officer's use of Taser gun to accomplish the arrest was not excessive force under the circumstances.

     A Georgia deputy sheriff observed a truck on a highway and stopped it after allegedly observing a tag light which was not appropriately illuminated at night. After the truck pulled over, the deputy approached the passenger side of the truck cab on foot, and shined his flashlight at the truck cab. The driver claimed that he was blinded by the flashlight the second time, and that he rolled down the passenger window and "politely asked" the deputy to stop shining the flashlight at him. The deputy then allegedly said something like "god dammit, you don't worry about what I'm doing over here," and responded to a similar request not to shine the flashlight again by replying, "I told you to get your fucking ass over here two times." The driver then allegedly told the deputy to get his "god darn flashlight" out of his eyes.

      The deputy claimed that he only "quickly blinked" the flashlight twice in an attempt to let the driver know where he was standing, and for the driver to be able to meet him where he stood, and that the driver reacted belligerently.

      The deputy unholstered his Taser gun which he kept in his hand through the remainder of the encounter, and the motorist got out of the truck and walked to the back. As captured by a video camera, the driver immediately began shouting and complaining about the deputy shining the flashlight in his face. The deputy "calmly asked" for the driver's license, but the driver continued to complain about the prior use of the flashlight, and insisted that he had done "nothing wrong." The motorist was allegedly "belligerent, gestured animatedly, continuously paced, appeared very excited, and spoke loudly."

     The deputy repeatedly asked the driver to stop yelling and also asked to see his log book, bill of lading, driver's license, and insurance. The driver accused the deputy of harassing him. While the driver produced his license, he allegedly failed to respond to other requests for the other items, and told the officer "How 'bout you just go ahead and take me to fucking jail, then, man, you know, because I'm not going to kiss your damn ass because you're a police officer."

    The motorist allegedly failed to retrieve the documents after a fourth and fifth response, and the driver continued to yell. The officer then discharged his Taser gun at the driver's chest, and instructed a back-up officer who had just arrived to handcuff the driver.

     The driver filed a federal civil rights lawsuit against the officer, claiming that he improperly stopped him, falsely arrested him, and used excessive force against him. A federal trial court granted summary judgment to the defendant on the federal claims, remanding remaining state law claims to state court.

     Upholding this result, a federal appeals court ruled that the deputy had probable cause to stop the driver for the tag light violation.

     The appeals court also found that the driver's actions gave the officer probable cause to arrest him for obstructing an officer in the performance of his duty. The "undisputed facts" showed that the deputy instructed the plaintiff "at least five times" to retrieve certain relevant documents, and each time he failed to comply. Instead of complying, he yelled and acted "belligerently and confrontationally," thereby hindering the deputy in completing the traffic stop, and providing "ample probable cause" for an arrest.

      Finally, the appeals court found that the use of the Taser gun to accomplish the arrest was "reasonably proportionate to the difficult, tense and uncertain situation" that the deputy faced, and was not excessive. Because the driver had repeatedly refused to comply with the deputy's verbal commands, "starting with a verbal arrest command" was not required.

More importantly, a verbal arrest command accompanied by attempted physical handcuffing, in these particular factual circumstances, may well have, or would likely have, escalated a tense and difficult situation into a serious physical struggle in which either [the driver] or [the deputy] would be seriously hurt. Thus, there was a reasonable need for some use of force in this arrest.

     While being struck by a Taser gun is an "unpleasant experience," the appeals court commented, the amount of force used, a single use of the Taser gun causing a one-time shocking, was "reasonably proportionate" to the need for force, and did not cause any serious injury. Indeed, it may have prevented a physical confrontation and injuries.

     Draper v. Reynolds, #03-14745, 2004 U.S. App. Lexis 9498 (11th Cir.).

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Deputy sheriffs had adequate probable cause to arrest bail bondsmen for burglary and assault based on their observations and two-hour investigation of incident in which they allegedly forced their way into woman's home and slapped her in the course of revoking her bond.

     Two licensed bondsmen sued a county and several sheriff's deputies, alleging that there had been a lack of probable cause to arrest them for assaulting a woman whose bond they were revoking. The trial court granted the defendants' motion for judgment as a matter of law.

     A federal appeals court has upheld this result, finding that probable cause for the arrests existed. A bailbonds company for whom the plaintiffs worked had entered into a bond contract with a woman to secure her future court appearance. Perceiving her to be a flight risk, the company decided to revoke her bond.

     The two bondsmen and a bounty hunter assisting them arrived at the woman's residence at 3:30 a.m. and knocked on her door, entering as she answered. They informed her that they had come to revoke her bond. According to one of the bondsmen, the woman then "became combative," and she was handcuffed, but then attempted to escape by running outside. A neighbor, awakened by the commotion, observed her being tackled and dragged back inside, and called the sheriff's department, following which deputies were dispatched to the home.

     The deputies encountered the bounty hunter on the sidewalk outside the residence and spoke to him. They heard a commotion coming from inside and went into the home. When they entered, they saw the two bondsmen standing over the woman, who was crying, handcuffed with her hands behind her back.

     She claimed that the three men had forced their way into her home and began to ask her questions about money she owed them, and further claimed that the two bondsmen had slapped her several times. They disputed this, and argued that they were only there to revoke her bond and that her restraint had been necessary because she had kicked one of them in the groin before the deputies arrived.

     The deputies conducted an investigation for approximately two hours, and stated that the woman's physical appearance supported her version of the story, observing "redness" around her face and neck. They ultimately arrested the two bondsmen for assault based on their observations and the woman's statement. Burglary charges were also subsequently asserted. All charges were later dropped against one of them, while the other pled guilty to misdemeanor trespass while maintaining his innocence (a so-called "Alford" plea--see North Carolina v. Alford, 400 U.S. 25 (1970)).

