CONTENTS

Throwing a "flash-bang" device "blind" into an apartment which officers believed might have one armed robbery suspect and up to eight other people sleeping there who were not involved in the robbery was an excessive use of force when it was done without a warning or the consideration of alternatives, federal appeals court rules. Officers were entitled to qualified immunity from liability, however, as the law on the subject was not clearly established at the time.

     A few days after an armed robbery of a jewelry store, Oregon police officers were contacted by a confidential informant who identified two residences where he believed one of the suspects in the robbery could be found, identifying a man he claimed bragged about his involvement in the robbery. Officers made various observations around and outside one of the apartments, and arrested two suspects who sped away following a high-speed chase that began at the residence. The officers obtained a search warrant for the other apartment, to look for the remainder of the stolen jewelry.

     Because one of the armed suspects was still at large, and could be inside the second apartment, and because there could be five to eight people sleeping inside the apartment, the SWAT Team supervisor decided that a flash-bang device should be used to gain entry and secure the premises. It was to be deployed against the apartment's front wall and near the door, where the risk of someone sleeping there was minimal.

     A flash-bang grenade is a light/sound diversionary device designed to emit a brilliant light and loud noise upon detonation. Its purpose is to stun, disorient, and temporarily blind its targets, creating a window of time for officers to safely enter and secure a potentially dangerous area.

     The search warrant was executed in the early morning hours, and after the officers announced their presence, one of them reached inside the door of the dark apartment and, without looking, tossed the flash-bang near the front wall and few feet from the door. As it turned out, one of the residents was sleeping on the floor, near the front wall where the flash-bang came to rest. She therefore suffered burns on her forearm when the device ignited. After the officers secured the premises, she was treated for her injury and transported to a hospital. She subsequently filed a federal civil rights lawsuit claiming excessive use of force.

     A federal appeals court ruled that the use of the flash-bang by the officers was "excessive use of force" and violated the plaintiff's constitutional rights.

     What was excessive, the appeals court stated, was the action of throwing an explosive, incendiary weapon with the potential to cause injury "blind" into a room occupied by as many as eight persons who were unconnected to the robbery, many of whom were likely to be asleep, and doing so without sounding a warning. The officers also failed to consider "alternatives such as a controlled evacuation followed by a search."

     While there are "likely circumstances" in which a risk to officers' safety would make the use of the device appropriate, the court stated, it

cannot be a reasonable use of force under the Fourth Amendment to throw it "blind" into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives, and appropriate measures to reduce the risk of injury.

     The appeals court also found that every officer involved in the search operation was an "integral participant" in the event, as they knew of the planned use of the flash-bang device and did not object to it. At the same time, the court held that the individual defendants were entitled to qualified immunity from liability because a reasonable officer would not have known, in October of 1997 that this use of the device was unconstitutional. The court also rejected the claim that the city had made a conscious choice to fail to train its employees adequately in the use of flash-bang devices because it failed to have a written policy on their use, as the officers involved in the search were in fact trained in the use of the device.

     Boyd v. Benton County, #02-35776, 374 F.3d 773 (9th Cir. 2004).

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Officer did not act unreasonably in shooting a man in the head with a non-lethal projectile in order to prevent his suicide after he refused to drop a knife he was pointing at his own heart. The force used was not excessive, despite the fact that it resulted in a skull fracture, brain damage, and disabling injuries.

     After a man's wife threatened to leave him, he became upset and stated that he would kill himself if she did. He wrapped a telephone line around his neck and wrapped the other end around a ceiling vent, intending to hang himself. He also used a kitchen knife to make multiple cuts across his arm and then held the knife against his chest, pointed at his heart. His wife ran from the apartment, and he locked the door behind her.

     The wife summoned police, and told them of her husband's actions and statements. When their attempts to make verbal contact with the husband from outside the apartment failed, she gave them a key, and they entered, finding the husband sitting on the kitchen floor crying, and holding the knife with both hands pointing at his heart. The telephone line was still around his neck, but no longer attached to the ceiling.

     One of the officers allegedly ordered the man several times to put the knife down, speaking in both English and Spanish, but the man did not lower the knife, although he also made no threatening movements towards the officers.

     One officer ordered another to use the "Sage SL6 Launcher" and hit the man two times. This launcher fires a polyurethane (soft plastic) baton that is 1.5 inches wide and travels much slower than a bullet and delivers less impact. It is primarily used to protect persons from self-inflicted injury, when a nightstick would be impractical or unsafe to use. It is not designed to penetrate the body and generally causes only minor bruises or abrasions. The baton travels at approximately 240 feet per second and delivers 134 foot/pounds of energy, or approximately the energy level of a professionally thrown football. By contrast, according to the evidence in the case, a 9mm handgun delivers a bullet that travels at 1,200 feet per second and delivers approximately 400 foot/pounds of energy.

