CONTENTS

Plaintiff who received $25,000 settlement from city on excessive force claim was a prevailing party entitled to an award of attorneys' fees after trial court incorporated settlement agreement into its dismissal order, but, under terms of settlement agreement, defendant city was entitled to an evidentiary hearing on the merits of the plaintiff's underlying claims prior to the determination of a reasonable amount of an attorneys' fee award.

     A Florida man filed a federal civil rights lawsuit against the city and a number of police officers, claiming that he had been subjected to excessive force and other violations of his rights during his arrest in a nightclub parking lot. Following mediation, the parties reached a settlement agreement under which the city agreed to pay damages of $25,000, settling all issues in the case except for the payment of attorneys' fees and costs. The parties notified the trial court of their agreement, resulting in the case being dismissed, with jurisdiction being retained over any dispute on the issue of attorneys' fees and costs. The original plaintiff had died in the meantime, and his estate was substituted as the plaintiff party.

     A federal magistrate ruled that the plaintiff was a prevailing party and that a motion for attorneys' fees should be granted because of the "significant" payment to the plaintiff of $25,000, but recommended that a motion by the city for an evidentiary hearing on the merits of the underlying federal civil rights claims be denied, since the court should not be "entangled" in protracted litigation after the substantive issues of a case have been resolved.

     The federal trial judge agreed with the magistrate that an evidentiary hearing on the merits of the civil rights claims was unnecessary, but rejected the recommendation that attorneys' fees be awarded.

     A federal appeals court agreed that the plaintiff was a "prevailing party," entitled to an award of attorneys' fees, since the settlement agreement, which was incorporated by the trial court into its dismissal order "judicially altered" the relationship of the parties, and the court retained jurisdiction to enforce its terms.

     At the same time, the settlement agreement itself conditioned an award of attorneys' fees upon the trial court retaining jurisdiction in order to determine whether the plaintiff's claims had merit. The federal appeals court therefore ordered the trial court to hold an evidentiary hearing on the merits of the plaintiffs' federal civil rights claims with regard to a reasonable award of attorneys' fees and costs.

     Smalbein v. City of Daytona Beach, No. 03-12113, 353 F.3d 901 (11th Cir. 2003).

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Officer was not entitled to qualified immunity on claim that he shot a mentally ill man in the stomach as he pointed a butcher knife towards himself with suicidal intentions, as deadly force is only permissible when a suspect poses an imminent threat to an officer or to others.

     A 33-year-old man with a long history of mental illness, and previously found by both federal and state governments to be disabled, was taking numerous medications and also had a history of alcohol abuse. He allegedly began hearing voices telling him to kill himself, and he "over-medicated" in an attempt to calm himself, subsequently using threatening and abusive language in a phone conversation with his mother.

     He allegedly hit one of his roommates in the head with a pickle jar during an argument, refused to allow a second roommate to leave the apartment, and pulled a butcher knife from the waistband of his pants, stating that he was going to cut his own wrists or throat. Two police officers arrived on the scene after receiving a dispatch indicating that a battery was in progress at the apartment, and that the suspect had a weapon.

     When the officers confronted the man right outside his apartment, he responded to their orders that he drop the knife by pressing the knife to his chest and using words to the effect of "you're going to have to shoot me--I won't drop the knife." One of the officers fired three shots when the man started to move towards him, none of which struck him, and the man moved back into his apartment.

     The man later appeared on the building balcony, still holding the knife, and allegedly bringing the tip of it toward himself so that the blade was turned inward toward his own stomach. He later claimed that as he did this, one of the officers shot him in the stomach. The officer stated that the man made the sign of the cross with the knife, closed one eye as if he were taking aim, and raised the knife to the right side of his head, causing him to fear that the suspect was going to throw the knife at him or jump off the balcony on him, which is why he fired.

     The suspect survived but was seriously injured and sued the city and the officer who shot him, claiming excessive use of force.

     A federal trial court denied the defendant officer's motion for qualified immunity. It found that genuine issues of fact as to whether the plaintiff had been turning the knife toward himself or preparing to throw it at the officer and whether the officer knew or should have known that the suspect was mentally ill precluded summary judgment.

     The court also stated that, if the facts were as the plaintiff stated them, that he was pointing the knife at himself when he was shot, it was clearly established in 2000, the date of the incident, that deadly force was only permitted if the officer reasonably believed that the suspect posed an immediate threat to the officer or to others. The alleged conduct of shooting the suspect in the stomach as he turned the knife against himself, if true, violated clearly established constitutional rights which a reasonable officer would have known of.

     On the other hand, if the officer reasonably believed that the plaintiff had been planning to throw the knife at him, the outcome would be different.

     Buchanan v. City of Milwaukee, 290 F. Supp. 2d 954 (E.D. Wis. 2003).

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Deputy sheriff was properly awarded $225,000 in damages against newspaper, its editor/publisher, and a columnist, based on articles which called him a "murderer" and accused him of beating a handcuffed arrestee to death with a flashlight. Georgia appeals court finds that statements were published with knowledge that they were false, or in reckless disregard of the truth.

     A deputy sheriff sued a newspaper, its editor and publisher, and one of its columnists for libel under Georgia state law after the paper published a series of articles written by the editor and columnist which stated that he had murdered a man by "brutally and repeatedly hitting" him with a flashlight while he was handcuffed and not resisting arrest. The article claimed that "enhanced video footage" showed the deputy beating the man, and that the beating caused the man's death.

     The deputy demanded a retraction, but the defendants refused to publish one, and continued to publish articles repeating their version of the incident. In all, according to the deputy, the newspaper called him a murderer 17 times and reported that he brutally beat the arrestee with the flashlight 48 times. In at least one instance, the columnist said that the deputy had "lynched" the arrestee.

     A jury returned a verdict for the plaintiff deputy and awarded him $65,000 in compensatory damages and $10,000 in punitive damages against each defendant, for a total award of $225,000. On appeal, the defendants contended that the statements published were true, and that the trial court erred in refusing to grant their motion for a directed verdict because the plaintiff failed to prove by clear and convincing evidence that the statements were made with "actual malice," i.e., knowing that they were false or with a reckless disregard for their falsity.

