CONTENTS

Officers acted reasonably in using pepper spray in an attempt to subdue an emotionally disturbed suicidal man who was armed with an axe and had previously taken hostages, and in shooting and killing him when he responded to the pepper spray by lifting the axe and running towards them.

     An emotionally disturbed and suicidal 33-year-old man entered a liquor store armed with an axe and took two employees hostage, subsequently releasing one and unintentionally allowing the second to escape. Officers entered the store, and used pepper spray against the man after he ignored their continuous requests to put down the axe. The man, who had just stated that he was going "to die today," responded to the pepper spray not as the officers hoped, by dropping to the ground, but rather by raising the axe and running towards the two officers. They then shot and killed the man.

     His mother and estate sued the town, the police chief, several officers and other defendants in federal court, asserting both civil rights claims for excessive use of force and state law claims for wrongful death. Among other claims, the plaintiffs argued that the decision to use the pepper spray under the circumstances was a "colossal misjudgment, resulting in a needless and wrongful death."

     Upholding a trial court's grant of judgment for the defendants as a matter of law, a federal appeals court found that the police officers acted in an objectively reasonable manner in using the pepper spray in an attempt to subdue the man, in light of his being armed, having taken hostages, seemed suicidal, and had refused to comply with requests to put down his dangerous weapon, the axe.

     In addition to finding no liability for violation of civil rights, the appeals court rejected the argument that the officers were liable for wrongful death under Rhode Island law because the use of pepper spray violated the police department's use of force policy, since that police actually gave the officers "significant discretion" to exercise their judgment in using the pepper spray. Indeed the policy itself stated that chemical substances could be used to subdue a person who resists arrest or to protect an officer or other person from an assault.

     Isom v. Town of Warren, No. 03-1765, 360 F.3d 7 (1st Cir. 2004).

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

     •Return to the Contents menu.

Officer was improperly granted summary judgment on the basis of qualified immunity on claim that he used excessive force in the course of handcuffing suspect arrested under "rather benign circumstances," when a reasonable officer would know that this violates the Fourth Amendment.

     A Pennsylvania man was arrested for disorderly conduct after refusing to supply an officer with his name and address for a report that the officer wanted to file in lieu of charging him and his girlfriend with trespassing on a frozen lake at an apartment complex. The officer handcuffed the arrestee behind his back, and approximately ten seconds later, the arrestee began to lose feeling in his right hand and asked the officer to loosen the handcuffs.

     The officer allegedly did not do so and did not reply to the arrestee's question whether this is what he does "when people don't give him information." The arrestee was left alongside the officer's car while the officer walked away to interview his girlfriend. The arrestee claimed that the pain had become unbearable, and allegedly repeated his request for the cuffs to be loosened in light of the loss of feeling in his right hand, and began to faint from the pain, falling to the ground. The arrestee claimed that it took the officer approximately ten minutes to finally loosen the cuffs.

     He subsequently claimed to have permanent nerve damage in his right hand as a result of the handcuffing, and to have needed treatment from a hand surgeon for over a year. The arrestee sued the officer for excessive force for failing to quickly loosen the handcuffs, conceding both that he was trespassing, and that the arrest and handcuffing itself was lawful.

     The trial court granted the officer summary judgment on the basis of qualified immunity. Overturning this result, a federal appeals court has ruled that qualified immunity was improper under the circumstances, as a reasonable officer would have known that the placing of handcuffs on an arrestee in a manner which made them excessively tight, and failing to respond to requests to loosen them would violate the Fourth Amendment, "even though it appears that neither the Supreme Court nor this court has ruled that a police officer may be using constitutionally excessive force in tightening handcuffs."

     The appeals court stated that the officer faced "rather benign circumstances that hardly justified his failure to respond more promptly" to the arrestee's "entreaties, at least to the extent to ascertain if the handcuffs were too tight." The officer was:

not, after all, in the midst of a dangerous situation involving a serious crime or armed criminals. Accordingly, this opinion should not be over-read as we do not intend to open the floodgates to a torrent of handcuff claims. Thus, if Officer Tate had been engaged in apprehending other persons or other imperative matters when [the arrestee] asked him to loosen the handcuffs our result might be different.

     Kopec v. Tate, No. 02-4188, 361 F.3d 772 (3d Cir. 2004).

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

     •Return to the Contents menu.

City was not liable, under Florida law, for man's shooting of his wife, despite alleged negligent failure of officer to follow-up on promise to "talk" to the shooter about his alleged threat to her. Officer's failure to act was not the cause of the injuries, and no special relationship existed which would waive governmental immunity for the officer's conduct.

     An estranged husband in Florida called his wife's sister and made a statement that was interpreted as a threat to kill his wife, her boyfriend, and the couple's children. The wife, learning of this, notified the police. An officer responding to her call specifically stated that he was going to go talk to the husband or send someone to talk to him. The wife allegedly believed that this was have a deterring effect because police contact had "defused" the situation during several past domestic disputes with her husband.

     The officer filed a report, but took no further action, and did not talk to the husband. The husband, approximately two days later, fired a shot towards his wife's adult son, who had just had a physical fight with him, and the bullet struck the wife in the face, causing severe and permanent injuries. She sued the city, alleging negligence for the failure of the officer to locate and talk to her husband, as he had promised, claiming that this caused her injuries. A jury found the city 15% negligent and the plaintiff 85% negligent, and the trial court denied a motion to set aside the jury verdict.