     The officer, standing approximately six feet away, allegedly aimed for the man's shoulder, but hit him once in the head, fracturing his skull and causing injuries to his brain. As a result, the man subsequently had to take medication to prevent seizures, and suffers from headaches, loss of memory, loss of balance, insomnia, dizziness, stuttering, loss of sensation and movement, loss of strength, and sensitivity to light. The Social Security Administration classified him as disabled and no long able to work.

     He sued the city and a number of police officers, claiming that the use of the non-lethal projectile in this manner was an excessive use of force, particularly as he was not involved in committing a crime.

     A federal trial court did not agreed, and granted the defendants summary judgment.

     It found that a reasonable officer, under the circumstances, could have shot the plaintiff in the head with the non-lethal projectile, and that its use was not excessive force, even though the officers were attempting to prevent a suicide rather than apprehend a criminal and did not warn the plaintiff before shooting, and the shooting resulted in severe injuries.

     The officers were trying to preserve the plaintiff's life, and in doing so, to satisfy a strong governmental interest. The plaintiff had refused to drop a deadly weapon after the officers asked him to do so at least twice (and possibly more), and the circumstances were very "volatile."

     The court also stated that the law applicable to the facts of the case was not "clearly established," so that the individual defendants were also entitled to qualified immunity from liability.

     The court also rejected federal and state law claims against the city, including those for inadequate or negligent training or supervision.

     Mercado v. City of Orlando, #6:03-cv-227-ORL-18KRS, 323 F.Supp. 2d 1266 (M.D. Fla. 2004).

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Police officer who shot and killed suicidal man who attempted to stand in front of moving traffic on a highway, told him that "I am Jesus Christ [...] I am going to die and so are you!" and then attacked him, was entitled to qualified immunity from liability, as he acted in reasonable self defense.

     A Florida police officer driving to work in his unmarked patrol car observed a man whom he perceived to be a "deranged, crazed man," standing in the middle of the interstate highway, facing heavy oncoming traffic, with his hands raised, palms out, over his head. The officer parked his car in an emergency lane and place a radio call for assistance with an apparent suicide.

     The man began walking from lane to lane, apparently attempting to harm himself or others by purposefully trying to stand in front of fast-moving cars and trucks. The officer, who was dressed in civilian clothes, with a detective badge displayed on his belt left his gun in its holster on the front seat of the car, yelled "HEY!" at the seemingly suicidal man and motioned for him to get out of the oncoming traffic.

     In response, the man turned, started moving quickly towards the officer, appeared angry and ready to fight, with his arms raised, palms out, and started screaming "obscenely":

You see this, you see this . . . I am Jesus Christ, you motherfucker! I am going to die and so are you!

     The officer, threatened in this manner, ran to his car for safety, rolled up the driver's side tinted window, locked the doors, and radioed again for help. The man had arrived at the rear of the car and started attacking it. The officer later testified that he heard an explosion that sounded like a gunshot blast from the rear of his car and that a rear window broke inwardly, striking him with flying glass. The officer then unholstered his gun.

     He heard another gunshot-like explosion, and he fired in self-defense through the side window, which had now broken in a spider-webbed pattern. The officer called for an ambulance, and pushed open his door, having to push hard against the man's body as he did so. The man had collapsed down the driver's side door, and was on the ground, mortally wounded.

     The man's estate filed a lawsuit claiming excessive use of force.

     Another eyewitness to the incident claimed that the man, rather than firing any shots, struck the trunk of the car multiple times with his fist and then struck the rear window five to seven times until his fist broke through the window, and then moved to the driver's side and banged on the roof, after which he appeared to be exhausted, moved a few steps away, and was then shot twice by the officer, who appeared to be firing through an open door, not the spider-web-like window.

     Other evidence from two other eyewitnesses, however, corroborated the statements provided by the officer and the physical evidence. The physical evidence also showed that the bullets fired by the officer went through the window from the inside out, not through an open door.

     The trial court denied the defendant officer summary judgment on the basis of qualified immunity. A federal appeals court disagreed.

     It found that the officer acted in self-defense and did not violate the decedent's constitutional rights. The officer intervened to prevent harm to the decedent and others, and the decedent directly threatened him, and when the officer shot him, he believed that he was under attack by the decedent.

     While there were statements by one eyewitness disputing the officer's version of the incident, this eyewitness was merely driving by at the time, and his version was inconsistent with the officer's statements, the physical evidence, the statements of other eyewitnesses, and even his own initial statement to the police, according to the appeals court.