     A federal appeals court has upheld judgment as a matter of law for the defendants.

     The court rejected the argument by the plaintiffs that the fact that they were engaged in revoking the woman's bond, and that bond revocation is a "civil action" somehow prevented them from forming "criminal intent." The deputies made their arrest at the scene of the incident, and based it on the victim's statement, and their observation of the victim.

     While the bondsmen told the deputies that they entered the residence based on their bond contract, a reasonable officer could have seen their conduct as potentially criminal in nature, the court found. They heard a commotion coming from inside suggesting that an altercation was occurring, observed the two bondsmen crouching over the women, and her face and neck were red and swollen, consistent with her statement that she had been assaulted.

     The appeals court rejected the argument that the woman's statement was inherently unreliable or untrustworthy because she allegedly had a criminal history of writing bad checks and had allegedly attempted to flee her bondsmen. The appeals court concluded that a reasonably prudent officer would have sufficient grounds for the arrest.

     Anderson v. Cass County, Missouri, No. 03-2409, 2004 U.S. App. Lexis 8798 (8th Cir.).

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Denial of a parade permit to Ku Klux Klan based on a New York statute prohibiting the wearing of masks upheld by federal appeals court. Overturning trial court opinion, appeals court finds no First Amendment violation, ruling that the mask that the Klan sought to wear in public conveyed no message "independent" of their robes and hood, and that the statute did not discriminate on the basis of viewpoint.

     A federal appeals court has reversed a trial court decision finding a New York state statute barring the wearing of masks in public unconstitutional in violation of the First Amendment, and enjoining the enforcement of the statute to prevent the Ku Klux Klan from wearing masks in a parade. The Klan had been denied a parade permit on the basis of their announced intention of wearing masks. The trial court decision is Church of the American Knights of the KKK v. Kerik, 232 F. Supp. 2d 205 (S.D.N.Y., 2002), reported in Liability Reporter (April 2003).

     The trial court granted the Klan summary judgment in a lawsuit against the City of New York and its Police Commissioner, finding New York's anti-mask statute, New York Penal Law § 240.35(4), invalid under the First Amendment. The statute prohibits wearing masks in public with the exception of doing so in connection with a "masquerade party" or similar entertainment events. The trial court found that this improperly barred expressive conduct, discriminated against the Klan on the basis of their viewpoint, and that the statute had been selectively enforced, pointing to instances in which the statute had not been enforced against Iranian students protesting the Shah in 1977, protesters rallying after the funeral of Amadou Diallo (a New York man shot and killed by city police officers) in 1999, protesters opposing the rally held by the plaintiff itself in the immediate lawsuit on October 23, 1999 who wore rubber face masks satirizing Mayor Giuliani, and pro-Palestinian protesters who wore "kefiyahs" or head scarves on two occasions in 2000 when they gathered at Times Square and at the Israeli Consulate in New York City.

     The Klan conducted its demonstration as planned, wearing robes and hoods, but not wearing masks.

     In overturning the trial court's decision, the federal appeals court rejected the argument that the Klan's mask wearing was protected by the First Amendment right to anonymous speech. The appeals court found that the statute historically could be traced back to legislation enacted as long ago as 1845 to "thwart armed insurrections by Hudson Valley tenant farmers who used disguises to attack law enforcement officers." It was therefore "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers," and not to "suppress any particular viewpoint."

     While the First Amendment protects "symbolic or expressive conduct" as well as actual speech, the appeals court noted that the anti-mask statute did not bar the Klan from wearing a uniform expressive of their relationship to the Klan, but only barred masks.

The mask that the members of the American Knights seek to wear in public demonstrations does not convey a message independently of the robe and hood. That is, since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not. The expressive force of the mask is, therefore, redundant.

     The U.S. Supreme Court, the appeals court stated, has never held that freedom of association or the right to engage in anonymous speech "entails a right to conceal one's appearance in a public demonstration." The court declined the Klan's request to extend prior caselaw "to hold that the concealment of one's face while demonstrating is constitutionally protected."

Assuming for the discussion that New York's anti-mask law makes some members of the American Knights less willing to participate in rallies, we nonetheless reject the view that the First Amendment is implicated every time a law makes someone--including a member of a politically unpopular group--less willing to exercise his or her free speech rights. While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, since the individual's right to speech must always be balanced against the state's interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous.

     The appeals court declined to "second-guess" the legislature's judgment in creating an exception for the statute allowing the use of masks at entertainment events which do not pose the same security risks as mask wearing in other circumstances.

     The appeals court also agreed that the instances in which the anti-mask statute was not enforced against other demonstrators did not show "selective enforcement, because, in the situations cited, the demonstrators "did not provide advance warning to the police department of their intent to wear masks." In this case, the Klan applied to the Police Department for a permit, and specifically informed the police that they would be wearing masks in violation of the statute, resulting in the denial of the permit request. "The American Knights has not suggested, much less shown, that any other group was granted a permit in such circumstances. Plaintiffs have therefore failed to establish a case of either viewpoint discrimination or selective enforcement."

     Church of the American Knights of the Ku Klux Klan v. Kerik, #02-9418, 356 F.3d 197 (2nd Cir. 2004).

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County ordinance requiring permits for public demonstrations of five or more people violated the First Amendment by improperly targeting political expression. A provision in the ordinance requiring that groups indemnify the county in a manner "satisfactory" to the county attorney granted him "unconstitutional discretion" over permit decisions.