     An intermediate Florida appeals court reversed the decision, and found that the city could not be held liable, under the circumstances, for the shooting.

     The plaintiff could not have reasonably relied on the officer's promise, the court reasoned, as she did learn, prior to the shooting incident, that there had been no police contact, and she did not act concerned for her safety when she learned this. Further, the injury to her did not result from her reliance on the officer's promise to talk to her husband. The plaintiff took no further steps to seek police intervention or protection when she learned that no such contact had taken place.

     Additionally, a physical fight with a third person had preceded the shooting, and served as a "superseding and intervening cause" of the plaintiff's injuries.

     The appeals court found that the officer's mere promise to "talk to" the husband did not establish a special relationship which was sufficient to waive governmental immunity under Florida law for the officer's conduct.

     "The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience," the appeals court stated, and ordered a directed verdict entered for the city.

     City of Ocala v. Graham, No.5D02-3208, 864 So. 2d 473 (Fla. App. Dist. 5 2004).

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

     •Return to the Contents menu.

Motorists from New York and surrounding states could not pursue claims for false arrest on the basis of the alleged failure of the state Department of Motor Vehicles to adequately keep track of motorist's changes of address, so that they were allegedly unaware that their drivers' licenses had been suspended.

     Ten motorists from New York, New Jersey and Pennsylvania, who were arrested in New York between 2001 and 2003 for driving with suspended licenses in violation of state law, filed a lawsuit against the city for false arrest and violation of their constitutional rights.

     They claimed that they were unaware that their licenses were suspended and that they were arrested because the arresting officer, in accordance with the practice of the city of New York's police department, relied entirely on the records of the New York State Department of Motor Vehicles (DMV) showing that the plaintiffs' licenses had been suspended.

     The plaintiffs all claimed that the indication in the records that their licenses had been suspended was an insufficient basis for arresting them for knowingly driving on suspended licenses, since the records did not show that they had received actual notice of the suspension, and that the DMV failed to take the steps that were necessary to provide such notice in a manner reasonably calculated to reach the plaintiffs. In particularly, they claimed that the DMV inadequately kept track of motorists' changes of address. Their lawsuit sought both damages and injunctive relief.

     The trial court granted summary judgment for the defendants. It noted that the sending of notice by mail is ordinarily sufficient to comply with due process. It further noted that the state's law placed the burden on the motorists themselves of keeping the state aware of address changes. The court rejected the notion that the state somehow had a constitutional obligation to "initiate some independent or supplemental inquiry of its own" as to the current address of motorists who were being sent notices of license suspension.

     Further, even if the DMV's procedures for updating computer records and notifying motorists of license suspensions were somehow defective, the plaintiff motorists had not shown that the officers knew this. The officers, therefore, had probable cause for the arrests, and had every reason to believe that the motorists had properly been sent notices of their license suspensions.

     McGuire v. City of New York, 301 F. Supp. 2d 333 (S.D.N.Y. 2004).

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

     •Return to the Contents menu.

Trial court should not have dismissed civil rights claim by man arrested for the second time on the same warrant, since the facts alleged would have supported a conclusion that the officers acted unreasonably by failing to check on the warrant when confronted with the possibility that it might no longer be valid.

     A man in Puerto Rico was arrested on a valid arrest warrant, and released later that day after posting a $300 bond. Almost six weeks later, he was awakened in his home in the middle of the night and arrested again by officers carrying a warrant that was identical to the warrant used before, but no longer active because of its prior execution. The officers took him into custody despite his objections that it was a mistake, and his display to them of documents showing the earlier arrest and release. He was taken to police headquarters and released later that morning.

     He sued, alleging a violation of his civil rights, and the federal trial court reversed, rejecting the argument that the plaintiff's complaint failed to state a claim for violation of the Fourth Amendment, or that the alleged actions by the officers were, at most, negligence which could not be the basis for a constitutional claim.

     The arrestee was able to show the officers who arrested him in his home a copy of the executed arrest warrant and a receipt for the bond that he had posted to be released on bail. The warrant was identical to the one possessed by the officers, but bore a stamp showing that it had been executed.

Despite facially authentic documentary evidence that the warrant was no longer effective, and with knowledge that they had failed to follow precautionary procedures to assure its vitality, the officers persisted with appellant's arrest and detention. If any doubts remained after appellant displayed the stamped warrant, a quick phone call to the precinct presumably would have resolved them. While the officers arguably were simply negligent in failing to check on the warrant before they acted on it, following through on the arrest and detention once confronted with appellant's documents reflected a much more deliberate disregard for whether the warrant remained valid. We thus conclude that the complaint's allegations would support a jury conclusion that defendants acted unreasonably in arresting appellant and taking him into custody.

     This failure to change direction when confronted with the documentary evidence, the court found, distinguished the case from the mistaken identity setting of Baker v. McCollan, 443 U.S. 137 (1979), cited by the district court. In that case, the U.S. Supreme Court found no constitutional claim was stated where the plaintiff was arrested on a valid warrant that was issued in his name but intended for his brother. While officers may not be required to conduct an independent investigation simply because an arrestee claims that the arrest was a mistake or improper, in this case, no independent investigation was arguably required. The arrestee "did not simply assert a mistake, but also provided substantiation."