     The appeals court concluded that there was therefore "no substantial evidence" contrary to the testimony of the officer. "A mere scintilla of evidence" in support of the plaintiff was insufficient to defeat a motion for summary judgment, so that the decedent's estate has "not established that the shooting was objectively unreasonable, given the circumstances. No constitutional violation is present."

     The appeals court also found that, even if it were found that the officer violated the decedent's rights, he was entitled to qualified immunity under these circumstances.

We have found no preexisting case law involving materially similar facts that would give a reasonable police officer fair and clear warning that shooting a crazed man, intent upon causing harm to himself and others, including the officer who had retreated as far as possible, and has acted in self-defense, violated the Constitution. Here Herrington [the officer] acted in self-defense. He did not violate the Constitution or any clearly established law. He is entitled to qualified immunity.

     Kesinger v. Conner, No. 03-13883, 2004 U.S. App. Lexis 18160 (11th Cir. 2004).

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Arrestee's excessive force lawsuit against city and its officers was properly dismissed on the basis of a release-dismissal agreement he signed waiving the right to sue in exchange for the dismissal of two of the three criminal charges against him. He voluntarily signed the agreement, there was no indication of prosecutorial misconduct, and enforcing the agreement would not be against the public interest.

     An Ohio arrestee appealed from summary judgment in his excessive force lawsuit against the city and its police officers involved in his arrest, arguing that the trial court erroneously upheld the validity of a release-dismissal agreement he previously entered into, releasing the defendants from civil claims in exchange for the dropping of criminal charges against him.

     A federal appeals court rejected his arguments, finding the release agreement enforceable because it met the requirements set forth by the U.S. Supreme Court in Newton v. Rumery, No. 85-1449, 480 U.S. 386 (1987).

     In the immediate case, the plaintiff was charged with obstructing official business, resisting arrest and disorderly conduct arising out of an incident in which police were summoned to a party which he was attending. While his case was pending, on the advice of his lawyer, he entered into a release-dismissal agreement with the city and its officers. The city agreed to dismiss the charges of resisting arrest and obstructing official business and to amend the disorderly conduct charge, to which the plaintiff later pled no contest. Despite the release agreement, the plaintiff filed an excessive force lawsuit against the city and its officers

     Under the principles set forth in Town of Newton v. Rumery, the appeals court noted, when a criminal defendant releases his right to file a civil rights action in return for a prosecutor's dismissal of pending criminal charges, the agreement is valid and enforceable so long as it meets certain criteria:

The enforcement of such an agreement is appropriate if a court decides that (1) it was entered into voluntarily; (2) there is no evidence of prosecutorial misconduct; and (3) the enforcement furthers the public interest. The burden of proof in this analysis "falls upon the party in the § 1983 action who seeks to invoke the agreement as a defense."

We derived the rationale for this allocation of the burden of proof from Justice O'Connor's concurrence in Rumery: Permitting such releases may tempt public officials to bring frivolous criminal charges in order to deter meritorious civil complaints. The risk and expense of a criminal trial can easily intimidate even an innocent person whose civil and constitutional rights have been violated. The coercive power of criminal process may be twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole.

     In terms of voluntariness, the plaintiff in this case was 34 years old and represented by a lawyer when he signed the release agreement. He is a college graduate who has been employed since 1989 and takes part in continuing education seminars, and he was not incarcerated when he signed the agreement. There was also no evidence that he was denied ample time to consider the agreement before signing it. His signing was "undeniably voluntary," the court concluded.

     The court found no evidence of prosecutorial misconduct in the case, and the plaintiff himself did not claim that any of the charges initially brought were "in any way trumped up," and the appeals court found that the charges "seem reasonable" in light of the police officers' version of the incident. The fact that the prosecutor conditioned the dismissal on all the charged partygoers signing the release was not found to be improper.

     The appeals court noted that the trial court, in addressing the third fact--the public interest factor, merely said:

Public interest mandates holding parties to the agreements they enter into on their own volition. Nullifying the Release Agreements would provide a disincentive to prosecutors from agreeing to release-dismissal agreements in the future. Therefore the public interest is served by enforcing the Release Agreement.

     The appeals court found that the trial court should have made more detailed findings on this issue, but found the failure of the trial court to do so an inadequate basis to order further proceedings, but admonished trial courts to make more detailed findings on the issue in the future.

     MacBoyle v. City of Parma, No. 03-3784, 2004 U.S. App. Lexis 18412 (6th Cir. 2004).

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City could not be held liable for death of wife shot and killed by her estranged husband while she attempted to retrieve her belongings from their residence while accompanied by police officers. Officers had no constitutional duty to protect the wife against violence by the husband and their presence in the home did not increase or create the danger to her from him.

     A Michigan woman who was estranged from her husband sought assistance from police officers in going to her home so that she could pack her belongings and leave. She told them that she had an order of protection against him, and that he had told her that he would keep their minor children at the house and would kill them if she did not return.