     Two organizations, the National Council of Women's Organizations, and the Rainbow/PUSH Coalition challenged a county ordinance requiring a permit for public demonstrations of political expression in a public forum in groups of five or more people. In addition to challenging the permit requirement, the lawsuit challenged a requirement in the ordinance that those applying for a permit submit an indemnification agreement "in a form satisfactory" to the county attorney.

     A federal appeals court found both aspects of the ordinance unconstitutional and violative of the First Amendment.

     The ordinance was adopted in anticipation of protests during the Masters Golf Tournament held annually at the Augusta National Golf Club, and prohibits any public demonstration or protest on any public property in the county without a permit issued by the sheriff. A protest or demonstration was defined as, "Any expression of support for, or protest of, any person, issue, political or other cause or action which is manifested by the physical presence of persons, or the display of signs, posters, banners, and the like." Violation of the ordinance was made a misdemeanor punishable by a $1,000 fine and/or 60 days imprisonment. The permit application, in addition to requiring information such as the name and address of the applicant and a description of the planned event, also requires an indemnification and hold-harmless agreement suitable to the county attorney.

     The federal appeals court found that because the ordinance requires groups of five or more people to obtain permission from the County Sheriff in order to carry out a protest or demonstration, it was a prior restraint which was "presumptively unconstitutional," and had to be subject to "strict scrutiny." The "strict scrutiny" that content-based speech regulations face require that the government use the "least restrictive means of advancing a compelling government interest." Such a prior restraint may, however, also be approved if it "qualifies as a regulation of the time, place, and manner of expression rather than a regulation of content." A content-neutral time, place, and manner regulation must leave open "alternative channels of communication and survive 'intermediate scrutiny,' the requirement that it not restrict substantially more speech than necessary to further a legitimate government interest." Additionally, such content-neutral time, place, and manner regulations must not "vest public officials with unbridled discretion over permitting decisions."

     The appeals court found that the ordinance was not "content neutral," as it targeted only "political" expression. The fact that it applied to all political speech regardless of viewpoint did not alter the result.

     Under the ordinance, many expressive activities which do not threaten "public safety, traffic, or the peace" are regulated, the court found, while numerous activities which are expressive and involve more than five people, and do threaten those harms are not regulated by the ordinance. The appeals court gave such examples as "a street party, a tail-gating party, a sidewalk performance by a five-person musical group, or even a high school band." The ordinance, by its terms would apparently restrict even a five-person political discussion or silent sit-in on the sidewalk's edge "even though such events are unlikely to threaten the County's feared harms."

     As a content based regulation, the appeals court found, the ordinance also failed to use the least restrictive means, such as targeting only offensive behavior or the manner of delivery of speech without regard to viewpoint or subject matter, or regulating only larger groups, to accomplish the county's legitimate traffic flow and peace-keeping concerns. The ordinance, therefore, was found unconstitutional, and violative of the First Amendment.

     Finally, the appeals court found that the requirement that permit applicants indemnify the county for damages arising from a planned protest or demonstration, in requiring that such indemnification be in a form satisfactory to the county attorney, provided "excessive discretion" to the county attorney, who can order the permit denied on that basis, and "chills speech." The ordinance provided no standards as to what form of indemnification would be approved and therefore left the acceptance or rejection of indemnification agreements to the attorney's "whim."

     Burk v. Augusta-Richmond County, No. 03-11756, 2004 U.S. App. Lexis 7261 (11th Cir.).

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Delaware Supreme Court rules that state statute prevents the state, as owner of a police emergency vehicle, from asserting sovereign immunity as a complete defense to a personal injury claim based on the alleged negligence of the vehicle's driver, but that any liability is limited, under state law, to the amount of liability insurance purchased.

     A family in Delaware sued the state and a state police officer for injuries arising from an auto accident, in which several people were injured and one passenger in their vehicle died. They claimed that the negligence or gross negligence of the officer caused the accident, and that the State and its agencies were liable as the officer's employer and as the owner of the police car the officer operated at the time of the accident, as well as claiming that state police negligently trained and supervised the officer. On the date of the accident, the state had available insurance that provided a maximum of $ 1,000,000 coverage per accident. A portion of the policy limit was used to settle the wrongful death claim by the passenger's family and the state offered the remaining insurance coverage to settle the remaining injury claims. The plaintiffs sought more than the remaining amount of the insurance.

     In an appeal to the Delaware Supreme Court, the issues were whether the state legislature, in passing the Emergency Vehicle Statute (EVS), 21 Del. C. § 4106, intended to waive the state's sovereign immunity from liability in the specific circumstances of the case, i.e., whether it "intended not only to waive sovereign immunity as an absolute bar to recovery, but also to remove any cap or ceiling on the dollar amount of claims the state would have to pay if and when found liable under the EVS."

     The court concluded that the statute in question was indeed intended to bar the state, as the owner of a police emergency vehicle, from asserting sovereign immunity as a complete defense to an injured party's claim for personal injuries caused by the negligent or wrongful act of the state's driver or the state.

     This alone, however, did not answer the question of whether the legislature also intended to remove the cap on recovery from losses occurring from negligent operation of state-owned emergency vehicles, based on the amount of insurance purchased.

     Actions against the state, the court noted, are further limited by the requirements of the State Tort Claims Act, 10 Del. C. §§ 4001-4005.

For plaintiffs to prevail in a suit against the State, they must show that: (1) the State has waived the defense of sovereign immunity for the actions mentioned in the complaint; and, (2) the State Tort Claims Act does not bar the action.

     The plaintiffs argued that the state had unlimited exposure both "because its agents negligently trained and supervised" the officer, and by reason of the officer's operation of the state owned police car.