     If the officers pursued the plaintiff's arrest and incarceration in the face of "unambiguous evidence that their warrant was unenforceable," the appeals court concluded, "in our view, such a seizure could be objectively unreasonable and a violation of appellant's clearly established Fourth Amendment rights," so that if these alleged facts were true, the officers were not entitled to qualified immunity.

     Pena-Borrero v. Estremeda, No. 03-1084, 2004 U.S. App. Lexis 6949 (1st Cir. 2004).

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

     •Return to the Contents menu.

FBI agent who allegedly knowingly caused the arrest of the wrong man through the use of a facially valid warrant intended for the arrest of his brother was not entitled to qualified immunity.

     An FBI agent was assigned to assist with a nationwide search for a federal fugitive by finding and interviewing his brother. When he located the brother, the brother "angrily declined" to speak with him. The agent then allegedly obtained a copy of an outstanding Florida arrest warrant for "Christopher Lee," one of the fugitive's known alias. The fugitive had appropriated the brother's middle name, social security number and birthday for purposes of this alias. The agent passed the warrant to the San Diego Sheriff's Office, which arrested the brother, releasing him on bail four days later.

     The arrested brother sued the agent for alleged violations of his Fourth Amendment rights, and the trial court denied the agent's motion for qualified immunity.

     The agent argued that he did not violate the brother's constitutional rights because he had probable cause to arrest the brother and that no clearly established law prohibited him from executing a facially valid warrant. The trial court had found that there were disputed issues of material fact as to what information the agent gave to the San Diego Sheriff's Office in turning over the warrant, and more importantly, as to whether the agent actually knew that the warrant did not apply to the brother.

     A federal appeals court has upheld that result.

     If, as alleged, the FBI agent knowingly used the warrant, understanding that it was intended for the arrest of the fugitive, to cause the arrest of the wrong man, the brother, in order to attempt to obtain information about the fugitive, that would violate clearly established law.

     What would render the arrest caused unlawful, the court noted, was not the agent's motive of "squeezing" the brother for information about the fugitive, but rather his claimed knowledge that the brother was not the person named in the Florida arrest warrant.

     "Knowingly arresting the wrong man pursuant to a facially valid warrant issued for someone else violates rights guaranteed by the Fourth Amendment."

     Lee v. Gregory, No. 02-57132, 2004 U.S. App. Lexis 6648 (9th Cir. 2004).

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

     •Return to the Contents menu.

Police department forensic chemist could be sued for malicious prosecution for allegedly withholding exculpatory evidence and fabricating inculpatory evidence, even if she did not initiate the prosecution or make the decision to continue it. She was not entitled to qualified immunity in lawsuit brought by man who spent fifteen years in prison for a rape that DNA evidence now shows he did not commit.

     An Oklahoma man was convicted of rape and spent fifteen years in prison before his conviction and sentence were overturned on the basis of DNA analysis which showed that he could not have been the source of the semen found on the rape victim. He subsequently filed a federal civil rights lawsuit against a police department forensic chemist who had worked on the case prior to his prosecution and conviction, asserting a claim for malicious prosecution.

     A federal appeals court has upheld the trial court's refusal to grant the defendant chemist's motion to dismiss the lawsuit on the basis that she had neither initiated nor filed the criminal charges against the plaintiff.

     The appeals court found that this did not preclude a claim for malicious prosecution, nor did the fact that it was arguable that probable cause had existed for the plaintiff's arrest by the police department.

      If, as the plaintiff claimed, the chemist, in the course of doing tests she was asked to do in relationship to evidence in the case had withheld exculpatory evidence and fabricated inculpatory evidence, and this evidence became one of the "inseparable bases" for the charges and the prosecutor's decision to proceed with the prosecution, she could be held liable for damages.

     The appeals court also rejected the argument that the chemist was entitled to qualified immunity, finding that an official in her position in 1986 would have had "fair warning" that deliberately or recklessly falsifying or omitting evidence related to a criminal investigation was a violation of constitutional rights, even when the plaintiff's arrest had already then occurred.

There is no moral, constitutional, common law, or common sense difference between providing phony evidence in support of an arrest and providing phony evidence in support of continued confinement and prosecution.

     Qualified immunity, the appeals court noted, is designed to protect public officials "who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms." Here, the chemist's alleged misconduct "did not stem from a miscalculation of her constitutional duties, nor was it undertaken in furtherance of legitimate public purposes that went awry." Instead, it was claimed that she engaged in a deliberate attempt to ensure the prosecution and conviction of an innocent man, conduct which, if proven, violated the plaintiff's constitutional rights with "obvious clarity."

     Pierce v. Gilchrist, No. 02-6241, 359 F.3d 1279 (10th Cir. 2004).

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

     •Return to the Contents menu.

Officer's claims for personal injuries she suffered while participating in a certified training course were barred, in California, under firefighter's rule and her assumption of the risk that she would be injured.

     A California probation corrections officer and peace officer was required to participate in an “Unarmed Defensive Tactics” (UDT) training course as condition of her employment. The certified training course was conducted by an instructor on behalf of a private company. The officer allegedly suffered injuries to her neck and back while performing a training maneuver, and as a result is no longer able to work as an officer.

     She sued the training company and its instructor for damages, asserting claims for negligence and intentional injury.