     The officers entered the home with the woman and encountered the husband, who was wearing a jogging jacket with "kangaroo-style" pockets and his hands in his pockets. The officers allegedly did not search him for weapons or segregate him in the home to prevent him from having physical contact with his wife. While the wife was on her third trip to the bedroom to retrieve a bag of her personal belongings, her husband, allegedly in plain view of the officers, walked down the hallway and into the bedroom where his wife was located, drew a .380 revolver which he had in his possession since the officers had arrived, and fired a single shot killing his wife. He then shot and killed himself.

     The wife's estate filed a federal civil rights lawsuit against the city, claiming that it should be liable for the death and that it had failed to properly train and supervise its officers in handling domestic violence situations, and allowed the wife's constitutional rights to be violated by the failure of its officers to prevent the shooting.

     The trial court granted the city's motion to dismiss. It noted that the wife was not in the custody of the police officers when they accompanied her to the home. Ordinarily, officers have no duty to any specific individual to protect them against private violence, in the absence of a custodial situation or some other exception to the general rule that the duty to provide police protection is a duty owed to the general public. Accordingly, their failure to prevent the husband from shooting her did not violate the Due Process clause of the Fourteenth Amendment.

     The trial judge also rejected the argument that the officers' presence in the home at the time of the shooting created the danger to the wife, bringing the estate's claim within a "state-created danger" exception to the general rule. Even if their presence in the residence had the effect of "lulling" her into a false sense of security and they failed to act when the shooting occurred, they had not put any physical restraint on the wife that would limit her freedom to act on her own behalf to protect herself, and none of their actions made her any less safe than she would have been if she had gone there without their assistance.

     Simmons v. City of Inkster, #03-72318, 323 F. Supp. 2d 812 (E.D. Mich. 2004).

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Police officers had probable cause to arrest armed security guard for unlawful possession of a firearm when he lacked one of several documents required to authorize him to possess a weapon while going to and from work. But the arrestee could pursue his claim that they unlawfully caused him to be detained for longer than 48 hours without a proper finding of probable cause when the only evidence they submitted at his probable cause hearing was a written complaint authored by one officer, signed by another, and with the forged signature of yet a third officer placed in the space intended for a judge or court clerk to verify that the officer signing the complaint had sworn to its truthfulness.

     An arrestee in Chicago sued the city and two of its police officers for false arrest and unlawful detention in violation of his federal constitutional rights.

When arrested, Haywood was employed by a pawnshop as an armed security guard. He was just beginning his commute to work from his home on Chicago's south side one day when the defendant police officers, acting on a tip that he was armed, pulled him over. They asked him where he was going; he explained that he was on his way to the pawnshop. They noticed that he had two guns with him; he told them he had papers that proved he was authorized to carry them and he showed them the papers, which included a firearm owner's id card and a card which certifies eligibility to work for a licensed security agency. He lacked, however, a Chicago gun registration certificate, and a "tan card," which certifies that the cardholder may carry a weapon while working or commuting because he is employed by a licensed security agency and has completed firearms training.

     The officers arrested him for failure to have a Chicago gun registration certificate. He was not charged with failing to have the "tan card." He was jailed and subsequently taken before a state court judge for a probable cause hearing at which no one testified, and at which the only evidence submitted, besides the police report, was a complaint charging him with knowingly carrying a concealed loaded firearm without a license.

     The complaint was written by one officer and signed by the other, but that was not indicated by the document or mentioned by the prosecutor, who may have been unaware of it. In the place in the complaint for a judge's or court clerk's signature attesting that the officer had both signed the complaint and sworn to its truth, the officer had written and signed the name of a third officer. The judge ruled that there was probable cause to hold the arrestee on the basis of the complaint, and he remained in jail for ten days before he was bailed out.

     The appeals court found that the officers had probable cause to arrest the plaintiff, because of his failure to have the "tan card," since a police officer who knew the law would know that the papers that the arrestee displayed which he contended authorized him to carry a gun were incomplete without that document. This was an adequate basis for the arrest, even if the officers did not charge him with that offense at the time.

     But while rejecting the false arrest claim, the appeals court pointed out that the arrestee could not, "consistent with the Fourth Amendment, be continued in custody beyond 48 hours (with inapplicable exceptions) unless a judicial officer determined that there was probable cause to believe that he had committed a crime," citing County of Riverside v. McLaughlin, No. 89-1817, 500 U.S. 44 (1991).

     The only basis for a finding of probable cause on which the state relies in this case, however, was a falsely sworn complaint whose falsity was, so far as appears, unknown to the judge at the probable-cause hearing.