     On the negligent training and supervision claim, the court held, the plaintiffs had failed to cite any statute with the clear intent to waive the state's immunity on those issues, so that summary judgment on those claims were properly granted by the trial court.

     On the claims arising out of the officer's operation of the police car, the state conceded that it waived sovereign immunity, but argued that it had done so only to the extent of the available commercial insurance coverage. The plaintiffs argued that a statute governing the use of emergency vehicles waived both sovereign immunity and any such limit of liability to the amount of insurance purchased, in instances of the negligent operation of such vehicles. The statute, 21 Del.C. § 4106 provides:

"The owner of such emergency vehicle may not assert the defense of governmental immunity in any action on account of any damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of such driver or owner."

     The Delaware Supreme Court found no clear intent to remove a cap on the state's exposure to damages in that statute, and found it difficult to "conceive" that the legislature would do so without specifically indicating an intent to do so.

     Accordingly, any award of damages against the defendants was limited to the remaining limits of the insurance available.

     Pauley v. Reinoehl, No. 679,2002, 2003 Del. Lexis 625 (2004).

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

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Man beaten by four "hoodlums" in parking lot of city park while distributing Hare Krishna literature during a concert in city owned facility could not recover damages from either city or concert producer. Plaintiff's injuries were not the "foreseeable result" of any problem with concert security.

     A two-day "Lollapalooza" concert was produced at a stadium owned by the City of New York on Randall's Island, featuring heavy metal and rap music acts. The concert was produced under a contract between a private concert promoter and the city, and included arrangements for the use of surrounding parking areas and park. The promoter's security personnel and city police officials met and made plans for security arrangements. The city, through the police department and parks department, agreed to provide security in the parking areas, with a total of approximately 39 officers patrolling the area. Private security was assigned to maintain traffic flow and direct parking.

     On the first day of the concert "four unidentified hoodlums" attacked a man in the parking lot while he distributed pamphlets on behalf of the International Society for Krishna Consciousness, known popularly as the Hare Krishnas. His attackers were alleged to be heavily drunk, and he did not see any police officers at the time, although he saw people in uniform directing traffic. At the time, he alleged, no police officer had been assigned to that particular parking area.

     He sued both the city and the concert promoter, arguing that they were liable for his injuries because they failed to provide adequate security. He argued that the Lollapalooza concert attracts patrons who are "predictably prone to criminal behavior," citing statistics of arrests made at prior events, including arrests for disorderly conduct, drunkenness, and property theft.

     The highest court in New York rejected this argument and found that the defendants did not owe the plaintiff a guarantee of protection from a "random act of violence." The plaintiff's injuries, the court found, were not proximately caused by any defect in the security provided, and were not reasonably foreseeable.

Here, the brutal attack was not a foreseeable result of any security breach. The types of crimes committed at past Lollapalooza concerts are of a lesser degree than a criminal assault, and thus would not lead defendants to predict that such an attack would occur or could be prevented. By all accounts, defendants took reasonable measures to deal with issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. A random criminal attack of this nature is not a predictable result of the gathering of a large group of people.

     Concert security, the court noted, cannot be everywhere at once, and even assuming there had been a lapse in the security in the parking lot, the plaintiff's injuries were not the result of that lapse, "but were caused by an independent, intervening criminal act."

     Maheshwari v. City of New York, #54, 2004 N.Y. LEXIS 978.

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

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Officers were not entitled to qualified immunity for going beyond the scope of a search warrant by searching a mother and her ten-year-old daughter while executing a warrant for narcotics at their home.

     Four Pennsylvania police officers appealed from the denial of qualified immunity in a lawsuit alleging the unlawful search of occupants of a residence. The officers argued that they did not violate clearly established federal constitutional rights when they searched a mother and her ten-year-old daughter in the course of executing a search warrant for narcotics at their home.

     Upholding the denial, a federal appeals court held that it is clearly established law that unless a search warrant "specifically incorporates an affidavit" in its language, the scope of the warrant may not be broadened by language in the affidavit. The court also found that, under any reasonable reading, the warrant in the case did not authorize the search of the mother and daughter, and nothing else otherwise justified their search.

     The affidavit for the warrant stated that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe, at Doe's "residence/office," or from a Volkswagen automobile parked in front. It also stated that individuals with histories of prior narcotics use or drug gang affiliations had been observed entering or leaving the residence and that the most recent methamphetamine purchase by the informant had occurred within the preceding 48 hours. The typed affidavit requested permission to search Doe's residence and his Volkswagen for drugs, paraphernalia, money, drug records and other evidence.

     Additionally, the affidavit stated:

The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and may attempt to conceal controlled substances on their persons. . . . This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive. . . . As a result of the information developed, your affiant requests that a search warrant ... be issued for ... the residence of [John Doe] and all occupants therein.

     In the warrant itself, in a space for "specific description of premises and/or persons to be searched," the attached affidavit was not mentioned, but rather it named only John Doe, giving his description, and identifying and describing his residence.

     In executing the warrant, officers encountered John Doe, his wife, and their ten-year-old daughter, with no other visitors present. The officers used a female traffic meter patrol officer to search the females in an upstairs bathroom, including having their lift their skirts and drop their pants. No contraband was found. The females sued, claiming that these searches violated their rights, in the absence of a search of them being authorized in the text of the warrant.

     The appeals court agreed, finding that the search warrant did not grant authority to search either the wife or daughter on its face, and the attached affidavit, which it could be argued sought authority to search anyone present was not incorporated by reference.

     The appeals court, finally, found no other independent basis for the search of the females, as there was no probable cause to suspect the wife, let alone the 10-year-old daughter, of drug activity.

     Doe v. Groody, #02-4532, 361 F.3d 232 (3d Cir. 2004).