     An intermediate Georgia appeals court disagreed with the defendants, and upheld the jury's award to the deputy.

     The court found that evidence in the case plainly demonstrated that the defendants had no reason to believe that the statements made in the article were true. The deputy had stopped the arrestee for driving on the wrong side of the road, and arrested him after he was unable to produce a driver's license or proof of insurance, and furnished the deputy with a name and date of birth that did not match the computer records. He also had slurred speech and a strong smell of alcohol.

     The arrestee allegedly resisted the deputy, disobeying orders by putting his hands in his pockets and trying to resist handcuffing. When he was handcuffed, the deputy found a prisoner identification card and a pocketknife on him, and a computer search showed that a warrant for the motorist's arrest existed. The arrestee resisted entering the patrol car and began pulling, pushing, and kicking the deputy, according to the court, escaping from the deputy's control, at which point the deputy executed a maneuver known as an "arm-bar take down" to regain control.

     The deputy denied hitting the arrestee with a flashlight, and a video of the event taken by a camera in the patrol car of a backup officer who responded showed that the deputy's flashlight was attached to his police belt during the incident. All eyewitnesses to the incident testified that the deputy never hit the arrestee with anything. Videos taken by cameras in two patrol cars were played to the jury.

     A medical examiner testified, after performing an autopsy, that the arrestee had died from blunt force trauma to the head that was received when the deputy took him to the ground, and not from a beating. The death was attributed to what otherwise would have been a minor injury except for the arrestee's brain atrophy and liver damage caused by his chronic alcoholism. An investigation by the Georgia Bureau of Investigation (GBI) found no evidence that the deputy hit the arrestee with a flashlight or with anything else.

     Evidence in the lawsuit showed that when the columnist wrote his first article stating that the arrestee was murdered by the deputy, he had not seen the videos, attended the coroner's inquest or read its complete transcript, and had not reviewed the GBI report or interviewed any witnesses.

     The evidence, the appeals court found, fully supported the jury's conclusion that the articles were published with "constitutional malice" and without a reasonable belief in their truthfulness. Anyone reading their articles would not know that the eyewitnesses, the coroner's inquest, the medical examiner's report, and the GBI report all contradicted the statements in the articles.

     We conclude that the defendants so doubted the truthfulness of their articles that they refused to print any information that contradicted their version of the events.

     Lake Park Post, Inc. v. Farmer, #A03A0841, 590 S.E.2d 254 (Ga. App. 2003).

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County was properly held liable for death of arrestee subjected to "total appendage restraint procedure," when expert testimony indicated that he died of positional asphyxia, but jury's assessment of damages at $2 million was excessive when decedent had limited future financial prospects, and probably would have been sent back to prison, had he survived, for firing a gun at passing motorists in a busy intersection.

     A man who had just been released from prison stood in the middle of a busy intersection in Los Angeles, California and fired a loaded gun into the air and at passing motorists. Members of the county sheriff's department responded to a 911 call reporting this, and handcuffed the man with his hands behind his back, placing him in the back of their patrol car. He then started thrashing about, and the deputies pulled him out of the car, placing him, still handcuffed face-down on the ground, and executed a "total appendage restraint procedure" (TARP), also commonly called hog-tie.

     By the time the deputies finished, the suspect was unconscious. When they rolled him over, he was no longer breathing and the paramedics who came to the scene were unable to revive him. The entire incident was captured on videotape. The decedents parents filed a wrongful death lawsuit against the county, the sheriff's department, and the individual deputies.

     A jury found that the county was negligent and that the negligence was the cause of the decedent's death. It also found that 35 percent of the negligence was attributable to the decedent's own conduct. The jury awarded $2 million to the plaintiffs, which was reduced by the 35 percent factor to $1,300,000.

     On appeal, an intermediate California appeals court rejected the county's argument that the plaintiffs had failed to prove that the deputies' actions caused the death, but agreed with the county that the damages awarded by the jury were excessive. The appeals court ordered a new trial on the issue of damages.

     Evidence by a forensic pathologist at the trial included testimony that in his opinion the decedent had died as a result of "positional asphyxia," based on the medical evidence and the videotape. He testified that the decedent had a mildly enlarged heart, but disagreed with the opinion expressed in an autopsy report that the decedent had died as a result of that coronary anomaly. This doctor's opinion was that, had the decedent not been subjected to the TARP procedure, he would not have died on the day of his arrest.

     The appeals court stated that the fact that this witness rejected the county's theory of causation of the death--the enlarged heart, an artery anomaly, and the use of cocaine--did not render his expert medical opinion unreasonable. Additionally, the court rejected the argument that the doctor was not competent to give his opinion about the cause of death because he was not present at the autopsy, since he based his opinion on the videotape of the death, the coroner's autopsy report and photographs, the report of another pathologist who performed a post mortem examination of the decedent, the decedent's records from the Department of Corrections, and deposition testimony given by several of the deputies.

     On the issue of the damages awarded, the appeals court found that the amount was clearly excessive. "Charitably put," the court noted, the decedent's "future financial prospects at the time of his death were limited," as he was recently paroled, had been in and out of prison several times during the prior 20 years, and was "addicted to cocaine" and "sufficiently deranged to stand in the middle of a busy intersection, shooting a loaded gun into the air and at passing motorists." Indeed, had he survived, it was probable that he would have been convicted of several felonies and sentenced to state prison for up to 21 years, the court pointed out.

     While the court did not doubt that the decedent's parents loved him, it also noted that he did not see either of them for a period of 20 years preceding his death, and that neither of them knew his address or phone number at the time of his death. Under these circumstances, the court was "unable to say that a rational person would value their lost 'comfort, society, and companionship' at $2 million." Instead, the court believed, "the inescapable conclusion is that the jury included in its calculations some measure of damages for the parents' emotional distress, or some amount intended to punish the county for its conduct." In either event, "the damage award simply cannot stand."