Immaterial falsehoods, even deliberate ones, in an affidavit that is presented to a judge or magistrate in support of a request for the issuance of an arrest or search warrant do not invalidate the warrant should it be issued. The same is true regarding a sworn complaint submitted to obtain a judicial finding of probable cause to detain a person who has been arrested. But this isn't such a case. No one signs another person's name by accident; there is no indication that Maras [one of the officers] failed merely by inadvertence to indicate that he was signing another person's name; and a fraudulent complaint cannot provide the sole basis for a finding of probable cause. So although we agree with the district court that the arrest itself was lawful, the grant of summary judgment with respect to the continued detention ordered by the judge at the [probable cause] hearing was [in] error, and so the case must be remanded and the plaintiff's supplemental state-law claims, dismissed because the district court dismissed the plaintiff's federal claims before trial, reinstated.

     The arrestee, therefore, could proceed on his claim that the officers improperly caused his detention beyond 48 hours due to their knowing submission of a falsely sworn complaint.

     Haywood v. City of Chicago, No. 03-3175, 378 F.3d 714 (7th Cir., 2004)

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Federal appeals court panel rules, by 2-1 vote, that the failure of a police department to issue officers non-lethal weaponry, such as OC and batons, did not provide a basis for liability for shooting an unarmed man running towards an officer. Strong dissent asserts that a policy of equipping officers only with guns was bound to result, sooner or later, in the use of unjustified deadly force.

     Police had a number of run-ins with a woman's estranged husband, who came to the home and hit her despite the existence of a domestic violence protective order, and who, at one point, evading apprehension, rammed a police car, resulting in a felony warrant being issued for his arrest. On one evening, and the subsequent morning, he entered his wife's home on four separate occasions, breaking through a window, ransacking the kitchen, and smashing the tv. On each occasion, police officers came, but were unsuccessful in capturing him.

     The wife and a teenage girl staying at the house armed themselves with butcher knives after the second incident, and after the third entry, an officer remained at the house for an hour to provide security. After the fourth entry, the husband escaped again, but an officer remained in the home to protect the wife, while other officers set up a perimeter in the area. The husband was subsequently observed and chased on foot, and by one officer with a car.

     When the police car found the husband, the husband ignored orders to stop and ran toward the car with his hands extended in front of him at shoulder height, the palms pointed forward. The officer, who had stopped the car, could see that the husband's hands were empty. The officer took a firing position at the rear of his car, and took off the safety on his gun, firing when the husband's chest was 24-36 inches from the gun's muzzle and the palm of his left hand was 12-24 inches away from the muzzle. The single shot entered the husband's heart and killed him.

     A civil rights lawsuit claimed that this constituted excessive use of force, particularly as the husband was unarmed at the time. The municipality did not provide the officer with a baton or pepper spray, "nor were they required."

The use of these non-lethal weapons was permitted, but only after an officer had successfully completed applicable familiarization programs. Snyder [the shooting officer] had not received such training and was armed only with a gun.

     The officer stated subsequently that he did not know that the husband was unarmed and that he believed at the time that the husband may have had a weapon on his person, but that if he had non-lethal weapons in his possession, he would not have pulled his gun from the holster. The officer had been a policeman for fourteen years.

     The trial court ruled that the defendant police officer was entitled to qualified immunity and entered judgment in his favor, and also stated that "nothing in the Constitution required a municipality, or its police department, to maintain a list of particularized type of equipment that must be furnished to its officers. The failure to provide non-lethal weapons did not rise to a constitutional level."

     On appeal, a two-judge majority of a three-judge panel, in upholding a finding of no liability, stated that it was "hesitant to hold that the jury could find excessive force based on the record here."

Before the shooting occurred, the husband had escaped from an armed policeman and the chase was still underway with a number of officers in pursuit. The husband was running at full speed directly toward Snyder's police cruiser. Ignoring orders to stop, the husband kept charging at the officer who held his fire until the muzzle of his gun was two feet away from the husband. Although after the shooting it was determined that the husband was unarmed, Snyder denied that he knew that at the time and there was no evidence to the contrary.

In these circumstances a reasonable officer could believe that firing at the suspect was a proper response. A reasonable officer would not be expected to take the risk of being assaulted by a fleeing man who was so close that he could grapple with him and seize the gun. Our recitation of these events is a discussion in slow motion of an incident that took place in a matter of seconds. Officer Snyder had no time for the calm, thoughtful deliberation typical of an academic setting.

     While a plaintiff's expert thought that the officer should not have pulled his gun, but rather should have chosen to tackle or otherwise physically subdue the husband, the appeals panel majority concluded that the officer's conduct at most was a mistake that was reasonable under the circumstances. The majority stated that it was not persuaded that the officer made a mistake in the use of his weapon, but that even if he did, it was one a reasonable officer could have made.