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

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"Consent" to enter a home, procured by an officer's false statement that police had a warrant, did not constitute "consent" at all. Arrest of suspect inside home without consent or a warrant following such an entry would be improper.

    A resident of a home in Indiana was investigated for allegedly having sex with minors, and police sought to bring him in for questioning. A police detective phoned the man's mother, with whom he lived, and asked her whether she'd be willing to permit the police to enter her house to arrest her son, and she replied that she would agree only if they had a warrant. The detective told her "yes, we've got everything we need. It's all covered." In actuality, there was no such warrant.

     The mother sent her daughter to the house to let the police in. The suspect told his sister, "I'm going in my room. Answer the door. Just tell them I ain't here." The sister opened the door to the officers, who entered the house and once inside, saw the suspect through the open door to his bedroom, went in, and arrested him.

     He was subsequently charged with and convicted of sexual offenses and sentenced to 20 years in prison. If however, the arrest was illegal," a federal appeals court noted, "he is entitled to damages for the violation of his Fourth Amendment rights, though his conviction and sentence would be unaffected."

     In this case, the court ruled, the plaintiff's mother did not give effective consent to the officers' entry, "for her consent was conditioned on the police having a warrant, and they didn't." While officers can "pressure and cajole, conceal material facts, and actively mislead," the court stated, the law "draws the line at outright fraud."

     Additionally, the fact that the arrestee told his sister to answer the door did not mean that he, or his sister, agreed to let the officers who knocked enter. The appeals court found that there should be additional proceedings "to determine whether she reasonably understood her brother to mean that she could let the police have, as it were, the run of the house."

     The appeals court therefore reversed summary judgment for the defendant officers.

     Hadley v. Williams, #03-1530, 2004 U.S. App. Lexis 9446 (7th Cir.).

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

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Police officer could not be held liable for investigatory stop of car when a reasonable officer could have had articulable suspicion that the motorist had solicited a prostitute, even if that was not the officer's subjective motivation for making the stop. Federal appeals court overturns $17,500 award to motorist.

     A motorist pulled up to a corner gas station in Massachusetts and a woman got out of his car at night. A police officer who was rolling up to the intersection in his vehicle at the time subsequently stated that he knew the woman to be a prostitute who plied her trade on the corner, as well as a drug addict. The woman allegedly gave him a "mischievous smile." The motorist then gave the officer a quick glance, looked away, appeared "nervous" and left the parking lot with squealing tires at a high rate of speed. The officer followed and pulled the motorist over.

     After the stop, an altercation took place between the motorist, the officer, and several other officers who appeared on the scene in another car. The motorist was convicted by a jury of disturbing the peace and assault and battery on a police officer. The motorist filed a federal civil rights lawsuit against the first officer, claiming that he had engaged in an unlawful investigative stop of his vehicle, as well as asserting claims for excessive force against this officer and one other.

     A jury awarded the motorist $175,000 on the unlawful stop claim, while returning a verdict for the officers on the excessive force claim. The trial court reduced the award to $17,500. The officer appealed, arguing that there were insufficient grounds on which the jury could find liability.

     A federal appeals court found that the officer, based on what he knew at the time of the stop, had an arguable basis to conduct an investigatory stop, because he could have "articulable suspicion" to believe criminal activity had taken place.

     The appeals court said that it came "reluctantly" to the view that a police officer in the defendant's position "was entitled to have a reasonable suspicion" that the motorist had engaged in criminal activity. It stated its belief that it was "doubtful" whether the officer was "motivated by any such belief, and his conduct may well have been deplorable."

     Under the law, however, the court noted, the decisive question was whether an "objective observer" could have had a reasonable suspicion of criminal activity, and the answer to that question, under the circumstances, was yes. The officer argued that the motorist might reasonably have been suspected of  "four different crimes:" buying drugs from or selling them to the woman; driving under the influence of drugs; speeding or reckless driving; or soliciting prostitution. The officer never stated, however, the court related, that any one of these possibilities was in his mind at the time or that any or all of them motivated his decision.

     The appeals court found no basis in the facts for suspicion of sale or possession of drugs, driving under the influence, or speeding or reckless driving. This left the possibility that the motorist had solicited the woman's services as a prostitute. Here, the evidence available to the officer was "thin but not non-existent." The woman was known to be a prostitute, and the motorist was letting her out at her "known haunt," and the demeanor of both the woman and motorist were "faintly suspicious," with the motorist leaving quickly upon seeing the officer. The court found that this was enough to provide an officer with a reasonable suspicion of the solicitation of prostitution, sufficient to conduct an investigatory stop.

     The reason the appeals court stated that this outcome left a "sour taste" was because the officer himself testified that arresting customers of prostitutes "does not interest me," that he had "never arrested a prostitute in my nine years," and apparently acknowledge that he did not stop the motorist because he was interested in investigating whether the motorist had solicited a prostitute.

     Further, the motorist stated that he had merely offered the woman a ride because she said that she was sick. The woman told a police investigator looking into the incident that the officer made a "regular habit" of harassing her clients, doing so not to make arrests "but merely out of humor or malice." Admission of this evidence at trial might well, the appeals court found, have persuaded the jury of the officer's actual motive for stopping the motorist.

     The officer, however, having objective grounds to make an investigatory stop, cannot be held liable for making the stop subjectively motivated by a wrongful purpose, the court ruled. Accordingly, the court overturned the $17,500 award to the plaintiff motorist. The officer "may well have lacked any proper intent, but a reasonable police officer could have performed" a lawful investigatory stop based on what the officer knew, the court concluded. With that said, the appeals court added that "we join in the view--obviously shared by the district judge and the jury--that" the motorist "was badly treated by the police."