     Nelson v. County of Los Angeles, #B161431, 113 Cal. App. 4th 783, 6 Cal. Rptr. 3d 650 (Cal. App. 2003).

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California Supreme Court rules that there is no liability for a public entity or its employees based on the alleged delay or failure to dispatch emergency personnel and equipment in response to a 911 call for assistance. Exception under statute for actions taken in bad faith or with gross negligence do not impose a general duty to provide assistance, but rather define the level of negligence needed to support liability once aid is actually rendered.

     The parents of a three-year-old girl who suffered an electric shock while bathing called the city's 911 emergency number. They claimed that the city failed to dispatch emergency personnel with emergency equipment in response to the call, so that the girl was denied early and prompt medical attention. As a result, they claimed, she suffered permanent, debilitating injuries.

     The parents, on behalf of themselves and their minor daughter, sued the city and various agencies involved in the 911 system and emergency dispatch services in California state court, seeking damages.

     The California Supreme Court has upheld the dismissal of the lawsuit by the trial court and the affirmance of that result by an intermediate California appeals court. It ruled that public entities which provide emergency services, such as 911 phone systems, have qualified immunity from liability under a California state statute, Cal. Health & Safety Code Sec. 1799.107(b), in the absence of actions taken in bad faith or in a grossly negligent manner.

     This duty not to act in bad faith or with gross negligence, the court found, did not impose any general duty on emergency personnel to provide assistance whenever or wherever it was summoned, but rather defines the level of negligence which would be sufficient to impose liability once assistance is, in fact, furnished. The general immunity provided under the statute for emergency services definitely applies to 911 emergency dispatching, the court found. Accordingly, the defendant agencies and city were not subject to either direct or vicarious liability for injuries attributable to the failure or delay of their employees in responding to a 911 call.

     In this case, the court additionally noted, the plaintiffs had failed to allege any facts showing any acts of bad faith or gross negligence on the part of the defendants or their employees.

     Eastburn v. Regional Fire Protection Authority, No. S107792, 7 Cal. Rptr. 3d 552, 80 P.3d 656 (Cal. 2003).

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City and police officials had no duty to protect apartment complex security guard against alleged murder by a man he used pepper spray against while on the job, despite an alleged threat to kill the security guard when the guard had him arrested.

     The family of a security guard in Mississippi filed a wrongful death lawsuit against the city, the mayor, the police chief, and other defendants after the guard was allegedly murdered by a released arrestee. The security guard was performing his job duties at an apartment complex when he was required to subdue the man with pepper spray or mace, following which the police took the man into custody.

     At some point, the arrestee allegedly stated that he would kill the security guard, and the guard's family claimed that despite this statement, the police department released the arrestee from custody, following which he did attack and murder the security guard. The lawsuit asserted claims for violation of the security guard's constitutional rights by failing to provide him with protection, as well as for negligence under state law.

     The lawsuit was removed to federal court, where all the federal claims were dismissed, and the case then was returned to state court. In state court, the trial court granted summary judgment to the defendants on the remaining state law negligence or "reckless disregard" claims. The court rejected the argument that the defendants had improperly failed to hold, control, and contain the arrestee when there was evidence of a "clear intention of immediate harm" to the security guard.

     Upholding this result, the Supreme Court of Mississippi found that city officials, in their individual capacity, had no duty to the security guard to provide him with protection. The officials were not "guarantors" of the safety of the general public under state law, and were not present when the arrestee allegedly threatened the guard's life, and were unaware of the threat.

     The court also noted that the plaintiffs' complaint did not specify when, or to whom, the alleged threat was made. Assuming, for the purposes of argument, that some unidentified officer of the city's police department heard the threat, and that the city was thereby "charged with knowledge of the threat," the court reasoned, "it does not necessarily follow that liability should attach to the City of Canton and the municipal officials."

     Police officers, the court noted, in the course of making daily arrests, must hear "all kinds of threats" being made by arrestees, especially those made in the heat of the moment. They must decide how serious a threat is and whether it is mere "loose talk." Even if there should be liability, the court stated, "it would attach to the municipal officials in their official, not individual capacity."

     There was, the court found, no one act undertaken or which the defendants failed to undertake in their individual capacity which could operate to create some liability for the security guard's death, and no evidence that the officials in the exercise of their governmental discretion, "greatly or substantially exceeded their authority, or acted with reckless disregard" for the security guard's safety, and thereby caused harm to him.

     Dependents of Reid v. City of Canton, No. 2002-CA-00721-COA, 858 So.2d 163 (Miss. App. 2003).

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Homeowner failed to prove her claims that officers executing a search warrant at her residence caused unreasonable property damage or planted evidence of drugs there.

     An Illinois homeowner claimed that police executing a search warrant at her residence caused unreasonable property damage and planted evidence. Officers came to the residence with a valid search warrant, and allegedly used a battering ram to gain entry, and threw a flash-bang device into the home shortly thereafter. At some point during the entry, the homeowner suffered injury to her knee and hand and received a large bruise on her back. She was allegedly struck in the face by the door as the battering ram pushed it.

     During the ensuing search, officers allegedly found a metal box containing drugs and drug paraphernalia in the front bedroom. The homeowner stated that she was not aware of its presence there. Her son, who still had many belongings in the home, although he no longer lived there, also denied knowledge of the contraband. Her two sons both had access to the front bedroom, and visited the home regularly, as did the homeowner's sister, who stayed overnight in the front bedroom from time to time.

     A federal appeals court upheld summary judgment for the officers on both the property damage and planted evidence claims.

     As for the property damage claim, the homeowner failed to show that any of her personal property was damaged during the search of her home, as required to support a claim for unreasonable damage, since she provided no evidence regarding the pre-search condition of her home or any specific evidence that any particular property item was damaged. While the plaintiff claimed that her home was in a "state of devastation" immediately after the search, the officers testified that from the moment of entry, it was "cluttered and disorderly," and "so messy that the officers believed it would be difficult to move around and search."