     The panel's majority declined to recognize municipal liability for a constitutional violation because of "failure to equip police officers with non-lethal weapons."

Mandating the type of equipment that police officers might find useful in the performance of their myriad duties in frequently unanticipated circumstances is a formidable task indeed. It is better assigned to municipalities than federal courts.

     A strong dissent by the third judge on the panel agreed that the individual officer was entitled to qualified immunity as a matter of law, but disagreed with the last part of the majority's opinion, stating that he believed that, viewed in the light most favorable to the plaintiff, the evidence established a prima facie case of liability against the municipality and the police chief in his official capacity.

     The officer, the dissenting judge noted, candidly testified that he saw nothing in the husband's hands as he ran towards him, and that he would not have pulled his gun had he been equipped with non-lethal weapons. That testimony, the judge stated, would allow a judge to conclude that the officer used excessive force in fatally shooting the husband, and that he did so knowingly.

     While that was not enough to deprive the individual officer of qualified immunity, the dissenting judge stated, it was enough to support a finding that the use of excessive force resulted from the municipality's policy and custom of providing officers only with guns, "i.e., lethal weapons." A jury could reason that the officer had to resort to excessive force solely because the department had left him no alternative but to use his gun in a situation where non-lethal force could reasonably have been employed to stop the husband, and that this constituted deliberate indifference because the officer was left with no reasonable alternative to the use of deadly force.

It did not equip them with any non-lethal weapons. Rather, an officer had to request any non-lethal weapon he/she might wish to carry and the request had to be approved by Zuger [the police chief]. If the request was approved, the officer then had to undergo additional training with the new weapon and become certified to use it. Although Chief Zuger was not asked about training in lethal force, the fact that officers were equipped with a gun and had to be trained in any approved non-lethal weapon they may have carried certainly supports the inference that the Borough only trained officers in the use of lethal force unless the Borough approved an individual request for a non-lethal weapon.

It is obviously foreseeable that an officer who is equipped only with a lethal weapon, and trained only in the use of lethal force, will sooner or later have to resort to lethal force in situations that officer believes could be safely handled using only non-lethal force under the Borough's own "progressive force" policy. This record therefore presents that "narrow range of circumstances, [where] the violation of federal rights [is] a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations."

     The dissenting judge rejected the argument by the majority that the issue was whether the Constitution creates an approved "equipment list" for police officers as "misleading and counterproductive."

Given the duties of a police officer, it was certainly foreseeable that the Borough's policy of equipping officers only with guns and training them only in the use of deadly force would sooner or later result in the use of unjustifiable deadly force.

The result is, therefore, not a mandated equipment list, but a mandated alternative to using deadly force in those situations where an officer does not believe it is necessary to use deadly force. We must not forget that "one of the main purposes of nonlethal, temporarily incapacitating devices such as pepper spray is to give police effective options short of lethal force that can be used to take custody of an armed suspect who refuses to be lawfully arrested or detained." Moreover, interpreting the Fourth Amendment as requiring municipalities to provide reasonable alternatives to the use of deadly force imposes no undue burden. In fact, here, it would do nothing more than effectuate the Borough's own announced policy of "progressive force."

     Carswell v. Borough of Homestead, No. 03-2290, 2004 U.S. App. Lexis 17732 (3rd Cir. 2004).

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Motorist's claim of "gross negligence" by law enforcement personnel in civil rights lawsuit arising out of a vehicle accident were insufficient to support a claim of violation of substantive due process where there was no showing that they had any intent to harm anyone.

     A man was visiting his mother in Nebraska and traveled there accompanied by a female friend and her four children. He had been drinking all day and had allegedly stolen a bottle of whiskey from a convenience store on the way. During the visit, he took his female friend out on a three-wheel all-terrain vehicle (ATV), driving around his mother's property and the surrounding area. At the same time, the county sheriff was traveling to his mother's home, accompanied by a deputy, responding to a report regarding the man's alleged shoplifting, stolen license plates on his car, and a request by the mother that her son be removed from her property.

    Two other police vehicles met up with the sheriff and when they got to the mother's home, they learned that her son was out riding on the ATV. One of the law enforcement vehicles subsequently collided with the ATV on the property of a manufacturing plant when it was found, throwing the man and his female friend to the ground, and the man suffered a number of injuries, including a compound fracture to his lower left leg. The collision occurred after the ATV emerged from behind a building and came towards the law enforcement vehicles.

     The injured man sued the county, the sheriff, and his deputy in their official capacities only, and claimed that his constitutional rights were violated by grossly negligent actions of the county, and by the sheriff's gross negligence in disregarding established pursuit policies and failing to supervise the deputy.