     A California trial court concluded that the doctrine of primary assumption of risk barred plaintiff’s negligence and intentional injury claims and that Civil Code section 1714.9, which sets forth specific exceptions to the firefighter’s rule, did not apply. It found “the undisputed facts establish that defendant[s] performed a training maneuver on plaintiff, and not an attack. Thus, the burden shifts to plaintiff to show that the maneuver was so violent or dangerous as to be outside the category of the training exercise. This she has failed to do. There is no evidence that defendant[s] exceeded the boundaries of the normal risks associated with this type of training. Plaintiff’s assertions to the contrary do not rise to the level of creating a triable issue of fact.”

     An intermediate California appeals court agreed.

We conclude that plaintiff assumed the risk of her injuries by participating in the UDT training course. We find no triable issue of material fact that defendants increased the risk of harm to plaintiff in performing the training maneuver, or intentionally caused plaintiff’s injuries. We further conclude that the firefighter’s rule also bars plaintiff’s claims, and that none of its exceptions apply.

      The court noted that the officer's job duties included restraining "some violent juvenile offenders," which her training in the use of unarmed defensive tactics would enable her to perform. The court held that "under the doctrine of primary assumption of risk and the firefighter’s rule, no duty is owed to a peace officer who is engaged in training to meet an emergency situation."

     The Plaintiff was injured in the UDT training course while she performed a maneuver called “reversal on stomach and choking officer” or “officer on stomach with arm-bar choke.” The maneuver was designed to teach plaintiff to extricate herself if she was attacked, landed on her stomach, and was being choked by an assailant straddling her back. The instructor played the role of the attacker. In the course of the exercise, the Plaintiff felt pain in her neck when she stood up. She suffered “disabling physical injuries to her back and neck, including a herniated disc of the cervical spine.”

     Hamilton v. Martinelli & Assoc., #E031683, 110 Cal.App.4th 1012, 2 Cal.Rptr.3d 168, 2003 Cal. App. Lexis 1114 (4th App. Dist. 2003).

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

     •Return to the Contents menu.

911 operator was not liable for man's murder of his wife and daughter based on classification of call by daughter as a family violence situation rather than a child injury in progress call. No violation of equal protection or due process was shown, and operator was entitled to qualified immunity.

     A father in El Paso, Texas murdered his wife and fifteen-year-old daughter. The girl's grandmother filed a federal civil rights lawsuit on behalf of the decedents' estates against the city and the 911 operator who allegedly mishandled an emergency call made by the daughter seeking assistance.

     The lawsuit asserted claims for violation of equal protection and due process, and the trial court denied the 911 operator's motion for summary judgment on the basis of qualified immunity.

     A federal appeals court disagreed, finding that the plaintiff failed to state a claim for violation of clearly established equal protection or due process rights against the 911 operated, and ordered the entry of a judgment in her favor.

     The daughter had called 911 and reported that her father was drunk and was becoming physically and verbally abusive to her and her mother. Police were dispatched and the father was arrested and charged with felony child injury. A number of months later, the daughter called 911 again.

     During this call, the daughter told the 911 operator that her father had threatened her and that she was afraid for her life and hiding in a bathroom but did not indicate that she had been physically abused. She allegedly repeatedly asked the operator to "send the police" to her house, to which the operator responded that the police "were receiving the information" that she was placing into the 911 system.

     At one point, the daughter informed the operator that she believed her father had left the premises, and the operator then requested information about his auto and potential destination. Before disconnecting, the operator allegedly informed the daughter that the police would be sent out.

     The operator, while entering the information from the call into the dispatch computer, allegedly did not include the daughter's statements that she feared for her life or the prior report of the father's domestic violence. Based on the family relationship between the daughter and her father and the operator's understanding of the situation, the operator coded the call a "family violence assault," a priority level 4 call. The entries led a police dispatch operator to send out two general broadcasts regarding the incident.

     No police units immediately responded, and soon thereafter, Herrera, who had not actually left the house, shot and killed his wife and daughter.

     The federal appeals court found that the plaintiff's equal protection claim centered on the assertion that the operator improperly classified the daughter's call as a priority level 4 "family violence assault" call rather than a priority level 3 "injury to child in progress" call. The federal appeals court found no "statistical or even anecdotal" evidence in the record that female victims of domestic violence were "systematically shortchanged or deprived of effective law enforcement response" by the city's 911 policies.

     Further, the plaintiff failed to show that the City of El Paso assigned a lower level priority to 911 family violence assault calls "as the result of an effort to discriminate against women." The plaintiff pointed to a question the operator asked during the call as to whether it was the daughter's "husband or her boyfriend that was threatening her," and during her deposition, the operator suggested that had there been no family relationship between the daughter and her assailant, she might have been able to use the injury to a child in progress code which had higher priority.

     This, however, the court found was "better understood as an eminently reasonable question that an emergency operator might ask to assess the situation at hand, rather than an attempt to discriminate" against the daughter or her mother based on their relationship to the attacker. Further, the operator's statement that she "could" have used the injury to a child in progress code had there been no family relationship does not imply that she would have done so, as the transcript of the call indicates that at the time, the daughter's father had not "yet actually physically attacked her," and she was not necessarily in immediate danger of physical harm because she was hiding in a locked bathroom. The operator's questions could be viewed simply as an attempt to "gauge" the potential danger in the situation, rather than as showing discriminatory intent towards the caller.