     The appeals court also found the plaintiff's claim that the officers planted the evidence of the drugs "factually unsupported" and based on mere "speculation."

     The plaintiff herself only stated that she did not know that the box with the drugs was in the front bedroom, and never denied that it could have been there prior to the search. In her own deposition, she even admitted that her son could have left the box in the front bedroom. The "bare conclusion" that an officer planted the contraband, therefore, was unsupported, and the trial court properly granted summary judgment on the claim.

     The appeals court also upheld a directed verdict in favor of an officer on the plaintiff's claim that he injured her during the entry, since the plaintiff offered "no affirmative evidence" to show that the officer was responsible for the bruise on her back.

     Heft v. Moore, No. 02-4110, 351 F. 3d 278 (7th Cir. 2003).

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City ordinance which allowed police officers to subject persons under 21 years of age to a warrantless breath test for alcohol use upon reasonable suspicion was unconstitutional and not justified by a "special needs" exception to the warrant requirement or exigent circumstances.

     A minor in Michigan in a public park was subjected to an alcohol breath test under a city ordinance that allowed police officers, on the basis of reasonable suspicion, to demand that a person under 21 years old take such a test, without requiring a warrant. The minor brought a federal civil rights lawsuit seeking a judicial declaration that the ordinance violated the Fourth Amendment and seeking both money damages and an award of attorneys' fees.

     The city argued that the practice of obtaining such breath samples from minors without warrants was justified by a "special needs" exception to the warrant requirement, and that the searches are reasonable because they are based on reasonable suspicion, as well as justified by exigent circumstances due to the length of time which would be required in the city to obtain a search warrant for breath samples, making obtaining a warrant "impracticable."

     The federal trial court, however, noted that in instances that courts have allowed for "special needs" exceptions to the warrant requirement, such as in the drug testing of applicants for safety-sensitive jobs, municipal bus drivers, or firemen and police officers, the primary purpose of the searches has not been the enforcement of criminal laws or the gathering of evidence.

There is nothing "special" in the need of law enforcement to detect evidence of ordinary criminal wrongdoing: even where crime is on the rise and the disorder and insecurity caused by criminal behavior in a community is grave, the Supreme Court has consistently held that "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose."

     In this case, however, the court found that the principal purpose of the city ordinance was to gather evidence of underage drinking in aid of a criminal prosecution. It further stated that the fact that there may be other purposes, such as stemming the trend of increased under-age drinking and to protect the public from the damage that can be caused by young people under the influence of alcohol, which might qualify as "special needs," did not shelter the ordinance from the demands of the Fourth Amendment's warrant requirement.

     Accordingly, the court ruled that the ordinance was not justified under the "special needs" exception to the requirement that a search of a person, including a search and seizure of breath samples, must be "authorized by a judicial officer through the search warrant process." The court also rejected the "exigent circumstances" justification for the warrantless searches.

     The court accepted the city's contention that it might take up to four hours to obtain a search warrant, but it found that the defendant city had failed to address the availability of telephone procedures which, according to the plaintiff, are widely used and can result in a judicial authorization to take breath or blood samples in a relatively short time, before alcohol present in a suspect's body would be destroyed naturally by the passage of time. Accordingly, the court found that the time needed to obtain a warrant in cases that fall within the scope of the ordinance does not create an "exigency as a matter of legislative fact, nor does it serve to establish an automatic exemption from the warrant requirement."

     The court noted that the offense involved was relatively minor, with the maximum penalty for a person convicted of being a minor in possession of alcohol being a $500 fine and no jail time. Given this, the court found further that the city failed to show that its interests were "sufficiently important to justify the warrantless search."

     In this case, the plaintiff "did nothing to diminish her expectation of privacy," the court stated. To the extent that the ordinance authorizes warrantless searches in all cases, the court ruled, it is unconstitutional. The court therefore granted the plaintiff's motion for partial summary judgment.

     Spencer v. City of Bay City, 292 F. Supp. 2d 932 (E.D. Mich. 2003).

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Federal trial court erred in dismissing convicted plaintiff's federal civil rights lawsuit asserting claims for alleged unreasonable searches and seizures prior to, during, and subsequent to his arrest. A finding that the arrestee's Fourth Amendment rights were violated did not necessarily imply the invalidity of the convictions.

     An Alabama prisoner serving life sentences for two convictions for second-degree burglary and receipt of stolen property filed a federal civil rights lawsuit claiming that police officers violated his Fourth Amendment rights by stopping, searching, and arresting him without reasonable suspicion, probable cause, or a warrant. He also claimed that the officers' treatment of him after the initial stop and arrest, including holding him against his will, forcing him to remove his clothes and wait in the cold, and interrogating him in his underwear was unconstitutional.

     The trial court dismissed the lawsuit even before the service of process on the defendants, ruling that it was barred by the principles stated in Heck v. Humphrey, 512 U.S. 477 (1994), under which a federal civil rights claim for money damages may not be pursued if such an award would imply the unlawfulness of a criminal conviction or render a conviction invalid, if the plaintiff could not, as a preliminary matter, show that the conviction had already been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

     A federal appeals court reversed, ordering further proceedings. It noted that "an illegal search or arrest may be followed by a valid conviction," so that a successful federal civil rights claim for Fourth Amendment search and seizure violations "does not necessarily imply the invalidity of a conviction."

     In this case, the appeals court stated, since the circumstances of the plaintiff's convictions for burglary and receipt of stolen property "are unknown from the record," it was "impossible, therefore," for the trial court to determine that a successful civil rights action for unreasonable search and seizure necessarily implied the invalidity of those convictions, so that the trial court erred in finding these claims barred under Heck "at this stage in the proceedings."

     Hughes v. Lott, #02-11508, 350 F.3d 1157 (11th Cir. 2003).

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Motorist convicted of cocaine trafficking on the basis of evidence uncovered during search of his vehicle following a stop for following too closely behind another vehicle could not pursue a federal civil rights claim seeking money damages for alleged unlawful search and seizure when his conviction had not been set aside, and a damage award would necessarily imply the invalidity of his conviction.