     The trial court, citing County of Sacramento v. Lewis, No. 96-1337, 523 U.S. 833 (1998), held that these constitutional claims did not arise under the Fourth Amendment, because a police pursuit or an unintentional collision does not amount to a "seizure," and further found that there was no basis for asserting a violation of substantive due process under the Fourteenth Amendment either, because the plaintiff only alleged gross negligence, and not an "intent to harm" in a way that "shocks the conscience."

     A federal appeals court upheld this result. It noted that while Lewis involved a high-speed chase intended to accomplish an arrest, it agreed with the trial court that the principles in the case "extend beyond that precise factual situation," including to the current case, where the law enforcement vehicle was not traveling at a very high rate of speed.

     In this case, the officers were confronted with a "rapidly developing situation" that arose quickly after they arrived on the property of a manufacturing plant where they found the plaintiff. Whether or not they were technically "in pursuit," or intended to make a "formal arrest," there was no doubt that they intended to make an investigative contact with the plaintiff about the alleged shoplifting and stolen license plates and complaints from his mother.

     When he appeared on an ATV from behind a building, the officers had no more than ten seconds to react to the approaching vehicles, and the fact that they may have been driving at "medium speed" rather than "high speed" is "not a constitutionally significant distinction." The plaintiff was still required to shown an intent to harm in order to establish a violation of his substantive due process rights, and the plaintiff in this case did not claim that the officers acted with that intent, so the trial court properly rejected his claims, the appeals court ruled.

     Dillon v. Brown County, No. 03-3687 2004 U.S. App. Lexis 17840 (8th Cir. 2004).

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Officers who had reason to believe that juveniles were drinking alcohol at a party inside a home could have believed that they had exigent circumstances sufficient to justify a warrantless entry into the residence, based on the threat to public safety if the juveniles subsequently left the home in cars under the influence of alcohol. They were therefore entitled to qualified immunity.

     Two police officers arrived at a man's home after an unidentified caller told the police department that juveniles were consuming liquor there. They heard loud noises coming from the house and observed a dozen people standing on the back deck. They radioed for assistance, and one of the officers, in approaching the home's rear door by way of the back deck observed a minor he recognized through a window drinking a beer inside the home. The homeowner's 20-year-old son told the officer that he could not enter the home without a warrant.

     The officer stated that he did not need a warrant and went into the house. The officer entered and searched a number of rooms, and a second officer also entered. A third officer who arrived there gathered together juveniles who were attempting to leave. The homeowner allegedly screamed obscenities at one of the officers and stated that they needed a warrant to enter his home.

     After going outside, the officers allegedly reentered when they learned that a juvenile had reentered the home, and again were confronted by the homeowner who repeated that they could not enter without a warrant, and also stated that the juvenile was not inside. He was subsequently arrested for interference, resisting arrest, and supplying alcohol to minors. While the other charges were dropped, he pled guilty to supplying alcohol to minors, and then sued the officers and city, claiming that the warrantless entries into his home had been unlawful, and that excessive force had been used against him.

     The trial court granted summary judgment in favor of the officers on the unreasonable entry and search claim on the grounds of qualified immunity, and also granted summary judgment for the city, since the plaintiff failed to show that the city had an official policy or custom of tolerating police misconduct. A jury returned a verdict in favor of the officers on the use of force claim.

     Upholding summary judgment for the defendants on the search and seizure claims, the appeals court found that reasonable officers could have believed that the entry into the home was supported by "exigent circumstances." The officers had reason to believe that juveniles there were drinking and there was a threat to public safety if the juveniles left the house in cars while under the influence of alcohol.

It would have been unreasonable to subject the neighbors to the loud noise or to require the officers to quarantine the juveniles' cars during the period of time it would have taken to obtain a warrant. Thus, summary judgment on qualified-immunity grounds was proper because we think the officers acted on a reasonable belief that probable cause and exigent circumstances existed.

     Radloff v. Oelwein, No. 03-3493, 2004 U.S. App. Lexis 17016 (8th Cir. 2004).

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Parole officers had no right to make a warrantless search of a woman's house to look for a parole violator who did not actually live there. Because they reasonably believed, however, on the basis of mistaken information furnished to them, that the house was the parolee's residence, they were entitled to qualified immunity from liability, since they had the right to search a parolee's home without probable cause or a warrant, and they left as soon as they determined that this was not the parolee's home.

     Parole officers made a late at night search of a woman's house based on mistaken information that a parolee sought under a warrant for a parole violation was residing there. After receiving information that the parolee was staying at that address, a total of seven parole officers went there for the purpose of finding and arresting him. After ringing the doorbell repeatedly and knocking loudly, they roused both the woman and her daughter, who had been asleep. They announced themselves as police and demanded that the door be opened.