     The court found that the plaintiff also provided no evidence that the police would have responded any more quickly if the operator had coded the call as an injury to a child in progress. "The lack of immediate police response to the family violence assault bulletin is not probable of whether the units would have responded more expeditiously to an injury to a child in progress call." And even if police would have responded more quickly to an injury to a child in progress call, there was no evidence that they would have arrived in time to save either of the murder victims, making it "difficult, if not impossible" to determine whether any police delay or inaction in response to the family violence assault bulletin was the cause of the deaths.

     Given this "dearth of evidence" of any equal protection rights, much less any "clearly established" equal protection rights, no such claim was stated.

     The appeals court also rejected the argument that the operator violated the daughter's substantive due process rights in "falsely promising" police services that the daughter relied on to her detriment. The operator offered advice to the daughter, but did not "affirmatively place" her in custody by restraining her in the bathroom. There was, the court found, no special relationship imposing a duty to provide protection.

     The appeals court found, therefore, that the general rule applied that a municipality has no duty to provide protection to a specific individual against private violence by third parties. The court therefore granted qualified immunity to the defendant operator.

     Beltran v. Amador, No. 03-50427, 2004 U.S. App. Lexis 7234 (5th Cir. 2004).

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

     •Return to the Contents menu.

Police officers were justified in making a warrantless entry into a home when they believed that there could be a woman inside who was "in trouble," and when two occupants of home, although they knew that a uniformed officer outside was seeking to speak with them, decided not to answer the door. Officers acted for the purpose of protecting the woman they believed was inside.

     A police officer received a phone call from a doctor asking him to check on the safety of his daughter, because he had been unable to reach her on the phone for several days and was "extremely concerned" about her safety and felt she could be "in trouble." He gave the officer a description of her car and the address of a residence where she was allegedly living as a roommate.

     The officer went to the home, and knocked and rang the doorbell, but received no reply. Unknown to the officer, both the daughter and her male roommate were home, but they were not responding. They knew that a uniformed police officer was at the door, but mistakenly and without substantial reason assumed that the male roommate's ex-wife had called the police and made a false accusation, so they decided to ignore the officer's attempt to speak with them.

     The officer observed that the daughter's car was in the driveway, and had police headquarters call her phone number. The two occupants inside ignored the phone call. The officer found an unlocked door to the garage and then once inside saw an unlocked door leading to the main part of the house. Fearing that a crime was in progress, he called for an additional officer. Both officers then entered the house through the garage, with their flashlights on and guns drawn.

     When they encountered the daughter, she identified herself, and produced identification after an argument about the officers not having a warrant. After confirming that she was safe, the officers left. Her male roommate filed a federal civil rights lawsuit claiming that his Fourth Amendment rights were violated by the officers entering his house without a warrant, and by them failing to knock and announce their presence.

     Upholding summary judgment for the defendant city and officers, a federal appeals court found that the warrantless entry into the home was justified by an "emergency aid" exception to the Fourth Amendment's warrant requirement. Under the circumstances, the officers had reason to believe that the woman sought was inside the house and that she might be in trouble. Their motivation in entering and searching the residence was not motivated by an attempt to arrest a particular person or to seize evidence, but to protect the woman.

     Further, on the knock and announce issue, the court noted that the occupants inside knew full well that there was a uniformed officer outside seeking to talk to them, and choose not to answer the door. Under the circumstances, the officers were entitled to qualified immunity.

     Martin v. City of Oceanside, No. 02-56177, 360 F.3d 1078 (9th Cir. 2004).

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

     •Return to the Contents menu.

No exigent circumstances existed sufficient to justify no-knock "dynamic entry" into home. Federal appeals court upholds $2 million jury verdict against officer on unlawful entry claim, as well as against sergeant and Board of Police Commissions on inadequate training claims.

     Kansas City police executed a warrant to search a man's home for drugs and other contraband one evening. They used a tactic called "dynamic entry," announcing their presence and purpose but entering the house without knocking and affording its occupants time to answer the door. One officer, serving as "ram officer," yelled "Police, search warrant," simultaneously hitting the front door with his ram, breaking in on the third hit. Another officer, as "point man," was the first officer to enter, and quickly moved through the living room, reaching the kitchen doorway, and saw the resident running toward him pointing a handgun.

      The officer stated that he yelled, "police, search warrant, get down," and fired, hitting the resident twice and inflicting serious injuries. The injured resident asserted claims against the "point man" officer for use of excessive force, against the "ram man" officer for illegal entry, and against a sergeant and the city's Board of Police Commissioners for failure to train officers regarding Fourth Amendment restrictions on no-knock entries and for deliberate indifference to a custom and practice of no-knock entries.

     The "ram man" testified that the sergeant had trained him always to ram the door at the same time as announcing a police presence, and that he had never been trained to knock, nor witnessed another officer knock and announce, before ramming the door.

      The resident testified that he had been asleep when he heard the ramming, and grabbed his pistol because he thought it was a break-in or a fight on his front porch. He claimed that he was bending to set his gun on the floor after realizing it was the police, when he was shot, and denied hearing an officer yell, "Police, search warrant, get down," before he was shot.

     A jury found in favor of the "point man" officer on the excessive force claim, but returned a verdict in excess of $2 million for the plaintiff on the illegal entry claim and failure to train claims against the sergeant and the Board. The trial court held, as a matter of law, before the case went to the jury, that the facts known to the police were not sufficient to support a reasonable belief that exigent circumstances justified the no-knock entry.