     A South Carolina state trooper stopped a motorist for allegedly following too closely behind another vehicle. During the stop, the trooper claimed that he detected the odor of marijuana and then proceeded to search it, ultimately uncovering a loaded 9mm handgun, four plastic bags containing a "white compressed powder substance" and "green plant material," and a cigar stuffed with "green plant material." Following a trial, the motorist was found guilty of cocaine trafficking and sentenced to twelve years imprisonment.

     While serving his sentence, the arrestee filed a federal civil rights lawsuit against the trooper and the state, claiming that he was deprived of his constitutional rights by an illegal stop, search, and seizure of his vehicle and the evidence found in it. He claimed that the trooper lacked probable cause to stop him for following too closely behind another vehicle because the "following-too-closely" violation cannot "be determined by any preset 'mathematical formula,' but requires as a factor a condition of an accident," which "never occurred."

     The plaintiff argued that, as he contended the stop was unlawful, the ensuing search and seizure was also unlawful as the "fruit of the poisonous tree," i.e., the product of an unlawful stop. His complaint sought money damages.

     Upholding the dismissal of the plaintiff's lawsuit, a federal appeals court found that any claims for money damages against the State of South Carolina were barred by the Eleventh Amendment to the U.S. Constitution, barring such claims.

     The appeals court also found that the claims against the trooper were also barred by the principles stated in Heck v. Humphrey, 512 U.S. 477 (1994), under which a federal civil rights claim for money damages may not be pursued if such an award would imply the unlawfulness of a criminal conviction or render a conviction invalid, if the plaintiff could not, as a preliminary matter, show that the conviction had already been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

     In this case, the court noted, the conviction of the plaintiff for cocaine trafficking was based solely on the evidence seized as a result of the stop in question and the ensuing search and seizure. Accordingly, an award of damages on the basis that the stop, search, and seizure were unlawful would necessarily imply the invalidity of the plaintiff's conviction.

     In the particular circumstances of this case, there could be no independent source for the discovery of the cocaine and no "inevitable discovery" of it. Accordingly, while there may be circumstances in which the evidence uncovered in an unlawful search and seizure was not essential to a conviction, so that money damages could possibly be pursued for an illegal search without necessarily calling into question the validity of a criminal conviction, this was not such a case.

     Accordingly, claims against the trooper were properly dismissed under the principles set down in Heck v. Humphrey, the appeals court concluded

     Ballenger v. Owens, #02-7394, 352 F.3d 842 (4th Cir. 2003).

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Strip searches of patrons during execution of search warrant for drug transactions at nightclub were unlawful when carried out without individualized reasonable suspicion of possession of drugs or probable cause, and sheriff was not entitled to qualified immunity for conducting the searches. Federal appeals court upholds award of $100 in nominal damages and $15,000 in punitive damages for each plaintiff.

     A Texas county sheriff obtained a search warrant for a nightclub based on information he received from a confidential informant concerning alleged crack cocaine dealing there by five individuals. The warrant authorized entry into the club and a search for personal property described, as well as the arrest of each of the five suspects.

     When the search warrant was executed, the sheriff led a group of approximately forty officers to the club. They detained approximately 100 people present inside the club for approximately three hours, and during that time allegedly conducted a pat-down search, strip search, and warrants check on each individual there. The sheriff acknowledged that it was his standard policy to conduct a strip search on each person within the search area, with or without individualized probable cause.

     In a federal civil rights lawsuit brought initially by 17 individuals present in the club, who were not suspects named in the warrant, it was asserted that the sheriff's actions, and particularly the strip searches, violated the Fourth Amendment. Four of the plaintiffs were dismissed and ten others settled their claims.

     After a bench trial on claims by the remaining three plaintiffs, the court concluded that the strip searches, conducted without individualized reasonable suspicion of possession of drugs or probable cause, were unlawful and that the sheriff was not entitled to qualified immunity, as the constitutional rights involved were clearly established. Further, the county was liable for the sheriff's conduct because he is a policymaker whose actions were the moving force behind the violation of the plaintiffs' constitutional rights.

     The trial judge awarded each of the plaintiffs nominal damages of $100, along with punitive damages of $15,000 against the sheriff in his individual capacity.

     A federal appeals court upheld this result, and found that the record supported the finding that the sheriff acted with "reckless indifference toward" the plaintiffs' constitutional rights, which justified the award of punitive damages against him.

     Williams v. Kaufman County, No. 02-10500, 352 F.3d 994 (5th Cir. 2003).

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Federal court rules that "hand off" procedure under which evidence gathered by one investigating unit under wiretap orders was "handed off" to another investigating unit without disclosing the wiretap as a source of the evidence, resulting in prosecutions in which the existence of the wiretaps was never disclosed, was "per se unconstitutional," but that individual police and prosecution defendants who participated in the practice were entitled to qualified immunity from money damages, since the unconstitutionality of this practice was not previously established.

     The Los Angeles Police Department engaged in two separate narcotics wiretap investigations based on suspicion that a cell phone company and a cell phone retailer were involved in providing cellular telephone and digital paging services to narcotics traffickers and money launderers. The department obtained wiretap orders which resulted in the interception of over 30,000 conversations across thirty of the cell phone company's lines during a period of eleven months. It also obtained orders which allowed the interception of twenty-two telephone lines of the cell phone retailer, which resulted in the interception of "dozens of thousands of conversations" over a twenty-two month period.

     The wiretaps uncovered substantial criminal activity, although none of it involved the purportedly targeted parties. A lawsuit based on a claim of violation of the federal and California state wiretapping statutes, 18 U.S.C. Sec. 2518 and Cal. Penal Code Sec. 629.50 et seq., was subsequently filed by plaintiffs who were mere clients of the cell phone company and retailer, and who, in some instances, came under investigation as a result of the conversations monitored during the wiretapping.