     Bolton v. Taylor, No. 01-2227, 2004 U.S. App. Lexis 8758 (1st Cir).

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

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Assault and Battery: Physical

     Jury award of $300,000 in compensatory and $1 million in punitive damages to arrestee and estate of second arrestee (who committed suicide months after arrest) on excessive force claims was not excessive. Diaz v. Vivoni, 301 F. Supp. 2d 92 (D. Puerto Rico 2003).

     Jury's verdict, finding both that motorist did not resist arrest after he stopped his car, and that officers who arrested him did not use excessive force during the arrest was not inconsistent and did not require a new trial on arrestee's claim, even though he was injured in the course of the arrest. Jury must have believed that officers' use of force was reasonable because of their belief that motorist was attempting to flee or resist arrest, based on prior pursuit which ranged over eleven miles. Brown v. City of McComb Mississippi Police Dept., #03-60034, 84 Fed. Appx. 404 (5th Cir. 2003). [PDF].

Defenses: Qualified Immunity

     Federal appeals court lacked jurisdiction to hear appeal of denial of qualified immunity to officers who shot man with a history of mental illness who they shot several times after responding to his 911 call. Trial court found that there were genuine contested issues of material fact, and appeals could not review that finding. Goffney v. Carr, #03-20072, 78 Fed. Appx. 974 (5th Cir. 2003). [PDF]

Defenses: Statute of Limitations

     Plaintiff in excessive force and false arrest lawsuit against officers was not entitled to an extension of the applicable statute of limitations based on court clerk's alleged failure to respond to his request about the status of his case, when the case was initially dismissed by the court because of the plaintiff's failure to pay the filing fee. Summary judgment was properly entered in favor of the defendants when the plaintiff re-filed the case over a year after its dismissal, which was six months after the statute of limitations expired. Campbell v. Kelly, #03-3170, 87 Fed. Appx. 234 (3d Cir. 2004).

     Statute of limitations barred motorist's civil rights claim arising out of alleged "high-risk" vehicle stop. Motorist's motion to extend time to file complaint was timely, but plaintiff failed to have summons to be served with order extending time issued until after limitations period had already expired. Spencer v. Town of Chapel Hill, 290 F. Supp. 2d 655 (M.D.N.C. 2003).

Disability Discrimination

     City found to have intentionally discriminated against group home for recovering alcoholics and drug addicts by failing to reasonably accommodate it in relation to exempting it from certain zoning regulations in violation of Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131(2), and in enforcing housing policies and fire code in a discriminatory manner against disabled residents of home. Tsombanidis v. West Haven Fire Dept., #02-7171(c), 352 F.3d 565 (2nd Cir. 2003). [PDF]

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest husband for violating court order of protection based on wife's statements, which they had no reason to doubt the veracity of. Coyle v. Coyle, 302 F. Supp. 2d 3 (E.D.N.Y. 2004).

     Probable cause was present for issuance of tickets charging individuals with disorderly conduct when they refused to leave a state park beach after entering through the water rather than a designated land-based entrance, as there was a rational basis for the regulation prohibiting entry from the water, and the disorderly conduct statute, which prohibited disobeying a lawful order of a police officer was not unconstitutionally vague. Federal appeals court declines to decide whether the issuance of the tickets constituted a Fourth Amendment "seizure." Dorman v. Castro, #02-9026, 347 F.3d 409 (2nd Cir. 2003), upholding 214 F. Supp. 2d 299 (E.D.N.Y. 2002). [PDF]

     Officer was entitled to qualified immunity from false arrest lawsuit by hotel employee arrested for burglary of hotel rooms. The arrestee had worked at the hotel during the hours when the burglaries occurred, a credit card stolen from the rooms was used at a store near the employees home, and the arrestee owned a black down jacket similar to the one worn by the suspect in a store surveillance tape. Under the circumstances, reasonably competent officers could disagree as to whether there was probable cause to make an arrest. Colon v. Ludemann, 283 F. Supp. 2d 747 (D. Conn. 2003).

     Officers had probable cause for arresting driver of vehicle when he himself admitted driving on despite receiving multiple signals from officers in fully-marked police vehicle directing him to stop his car. This, combined with duration of pursuit, was sufficient to give officers grounds to believe that he willfully attempted to flee or elude the officers in violation of a city ordinance. Glass v. Abbo, 284 F. Supp. 2d 700 (E.D. Mich. 2003).

False Arrest/Imprisonment: Warrant

     Police officer could reasonably believe that there was probable cause to arrest students for complicity to commit rape based on issuance of arrest warrant which relied on the account of eyewitnesses and was judicially approved, in the absence of any evidence that either the officer or an attorney whose advice he relied upon knowingly made any material misstatements of fact in the application for the warrant. The fact that ultimately no charges were pursued against the students did not alter the result, as the issue was the existence of probable cause at the time of the arrest. Crockett v. Cumberland College, No. 01-5306, 316 F.3d 571 (6th Cir. 2003).

Firearms Related: Intentional Use

     Police officers could reasonably have believed that their safety was in danger even if the plaintiff's version of the incident were believed--i.e., that he turned and faced an officer with his gun in his hand down by his side. Officers were therefore entitled to qualified immunity for their shooting plaintiff several times. Cunningham v. Hamilton, #03-1639, 84 Fed. Appx. 357 (4th Cir. 2004). [PDF]

     Officers acted reasonably in shooting man who allegedly failed to obey orders to put down an 8.5" knife which he had when they responded to his sister's call that he was "going crazy" and needed to "be committed somewhere." No evidence contradicted officers' testimony that the man charged at an officer with the knife, as sister's claim that her brother was trying to lay the knife on a picnic table after withdrawing it from a sheath was "pure speculation," given that she was not present at the time. Santana v. City of Hartford, 283 F. Supp. 2d 720 (D. Conn. 2003).