      A federal appeals court upheld the award.

      The knock-and-announce rule, the court noted, provides that, unless countervailing law enforcement interests are sufficient, officers executing a search warrant at a person's home must knock and announce their presence before entering. The officers can show a superseding interest by demonstrating a reasonable belief that the announcement would put them in danger, would be futile, or would inhibit effective investigation of the crime by allowing the destruction of evidence.

      The appeals court rejected the argument that exigent circumstances existed solely because there was a "safety factor" involved in raiding drug houses, since such houses contain violent armed people, and that, as the house was presumed to be a methamphetamine lab, he assumed the existence of lethal fumes from the chemicals used. The appeals court reasoned that this argument, if allowed, would lead to a per se exception to the knock-and-announce rule for methamphetamine labs.

     "To overcome that privacy expectation" protected by the knock-and-announce rule, the court stated, "the police interest should be specific to the individual and the place, not generalized to a class of crime."

     The type of crime can certainly be taken into account, the court said, "but in demonstrating a legitimate reason for disregarding the knock-and-announce rule, the police must provide an interest that is specific to the house they are searching and the person who lives there."

     In this case the officers had an anonymous uncorroborated tip that the residents of the house were buying and making methamphetamine, the uncorroborated statement that one of them had been arrested for illegal firearms possession, the uncorroborated statement that there were guns in the house, and drug residue in a trash bag found outside the home.

Had the police done even some investigation or surveillance they would have had a better understanding of whether the [residents] posed a security risk justifying a no-knock entry. Instead, they relied on very sketchy information, a reliance we find unreasonable, and outweighed by the private interest the Fourth Amendment is meant to protect.

     Doran v. Eckold, No. 03-1810, 2004 U.S. App. Lexis 6479 (8th Cir. 2004).

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

     •Return to the Contents menu.

U.S. Supreme Court finds that a search warrant which failed to describe the items to be seized during the search of a Montana ranch was "presumptively invalid," and that a federal agent who applied for the warrant and then led the raid executing it was not entitled to qualified immunity from liability, as the requirement in the Fourth Amendment that a warrant describe with particularity the "persons or things to be seized" is clearly stated.

     An ATF federal agent signed a search warrant application which sought permission to conduct a search of a Montana ranch for weapons, explosives, and records. The warrant was granted by a magistrate despite the fact that the warrant form section requiring a description of the "person or property" to be seized only described the house at the ranch, and did not list the weapons, explosives, or records being sought. Further, the warrant failed to incorporate by reference the detailed list of such items contained in the agent's application.

     When the search was conducted, the items sought were not found to be present at the ranch. The occupants of the ranch, who had been left with a copy of the warrant only, and not the application, filed a federal civil rights lawsuit claiming that the search violated their Fourth Amendment rights.

     The U.S. Supreme Court has held, in a 5-4 split decision, that the warrant was clearly and plainly unlawful, and that the defendant agent was not entitled to qualified immunity from liability, upholding the decision of the U.S. Court of Appeals for the Ninth Circuit.

     The Court majority found that the warrant was plainly invalid because it did not meet the Fourth Amendment's "unambiguous requirement" that a warrant "particularly describe ... the persons or things to be seized." The fact that the application adequately described those things does not save the warrant, the decision stated, as Fourth Amendment interests are not necessarily vindicated when another document says something about the objects of the search, but that document's contents are neither known to the person whose home is being searched nor available for inspection. The Court found it unnecessary to decided whether the Fourth Amendment permits a warrant to cross-reference other documents, since that did not happen in this case.

     The Court majority also rejected the agent's argument that the search was still reasonable. It found that since the warrant did not describe the items at all, it was so "obviously deficient" that the search must be regarded as warrantless, and was therefore "presumptively unreasonable."

     The majority of Justices--Stevens, O'Connor, Souter, Ginsburg, and Breyer--also found that the agent was not entitled to qualified immunity since "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Given the plain statement of the particularity requirement in the text of the Fourth Amendment, no reasonable officer could believe that a warrant that did not comply with that requirement was valid. Additionally, since the agent himself prepared the warrant, he could not argue that he reasonably relied on the magistrate's assurance that the warrant was valid and had an adequate description of the items to be searched for and seized.

     A strong dissent by Chief Justice Rehnquist, and Justices Kennedy, Thomas, and Scalia argued that despite the defective warrant, the search was reasonable, and that, in light of the "confused state of our Fourth Amendment jurisprudence and the reasonableness" of the agent's actions, "even if the Court were correct that this search violated the Constitution" the agent should be entitled to qualified immunity.

     Groh v. Ramirez, #02-811, 124 S. Ct. 1284 (2004).

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

     •Return to the Contents menu.

Defenses: Absolute Immunity

     Prosecutors were entitled to absolute immunity from liability for decision to prosecute town officials, regardless of whether they had a political motivation for doing so. Bernard v. County of Suffolk, #02-9313, 356 F.3d 495 (2nd Cir. 2004). [PDF]

Defenses: Duty to Defend

     A determination by a county attorney that a police officer was not entitled to a legal defense by the county in a lawsuit brought by his neighbor was not arbitrary and capricious. Officer did not act within the scope of his employment but rather in the capacity of a private property owner, in allegedly interfering with the neighbor's use of his adjoining property. Salino v. Cimino, 802 N.E.2d 1100 (N.Y. 2003).