     The complaint in the case asserts that the Los Angeles Police Department and Los Angeles District Attorney intentionally concealed the existence of the wiretaps from the plaintiffs by a "hand off" procedure, designed to make use of incriminating evidence derived from the wiretaps, while at the same time preventing the plaintiffs from ever learning of the existence of the wiretaps.

     The hand-off procedure, according to the court, works in the following manner. An investigative unit applies for and obtains a wiretap order from a judge and then conducts electronic surveillance and gathers specific evidence of imminent criminal conduct. But rather than arriving at the scene and making arrests after observing the criminal conduct, the investigating unit transmits the information to another unit without expressly stating that the delivering unit obtained the information via a wiretap.

     The receiving unit is therefore given both the specific information gathered through the wiretap and the critical instruction to "investigate" the conduct, i.e., to arrive at the crime scene and, rather than make an arrest, observe the illicit conduct in order to obtain "independent" probable cause. Upon obtaining this "independent" probable cause, the receiving unit either makes an immediate arrest, or obtains a search warrant on the sole basis of the so-called "independent" probable cause. Those arrested are then prosecuted without ever knowing that the were subjected to wiretap surveillance, as no mention of the wiretap is made in police reports, through any discovery disclosures, or by any testifying detectives at hearings or at trial.

     Convictions may follow, but the very existence of the wiretap remains concealed from the accused, in order to permit the survival of any pending investigations revolving around the wiretap.

     This means, the trial court pointed out, that the accused is never able to challenge the affidavit, the wiretap order, or the wiretap itself, despite the fact that these are the investigative mechanisms out of which the prosecution originated.

Thus, the "hand off" procedure magically erases from the record the very existence of the wiretapping search, and the accused is prosecuted as if the search never occurred.

     The federal trial court ruled that the wiretapping "hand off" procedure was "per se unconstitutional." It stated that this was evidently a question of "first impression," as the issue of whether the procedure is constitutionally permissible "seems to have never been decided. The court found that the procedure essentially nullified the Fourth Amendment probable cause requirement by concealing the existence of the underlying affidavit and wiretap order, and therefore constituted an unreasonable search and seizure, as well as violating the notice requirements of the federal wiretapping statute, 18 U.S.C. Sec. 2518(8)(d).

     It also found, however, that the individual defendants were entitled to qualified immunity on any federal claims for money damages since the unconstitutionality of their actions in concealing the existence of the wiretaps was not clearly established at the time of the activity. Additionally, the court rejected any claim for municipal liability, as the "hand off" procedure, it found, did not amount to a governmental policy or custom reflecting a deliberate indifference to the constitutional rights of the plaintiffs, since the defendants genuinely believed that the procedure was constitutional.

     The court ruled that a number of the plaintiffs were entitled to trial on state law claims against the defendants, however.

     Whitaker v. Garcetti, 291 F. Supp. 2d 1132 (C.D. Cal. 2003).

     » Click here to read the text of the opinion on the AELE website.

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Assault and Battery: Handcuffs

     Arrestee's claim that his wrists were "sore," although uninjured, following his allegedly tight handcuffing, was not objectively sufficient for a federal civil rights claim for excessive use of force. Wilder v. Village of Amityville, 288 F. Supp. 2d 341 (E.D.N.Y. 2003).

     Claim that deputy sheriff "violently handcuffed" arrestee, causing physical injury, and that there was no justification for his action, was sufficient to state a claim for excessive use of force. Mladek v. Day, 293 F. Supp. 3d 1297 (M.D. Ga. 2003).

Assault and Battery: Physical

     Arrestee who claimed officers had used excessive force in arresting him following a traffic stop was not entitled to a reversal in his appeal of a jury verdict in favor of the defendant officers when he failed to point to any evidentiary or other legal rulings by the trial court that might have caused a reversible error. McIntosh v. Green, No. 03-6038, 82 Fed. Appx. 654 (10th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Arrestee awarded $5,000 on excessive force claim, $5,200 for severe emotional distress, and $25,000 in punitive damages, as well as pre-judgment interest of $31,031 was a prevailing party in his lawsuit against arresting officer, and therefore, rejection of his motion for attorneys' fees was improper in the absence of any special circumstances justifying a complete denial of such fees. Further proceedings ordered by federal appeals court. Poy v. Boutselis, No. 03-1201, 352 F.3d 479 (1st Cir. 2003).

Defenses: Notice of Claims

     New York state notice of claims statute, while applying to state law claims against police officers and police chief, did not apply to federal civil rights claims, and therefore the alleged failure to comply with the statute did not bar the plaintiff's federal civil rights claims. Ahern v. Neve, 285 F. Supp. 2d 317 (E.D.N.Y. 2003).  

Defenses: Official Immunity

     Police officers' decision to make a warrantless arrest of an elementary school principal for allegedly obstructing an officer by hindering an arrest of two students for fighting was a discretionary action under Georgia law, entitling them to official immunity from liability for false arrest, false imprisonment, or malicious prosecution, so long as the plaintiff could produce no evidence that her arrest had been the result of malice or an intent to injure her by the officers. Reed v. DeKalb County, No. A03A1083, 589 S.E.2d 584 (Ga. App. 2003).   

Defenses: Statute of Limitations

     Statute of limitations barred defamation claims brought by grand jury witness against deputy district attorney and county based on statements made to author of book allegedly falsely describing her as a "felony probationer." The time within which to bring the defamation lawsuit started to run, at the latest, when the book was published and distributed to the public, and was not extended based on the fact that the plaintiff allegedly did not discover that the material was in the book until she subsequently read it. Shively v. Bozanich, No. S094467, 7 Cal. Rptr. 3d 576, 80 P.3d 676 (Cal. 2003).[PDF]

Dogs

     Police dog's biting of bystander rather than pursued car theft suspect was not the result of any municipal policy or custom. No liability for city for alleged violation of bystander's federal civil rights. Roddy v. Canine Officer, 293 F. Supp. 2d 906 (S.D. Ind. 2003).