First Amendment

     Man arrested for failure to respond to complaint that he had not properly registered his dog could not pursue his claim that city officials retaliated against him for exercise of his First Amendment rights when he failed to provide any specifics or allege how the individual defendants participated in the supposed violation of his rights. Ledbetter v. City of Topeka, Kansas, No. 02-3202, 318 F.3d 1183 (10th Cir. 2003).

Freedom of Information

     Photos of body in a gruesome state following death were exempt from disclosure under the Freedom of Information Act's exception for "records or information compiled for law enforcement purposes," 5 U.S. Code §552(b)(7)(C), when their release would resulted in an "unwarranted invasion of personal privacy." National Archives v. Favish, 02-954, 124 S.Ct. 1570, 2004 U.S. Lexis 2546 (2004).

Governmental Liability: Policy/Custom

     Plaintiff failed to adequately allege that an official city policy or custom was behind the alleged disposal of his personal property, which was inside another person's car when it was impounded. City therefore could not be held liable for violation of his due process rights. Further, adequate state law remedies for retrieval of property had been available to plaintiff. Jones v. City of St. Louis, 285 F. Supp. 2d 1212 (E.D. Mo. 2003).

Malicious Prosecution

     In the absence of a showing that the defendants initiated a prosecution against the plaintiff, he could not pursue a malicious prosecution claim under either federal or New York law. Further, alleged violations of New York state criminal law, standing alone, could not be the basis for a federal civil rights action. Hansel v. Brazell, #02-9433, 85 Fed. Appx. 237 (2nd Cir. 2004). [PDF].

Negligence: Vehicle Related

     Motorist whose vehicle was accidentally hit by car driven by sheriff's office lieutenant was properly awarded $26,000 in general damages based on evidence that the accident aggravated her prior cervical and lumbar injuries, and that plaintiff had difficulty sitting following incident. Appeals court also upholds award of $3,000 in damages to motorist's spouse for loss of consortium. Prudential Ins. Co. v. Gideon, No. 2002 CA 0532, 845 So. 2d 437 (La. App. 1st Cir. 2003). [PDF].

Off-Duty/Color of Law: Firearms Related

     Genuine factual issue as to whether off-duty police officer acted in self-defense in approaching with gun drawn, vehicle which had chased his, precluded summary judgment for officer in negligence and emotional distress claim brought by motorist concerning traffic-related altercation. Freeman v. Teague, #37,932-CA, 862 So. 2d 371 (La. App. 2 Cir. 2003). [PDF].

Procedural: Amendment of Complaint

     Arrestee who failed to assert federal civil rights claim in initial complaint or in response to motion for summary judgment, and who did not submit a proposed amended complaint in the form required by the federal rules of civil procedure could not pursue a federal Fourth Amendment claim. Spadafore v. Gardner, No. 01-2087, 330 F.3d 849 (6th Cir. 2003). [June 3, 2003]

Property

     Louisiana court did not have authority to order release to juvenile arrestee's father of a four-wheeler seized as evidence of juvenile's alleged offense of negligently injuring another, because father was not a defendant in the underlying proceeding, now concluded, but a third party. State Ex Rel CC, No. 03-FA-762, 864 So. 2d 663 (La. App. 5 Cir. 2003). [PDF]

Public Protection: Disturbed/Suicidal Persons

     Police officers did not violate the Fourth Amendment rights of mental patient they placed in wrist and ankle restraints at the request of mental health facility staff members. Patient's history of violent outbursts and mental conditions made the action reasonable. Officers were also entitled to qualified immunity for allegedly leaving patient in restraints when they left, after being told by staff that patient was about to be escorted to another facility. Lucero v. City of Albuquerque, No. 02-2280, 77 Fed Appx. 470 (10th Cir. 2003).

     State highway officials did not violate the constitutional rights of man who committed suicide by jumping off of Golden Gate Bridge, based on their failure to erect a suicide barrier there. The defendants' awareness of a history of suicides on the bridge and the opening of the bridge to pedestrians was insufficient to impose a Fourteenth Amendment due process duty on them to prevent the decedent's suicide, in the absence of any "special relationship" with him. Imrie v. Golden Gate Bridge, Highway and Transp., 282 F. Supp. 2d 1145 (N.D. Cal. 2003).

Search and Seizure: Vehicle

     FBI agent seeking bank robbery suspect acted reasonably in stopping a vehicle and mistakenly detaining its driver and passenger based on circumstances of his observations, including passenger's presence inside store at time when confidential informant was to have met with suspect there, and his wearing of a white baseball cap, along with order from superior to stop the vehicle. Agent was therefore entitled to qualified immunity from unlawful seizure claim. Schultz v. Braga, 290 F. Supp. 2d 637 (D. Md. 2003).

Wrongful Death

     Minor child of motorist mistakenly shot and killed by police officers following pursuit, based on incorrect belief that he was suspect wanted for stealing police pistol, could not intervene in a wrongful death claim brought under Virginia state law by the personal representative of the decedent's estate. Personal representative adequately represented minor's interest as a beneficiary of the estate. A mere difference of opinion concerning litigation tactics did not show that personal representative's actions were "inadequate" as would justify a right to intervene in the case for the minor beneficiary. Jones v. Prince George's County, Maryland, #02-7104, 348 F.3d 1014 (D.C. Cir. 2003).