Defenses: Governmental Immunity

     Texas statute, T.C.A. Civil Practice and Remedies Code Secs. 101.021(1) and 101.062(b), which states that Tort Claims Act applied to claims against public entities arising out of a volunteer's action in the course of providing 911 service or response only when the action violates a statute or ordinance did not unambiguously waive governmental immunity for such claims, but instead appeared to be intention to restrict liability of those responding to 911 calls rather than creating further liability. City of Dayton v. Gates, #09-03-310 CV, 126 S.W.3d 288 (Tex. App., Beaumont 2004).

Defenses: Notice of Claim

     Court had no alternative but to dismiss plaintiff's claims against city and police chief and officers, when she failed to comply with Florida state statute requiring notice of the claim before filing suit. Wagatha v. City of Satellite Beach, No. 5D03-1372, 865 So.2d 620 (Fla. App. 5th Dist. 2004). [PDF]

Defenses: Statute of Limitations

     Claims which accrued over four years ago based on Native American's arrest following a "prayer march" were barred by a Nebraska state statute of limitations. Poor Bear v. Nesbitt, 300 F. Supp. 2d 904 (D. Neb. 2004).

False Arrest/Imprisonment: No Warrant

     Complainant's signing of statement accusing individual of issuing a bad check gave police officer probable cause to arrest him. Wasilewicz v. Village of Monroe Police Department, 771 N.Y.S.2d 170 (A.D. 2d Dept. 2004).

False Arrest/Imprisonment: Warrant

     Arrestee failed to show that there was a lack of probable cause for affidavits which served as the basis for the issuance of an arrest warrant on charges of violating a protective order, as required to support a claim against the official who swore out the affidavits. Freeman v. Bean, No. 02-5197, 88 Fed. Appx. 360 (10th Cir. 2004).

Firearms Related: Intentional Use

     Police officer was not entitled to qualified immunity on claim that he shot a fleeing pedestrian in the back after the pedestrian, who was armed, purportedly dropped his handgun. If facts were as plaintiff asserted, officer could not reasonably have believed that he was authorized to use deadly force without warning under the circumstances. Pablo Hernandez v. City of Miami, 302 F. Supp. 2d 1373 (S.D. Fla. 2004).

Freedom of Information

     The fact that certain records requested by plaintiff under Freedom of Information Act, 5 U.S.C. Sec. 552, once existed did not show that they remained in agency's custody or that there was any duty to retain them. CIA fully fulfilled its obligations under the Act, court rules. Wilbur v. C.I.A., #03-5142, 355 F.3d 675 (D.C. Cir. 2004). [PDF]

Governmental Liability: Policy/Custom

     The alleged failure to conduct an adequate investigation of a single incident of police officers' purported excessive use of force was insufficient to show the existence of a municipal policy as required for governmental liability. Byrd v. District of Columbia, 297 F. Supp. 2d 136 (D.D.C. 2003).

Insurance

     Under Georgia law, county which had not purchased liability insurance for damages arising from officers' negligence in the performance of their duties did not waive sovereign immunity and could not be held liable for motorists' injuries from collision with truck pursued by police. Smith v. Chatham County, No. A03A1133, 501 S.E.2d 388 (Ga. App. 2003).

     Mississippi statute that provides that a municipality's purchase of liability insurance waives a $50,000 limitation on the amount of liability stated in the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-15, did not apply to a municipality's participation the Mississippi Municipal Liability Plan (MMLP), an agreement which constituted self-insurance or a risk-sharing pool. Town's maximum liability for death of motorist killed in collision with police officer, therefore, was $50,000. Mississippi Municipal Liability Plan v. Jordan, No. 2001-IA-01590-SCT, 863 So. 2d 934 (Miss. 2003).

Malicious Prosecution

     Arrestee whose rape conviction was overturned after more than ten years of imprisonment failed to show that police officer named as defendant in his federal civil rights lawsuit took an active part in procuring or continuing his prosecution as required for malicious prosecution claim under Massachusetts state law. Miller v. City of Boston, 297 F. Supp. 2d 361 (D. Mass. 2003).

Off-Duty/Color of Law: Personal Action

     Genuine issue of fact as to whether off-duty housing authority police officers acted in the scope of their employment or for "wholly personal reasons" in assaulting two men precluded summary judgment for housing authority. Beauchamp v. City of New York, 771 N.Y.S.2d 129 (A.D. 2d Dept. 2004).

     Off-duty police officer's alleged threats to a man he encountered at a gym were not conduct under color of state law and therefore could not be the basis for federal civil rights claims against the officer and city. The officer was wearing street clothes and in no way used his governmental authority. Hallstein v. City of Hermosa Beach, No. 02-56507, 87 Fed. Appx. 17 (9th Cir. 2003).

Police Plaintiff

     Airline and airline security provider did not breach any duty to protect police officer who worked at airport baggage terminal when they allegedly failed to physically inspect a passenger's checked bag containing unlabeled and unreported chemicals which allegedly emitted smoke which injured officer when he opened bag after it remained unclaimed at baggage area. Di Benedetto v. Pan Am World Service, Inc., #03-7031, 359 F.3d 627 (2nd Cir. 2004).