Expert Witnesses

     Trial court was not required to make a detailed analysis of the reliability of psychiatric expert testimony, and it could take judicial notice of the admissibility of expert testimony in "well-known areas" of accepted expertise, such as psychiatry. Psychiatrist's testimony, therefore, that an arrestee falsified or exaggerated some of her symptoms stemming from force used during her arrest was admissible. Judgment in favor of defendant city and officers upheld. Samaniego v. City of Kodiak, No. S-10378, 80 P.3d 216 (Alaska 2003).

False Arrest/Imprisonment: Warrant

     FBI agent was not required to obtain a search warrant for a residence in addition to an arrest warrant for a suspect reasonably believed to be an occupant in order to enter a dwelling. Tyson v. Willauer, 289 F. Supp. 2d 190 (D. Conn. 2003).

Family Relationships

     Parents and siblings of adult allegedly killed by bullet from a pistol that had been in the possession of a police officer could assert a claim under New Mexico law for loss of consortium, and could recover damages if they could demonstrate that their relationships with the decedent were sufficiently close, financially or socially, so that it was foreseeable that an injury to the decedent would also harm them. Fitzjerrell v. City of Gallup, #22,119, 79 P.3d 836 (N.M. App. 2003).

     Father of adult son, in the absence of evidence that son was not emancipated, could not recover damages for violation of his parental liberty interest in son's companionship in lawsuit against city and police officers who allegedly shot and killed son. Federal appeals court, overturning prior lower court decisions in the Third Circuit, holds that the due process clause of the Fourteenth Amendment does not extent to a parent's interest in the companionship of an independent adult child. McCurdy v. Dodd, No. 02-2708, 352 F.3d 820 (3rd Cir. 2003). [PDF]

Firearms Related: Intentional Use

     Officers had a reasonable belief that a man posed an imminent risk to their lives and the lives of commuters when he boarded a train dressed in army fatigues with a mask over his nose while carrying a wooden staff and military sword. Officers did not use excessive force in spraying him with pepper spray and shooting him without killing him after he refused to obey their orders to put the staff down and leave the train. Stevens v. Metropolitan Transportation Authority Police Department, 293 F. Supp. 2d 415 (S.D.N.Y. 2003).

Governmental Liability: Policy/Custom

     An African-American lesbian failed to state a claim against city based on alleged conspiracy by police officers to intimidate her into refraining from filing a cross-complaint against her former lover in a criminal trespass case. She claimed that a police detective she spoke to made offensive remarks about lesbians and subsequently called her at home to ask her out on a date. There was no showing that the alleged conduct, even if it took place, happened as the result of any municipal policy or custom discriminating against her on the basis of her gender or sexual orientation. Smith v. City of New York, 290 F. Supp. 2d 317 (E.D.N.Y. 2003).

Insurance

     Insurance policy issued to city for public officials and employment practices liability did not provide coverage for claims that city and police officers intentionally violated federally protected civil rights of African-American citizens. Coverage was barred under both "deliberate act" exclusion and "law enforcement" exclusion stated in the terms of the policy. Clarendon National Insurance Company v. City of York, Pennsylvania, 290 F. Supp. 2d 500 (M.D. Pa. 2003).

     County's purchase of liability insurance on vehicle used by sheriff's deputy in high-speed chase waived any defense of sovereign immunity on claims asserted by motorist for injuries to herself and her daughter when struck by vehicle deputy was pursuing. Summary judgment was still properly entered for deputy, however, as plaintiff failed to show that deputy acted in reckless disregard of proper procedure during the pursuit. Standard v. Hobbs, 589 S.E.2d 634 (Ga. App. 2003).

Malicious Prosecution

     Police officers' alleged withholding from prosecutors of the fact that the arrestee had provided his identification to them when they requested it was insufficient to constitute the suppression of exculpatory evidence. Arrestee himself had that information. Further, this fact was only related to the issue of whether the arrest was proper and was irrelevant to the arrestee's conviction on extortion, racketeering, and firearms charges, and therefore irrelevant for purposes of his malicious prosecution claim. Summary judgment entered for defendant officers. Ienco v. Angarone, 291 F. Supp. 2d 755 (N.D. Ill. 2003).

Negligence: Vehicle Related

     Introduction into evidence, in lawsuit against sheriff's department for injuries arising out of collision of his squad car with another motorist's vehicle, of motorist's conviction for failing to yield to an emergency vehicle was prejudicial, requiring a new trial. Injured motorist, despite violating a motor vehicle safety statute, still might have acted as a reasonably prudent person would act under the circumstances, and the introduction of evidence that another court had already decided that the plaintiff violated the statute "usurped" the jury's function in the personal injury lawsuit. Lepucki v. Lake County Sheriff's Department, No. 45A03-0212-CV-439, 801 N.E.2d 636 (Ind. App. 2003).

Police Plaintiff: Premises Liability

     Officer who was injured from a slip and fall allegedly caused by cracked and unstable marble step in building's common stairwell was properly awarded $400,000 in damages against the building owner by a jury. Evidence showed that the defect in the stair had been there for an "appreciable length of time" prior to the injury, demonstrating "culpable negligence" by the building owner.     O'Neill v. Julav Realty, Ltd., 769 N.Y.S.2d 223 (A.D. 1st Dept. 2003).

Police Plaintiff: Vehicle Related

     Police officer injured by northbound vehicle when he attempted to make a U-turn to pursue a southbound vehicle had no claim for his injuries on the basis of negligence against the driver of either the southbound or northbound vehicles. Northbound vehicle's driver did not act negligently in attempting to proceed past the officer's car before he made a U-turn, and the alleged reckless driving of the southbound motorist was not the proximate cause of the officer's injuries. Officer might, however, be able to make out a claim against the southbound vehicle's driver on the basis of his reckless driving for which he was convicted of a statutory violation. Under New York General Municipal Law Sec. 205-e, proof of such a violation, if it directly or indirectly caused harm to the officer might be the basis of liability, a standard of proof less than common-law negligence. Aldrich v. Sampier, 769 N.Y.S.2d 338 (A.D. 3d Dept. 2003). [PDF]

Privacy

     Motorist asserted a claim for violation of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, after police officer who pulled her over obtained private information from vehicle licensing records concerning her and her husband, allegedly without a permissible purpose for doing so, since he had no probable cause or reasonable suspicion to "run the plate" of the vehicle. Luparello v. Incorporated Village of Garden City, 290 F. Supp. 2d 341 (E.D.N.Y. 2003).