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

     Article: "Sudden, Unexplained Infant Death Investigations," by Ernst H. Weyand, 73 FBI Law Enforcement Bulletin No. 3, pgs. 10-15 (March 2004). [PDF] "Law enforcement officers can better handle SUID cases after gaining an understanding of their role in these investigations." Also available in .html format.

     Article: "Geologic Material as Physical Evidence," by Joseph A. Finley, Jr., 73 FBI Law Enforcement Bulletin No. 3, pgs. 1-5 (March 2004). [PDF] "Geologic materials often can provide scientific support as physical evidence in criminal and civil cases." Also available in .html format.

     Communications: Audit Report. "Implementation of the Communications Assistance for Law Enforcement Act by the Federal Bureau of Investigation," Report No. 04-19, April 2004. [PDF] A report by the Inspector General's Office of the U.S. Department of Justice. Also available in .html format.

     Litigation Documents: U.S. Department of Justice, Civil Rights Division: Investigation of the Prince George's County (Md.) Police Department 1. January 22, 2004 Memorandum of Agreement (PDF), 2. Consent Decree [PDF], 3. Complaint [PDF]. The memorandum discusses general policy on responding to incidents involving mentally ill persons, use of force policies (including use of Oleoresin Capsicum), evaluation, documentation and review of uses of force, training, receipt, investigation and review of misconduct allegations, management and supervision, and monitoring, reporting, and implementation of the agreement. The separate Consent Decree concerns the use of canines, and covers canine section policy and procedures (including guard and bark methodology, deployments, warnings, recording and evaluating canine bites, and accountability, as well as review of canine deployments, training, management and supervision, and monitoring, reporting, and implementation). The Complaint concerns the County Police Department's use of canines. Press release concerning the agreement and consent decree also available. "The agreements require widespread reform in PGPD’s use of canines and force. In addition to establishing policies governing the use of canines and the use of force, these agreements also establish specific training requirements and accountability practices. Most notably, the agreements will require PGPD to take the following steps: reform its use of force policies, as well as its training, reporting, and accountability procedures; adopt and implement a “guard and bark” methodology for canines, whereby canines will locate suspects and hold them at bay by barking loudly; use of biting is restricted to specific incidents where necessary for arrest or safety of officers or civilians; create a special board to review all firearm discharges; operate a system to manage risk regarding officer performance; effectively review canine bites and other related activity; and investigate and review misconduct allegations."

     Pursuits: Law Enforcement: "Motor vehicle crash deaths related to police pursuits in the United States," F. P. Rivara and C. D. Mack, Harborview Injury Prevention and Research Center and Departments of Pediatrics and Epidemiology, University of Washington, Seattle Departments of Pediatrics and Epidemiology, University of Washington, Seattle.Injury Prevention (April 2004) 10: 93-95. Abstract. Full text is available online. (Requires registration and $8 payment). The study examined all traffic fatalities in the U.S. from 1994 to 2002 and determined that 2,654 fatal crashes resulted from police pursuits, involving a total of 3,146 deaths. According to the study, 1,048 of the decedents were not in fleeing vehicles, but rather were occupants of another vehicle, pedestrians or bicyclists. Forty police officers died in the course of such pursuits.

     Racial & Gender Profiling: Institute on Race and Justice Racial and Gender Profiling Study. Final Report May 4, 2004. 107 pgs. [PDF] Reports on a study of racial and gender profiling by police departments in Massachusetts. The study concluded that nearly three out of four such departments engaged in racial profiling of minority drivers. The study included 366 departments, including city, town, and state police, as well as university state transit, and Amtrak police departments or agencies, of which only 92 were found free of such profiling.

     Statistics: "Justice Expenditure and Employment in the United States, 2001." Provides selected data from the Census Bureau's Annual General Finance and Employment Surveys. Data presented include police protection, judicial and legal services, and corrections expenditure and employment for Federal, State, and local governments in 2001 and national trend data for 1982 to 2001. Expenditure data are provided for fiscal year 2001; employment and payroll data are for the month of March 2001. The report compares justice expenditure to spending for other governmental services and analyzes trends in justice spending and employment. It also presents per capita employment data relative to other State and government services, as well as per capita expenditure data by governmental function. 05/04 NCJ 202792 Press release | Acrobat file (281K) | ASCII file (26K) | Spreadsheets (zip format 22K)

     Statistics: "Civil Trial Cases and Verdicts in Large Counties, 2001." Examines general civil cases (torts, contracts, and real property) disposed of by bench or jury trial in the nation’s 75 most populous counties in 2001. Information reported includes the type of case, types of plaintiffs and defendants, trial winners, amount of total damages awarded, amount of punitive damages awarded, and case processing time. This is the third in a series of data collections begun in 1992. Highlights include the following: During 2001 a jury decided almost 75% of the 12,000 tort, contract, and real property trials in the nation's 75 largest counties. In jury trials, the median award decreased from $65,000 in 1992 to $37,000 in 2001 in these counties. Two-thirds of disposed trials in 2001 involved tort claims, and about a third involved contractual issues. 04/04 NCJ 202803 Press release | Acrobat file (235K) | ASCII file (34K) | Spreadsheets (zip format 34K)

     Statistics: "Law Enforcement Management and Administrative Statistics, 2000: Data for Individual State and Local Agencies with 100 or More Officers." Presents findings from the 2000 LEMAS survey which collected data from State and local agencies that employed 100 or more full-time sworn officers. Subject areas covered include personnel, expenditures and pay, operations, community policing, policies and programs, and computers and information systems. Tables present summary and agency-specific data for 755 local agencies and 49 State agencies. 04/04, NCJ 203350 Full report: Acrobat file (4M) | ASCII file No tables or graphs (32K) To download specific sections of the report, or supporting spreadsheets, click here.

     Reference:

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

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