Police Plaintiff: Firefighters' Rule

     "Firefighters' rule" in Connecticut did not apply to lawsuit by police officer against suspect he pursued onto third party's property for injuries suffered from a fall there. Jury award against suspect for $147,535 in damages upheld. Levandoski v. Cone, #16843, 841 A.2d 208 (Conn. 2004). [PDF]

Procedural: Discovery

     Motorist suing for damages resulting from collision with police vehicle was entitled to discovery of the data collected by the defendants' experts when the highway was closed off to investigate the accident, including factual findings, calculations, measurements, diagrams, and related factual material. The fact that some of these materials may have been prepared for the purposes of litigation did not alter the result when the plaintiff could not gather the same information without "undue hardship" or by any other means. Russell v. City of Buffalo, 772 N.Y.S.2d 160 (A.D. 4th Dept. 2004). [PDF]

Public Protection: Disturbed/Suicidal Persons

     Estate of mentally ill man shot and killed by police officers after use of bean bag pellets and pepper spray failed to subdue him presented a genuine issue of fact as to whether officers had been inadequately trained in dealing with mentally ill persons and in the use of impact projectiles, and whether the alleged inadequate training caused his death. Herrera v. Las Vegas Metropolitan Police Department, 298 F. Supp. 2d 1043 (D. Nev. 2004).

Public Protection: Motoring Public & Pedestrians

     Motorist allegedly injured because state police officers negligently failed to replace extinguished road flares at the scene of an accident failed to show any "special relationship" between himself and the state of New York which would impose any duty to take reasonable measures to protect him. Eckert v. State of N.Y., 771 N.Y.S. 2d 132 (A.D. 2d Dept. 2004).

Racial & National Origin Discrimination: Racial or ethnic profiling on traffic or street stops or enforcement efforts

     Officers' stops and detentions of African-American bicyclists, in response to information that "two black males" had stolen bicycles in the area, did not constitute selective enforcement of law based on race, in violation of equal protection. King v. City of Eastpointe, No. 01-2303, 86 Fed Appx. 790 (6th Cir. 2003).

     Arrestee's claim that city had a policy or custom of condoning a "systemic practice" of racial profiling on individuals with prior criminal records which resulted in his false arrest and imprisonment was adequate to state a claim against the city for municipal liability. Anderson v. County of Nassau, 297 F. Supp. 2d 540 (E.D.N.Y. 2004).

RICO

     Losses that individual allegedly incurred as a result of wrongful incarceration on narcotics charges, including loss of employment and wages, were "personal injuries," rather than injuries to the plaintiff's business or property, so that he was not able to bring a lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1964(c) against city officials and police officers who allegedly conspired to falsely arrest and maliciously prosecute him. Guerrero v. Gates, #02-56017, 357 F.3d 911 (9th Cir. 2004). [PDF]

Search and Seizure: Home/Business

     Police officers did not act in an unreasonable manner by continuing to search apartment after they allegedly realized that the apartment's inclusion in the search warrant might have been in error and that the suspect who was the target of the search possibly did not live there. Officers could reasonably believe that the warrant still gave them authority to conduct the search, since it was issued based on a belief that the targeted suspect controlled the apartment. Duarte v. Robards, No. 02-56563, 86 Fed. Appx. 270 (9th Cir. 2003).

Search and Seizure: Person

     Delaware police officer was privileged, under state law, to pat down a passenger approached and questioned as he waited for a bus, under the terms of a statute allowing officers to search for dangerous weapons any person detained for questioning if officer possesses reasonable grounds for the belief that he is in danger if the person possesses a deadly weapon. Atamian v. Hauk, 842 A.2d 654 (Del. Super. Ct. 2003).

Sexual Assault and Harassment

     Officer acted in a personal capacity only and not within the scope of his employment when he allegedly embraced motorist who he stopped and arrested for driving under the influence of alcohol and later allegedly attempted to kiss her when she returned to retrieve her driver's license. Employer of officer, therefore, could not be held vicariously liable for his actions. Cockrell v. Pearl River Valley Water Supply District, No. 2002-CA-02090-SCT, 865 So. 2d 357 (Miss. 2004).

     •Return to the Contents menu.

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

     Annual Report: FBI Laboratory Annual Report 2003. [PDF] 44 pgs.

     Article: "Community Policing, Exploring the Philosophy" by David M. Allender, 73 FBI Law Enforcement Bulletin No. 3, pgs. 18-27 (March 2004). [PDF] "Understanding the concept of community policing can help law enforcement agencies design and implement successful programs." Also available in .html format.

     Article: "Computer Forensics," by Loren D. Mercer, 73 FBI Law Enforcement Bulletin No. 3, pgs. 28-32 (March 2004). [PDF] "An understanding of computer-related evidence proves necessary for law enforcement agencies and the courts." Also available in .html format.

     Child Abuse: Office of Juvenile Justice and Delinquency Prevention “Recognizing When a Child’s Injury or Illness Is Caused by Abuse” http://www.ncjrs.org/html/ojjdp/portable_guides/abuse_02/key.html#sids

     Guidelines: Interagency Panel on Sudden Infant Death Syndrome “Guidelines for Death Scene Investigation of Sudden, Unexplained Infant Deaths” http://www.cdc.gov/mmwr/preview/mmwrhtml/00042657.htm

     Terrorism: Report to the National Commission on Terrorist Attacks upon the United States: The FBI's Counter-terrorism Program Since September 2001. [PDF] 80 pages, (FBI, April 14, 2004).

     Reference:

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

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