Procedural: Class Action

     Federal trial court declines to certify class action on behalf of former arrestees in homicide cases who were detained, never charged, and then released. In case claiming that city has a long-standing policy of making arrests without probable cause in homicide cases, court finds that proposed class did not meet the requirement that questions of law or fact common to members of the class predominate over issues affecting only individual members or that a class action is a superior method for the fair and efficient resolving of the claims. Abby v. City of Detroit, 218 F.R.D. 544 (E.D. Mich. 2003).

Procedural: Evidence

     Plaintiff who was shot by police officer could not withhold his medical records in a federal civil rights lawsuit against the city and officer on the basis of doctor-patient privilege or medical records privilege, nor could he assert the right of privacy based on a provision of the California state constitution to prevent the disclosure of those records. The plaintiff, who claimed that he was shot in the back because the officer was in poor physical condition and was therefore unable to pursue him on foot, was also entitled in the case to the disclosure of the officer's medical records, including those in a workers' compensation file. Hutton v. City of Martinez, 219 F.R.D. 164 (N.D. Cal. 2003).

Racial Discrimination

     African-American plaintiff's claim that officers discriminated against her by not investigating threats against her or arresting the person who made the threats because of her race and her prior lawsuit against the city was sufficient to state a claim for violation of the right to equal protection of law. Farrar v. City of Chicago, 291 F. Supp. 2d 747 (N.D. Ill. 2003).

Search and Seizure: Vehicle

     Police had probable cause to conduct a warrantless search of the trunk of a city-owned motor vehicle being used by a fire department employee based on information obtained by a confidential informant that the employee had unlawfully been collecting absentee ballots at a house party and had placed a bag of them in the trunk of his city vehicle. Luellen v. City of East Chicago, #02-3188, 350 F.3d 604 (7th Cir. 2003). [PDF]

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

     Article: "Educating and Training the Future Police Officer," by Michael Buerger, Associate Professor of Criminal Justice, Bowling Green State University in Ohio, 73 FBI Law Enforcement Bulletin, No. 1, pgs. 26-32 (January 2004). [PDF] "The future challenges facing the law enforcement professional can spark the integration of academic study and on-the-job training and experience that will culminate in improved service to the public." Also available in .html format.

     Article: "When an Informant’s Tip Gives Officers Probable Cause to Arrest Drug Traffickers," By Edward M. Hendrie, J.D., Special Agent, DEA Legal Unit, Legal Instructor DEA Training Academy, 72 FBI Law Enforcement Bulletin, No. 12, pgs. 8-21 (December 2003). [PDF] "The degree of corroboration necessary for officers to establish probable cause depends on the informant’s credibility and basis of knowledge." Also available in .html format.

     Publication: Forensic Science Communications is a peer-reviewed forensic science journal published quarterly in January, April, July, and October by FBI Laboratory personnel. It is a means of communication between forensic scientists. The current issue can be found online here. Back issues from 1999 to the present are also available on line.

     Report: The National Institute of Justice (NIJ) presents "Report to the Attorney General on Delays in Forensic DNA Analysis", March 2003, which presents the results of a task force convened by NIJ at the request of Attorney General John Ashcroft to assess existing DNA analysis delays and to develop recommendations for eliminating those delays. The report details six recommendations that will serve as the foundation of a comprehensive, national DNA backlog-reduction strategy. This publication is available electronically at http://www.ojp.usdoj.gov/nij/pubs-sum/199425.htm or by contacting the National Criminal Justice Reference Service at 800-851-3420.

     Report: "Problem Analysis in Policing" introduces and defines problem analysis and provides guidance on how problem analysis can be integrated and institutionalized into modern policing practices. The 64-page report is not a how-to guide on conducting problem analysis, but is a summary of what problem analysis is; what skills and knowledge are necessary to conduct it; and how it can be advanced by the law enforcement community, academia, the federal government, and other institutions. The ideas and recommendations in this report come primarily from a 2-day forum conducted in February 2002 by the Police Foundation and the Office of Community Oriented Policing Services (COPS) that brought a group of academics, practitioners, and policy makers together to discuss problem analysis and make recommendations for its progress. This report is a culmination of the concepts and ideas discussed in the forum and includes specific, relevant statements made by participants. This publication is only available electronically at http://www.cops.usdoj.gov/default.asp?Open=True&Item=847.

     Report: "Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act" (January 27, 2004) U.S. Department of Justice, Office of the Inspector General. HTML PDF The latest in a series of reports by the office, which is mandated by Congress in Section 1001 of the USA PATRIOT Act to review information and receive complaints alleging abuses of civil rights and civil liberties by employees and officials of the Department of Justice.

     Statistics: "Crime and the Nation's Households," 2002 Presents findings for crimes, including vandalism and intimate partner violence. Data are presented by region, by urban, suburban or rural location and by household size. Overall trends since 1994 are also included. Highlights include the following: In 2002 a violent crime against a person age 12 or older occurred in 3% of U.S. households. In both 1994 and 2002, less than 1% of households included a member victimized by an intimate partner. About 5% of households were vandalized at least once during 2002. U.S. Department of Justice · Office of Justice Programs Bureau of Justice Statistics 02/04 NCJ 201797 Acrobat file (255K) [PDF] | ASCII file (10K) Spreadsheets (zip format 16K)

     Statistics: "Statistical Abstract of the United States 2003 Edition," U.S. Census Bureau (1030 pgs. Feb. 12. 2004). [PDF] (2001 and 2002 Editions also available online at the same location). 1995-2000 Editions. To order a print copy of the 2003 edition, click here.

     Reference:

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

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