     The homeowner opened the door and two of the officers went inside, explaining that they were looking for a parole violator. They displayed no search warrant, and searched the home, but did not find the parolee. The officers eventually realized that they had been provided with incorrect information and apologized and left.

     The homeowner filed a federal civil rights lawsuit over the search. The trial court denied the defendant officers' motion for summary judgment on the basis of qualified immunity.

     A federal appeals court found that the officers, in entering the residence without a search warrant had made a per se unreasonable search under the Fourth Amendment, violating the homeowners' rights. The homeowner, in this case, was not herself a parolee with a diminished liberty interest, so that any departure from normal warrant and probable cause requirements which are applied with respect to parolees did not apply to her, or to any of the other actual residents of the home--her ill, elderly husband and her daughter.

     In the circumstances of the case, however, the officers reasonably could have believed, on the basis of the mistaken information furnished to them, that the home was the residence of the parolee. They were entitled under the "special needs" doctrine, concerning the need to supervise parolees, and under state parole rules and regulations, to search the home of a parolee without probable cause or a warrant. The officers were therefore entitled to qualified immunity from liability, particularly as they left the residence when they determined that the parolee was not there, and that the homeowner's son, who did not live there, and whose picture they were shown, was not the same person as the parolee they sought, although his name was the same as one of the aliases that the parolee sometimes used.

     Moore v. Vega, #02-9209, 371 F.3d 110 (2nd Cir. 2004).

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Federal appeals court rules that the use of civilians to assist police officers in executing a search warrant did not violate the Fourth Amendment, even though a "better practice" would have been to have the magistrate issuing the warrant explicitly authorize their assistance. Officer acted reasonably in asking company security officer and supervisor to assist him in searching for computer chips, equipment, and other allegedly stolen material that he believed he did not have the necessary technical expertise to identify himself.

     As part of an investigation of the theft of electronic materials from an electronics manufacturing company, officers conducted a search of the office, home, and a truck belonging to some suspects. In a federal civil rights lawsuit concerning the validity of these searches and the search warrants used in carrying them out, the trial court granted summary judgment to the defendant officers and town on all claims.

     The trial court did, however, find that the officer in charge of the search, violated the plaintiffs' right to privacy by failing to get the magistrate who issued the warrants to approve the use of civilians in conducting the searches and by "not adequately limiting the role played by the civilians in the searches." It also ruled, however, that the officer was entitled to qualified immunity from liability because the limitations on civilian involvement in the execution of search warrants was not clearly established at the time of the searches.

     A federal appeals court affirmed, but adopted a different line of reasoning, finding that the use of civilians in the searches was not a violation of the plaintiffs' Fourth Amendment rights at all.

     The case involved the alleged theft of computer chips and equipment from a company which manufactured them. Because the officer in charge of the search was not familiar with computers and electronic equipment, and believed he needed assistance in identifying the allegedly stolen property, he asked two employees of that company who had been involved in complaining about the alleged theft to accompany him when the searches were conducted. The town's chief of police concurred in this decision, but the magistrate who issued the warrants was not consulted about this decision.

     The group of officers, and the two civilians, searched a suspect's office on one day, and searched the other suspect's home and truck the next day. The two civilians actively assisted in the search of the office, opening cabinets and drawers, reviewing documents, and identifying their company's property. One of them also searched the other suspect's home office and accessed his home computer, and was left alone for approximately one hour there while the officer in charge of the search questioned the suspect.

     A large amount of property believed to be stolen from the company was recovered during these searches, including product schematics, customer lists, cables, and other computer components. The two suspects and their wives were indicted on criminal charges that were subsequently dismissed.

     The federal appeals court found that the use of a civilian to assist in carrying out a search pursuant to a warrant under these circumstances was reasonable. While it would be impermissible for them to "ride along" in furtherance of their own private interest, in this case their assistance was requested and reasonably thought to be needed by the officer because of their specialized or technical knowledge. The two civilians were the security officer and supervisor at the company complaining of the theft.

     The appeals court stated that the "better practice" would be to have the magistrate issuing the warrant indicate that permission has been obtained for civilian assistance. The court noted, however, that the Fourth Amendment does not "explicitly" require an officer's presence during the execution of a search, so that it was no "automatic" violation of the Fourth Amendment that the civilian was left alone during a portion of the time.

     None of the search, the court also noted, went outside of the scope of the warrant.

     Bellville v. Town of Northboro, #03-1510, 375 F.3d 26 (1st Cir. 2004).

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Female police officer's warrantless strip search of a female resident of a children's home was justified by her reasonable suspicion that she possessed narcotics, and even if she were mistaken in believing that she could conduct such a search under the circumstances, she was entitled to qualified immunity.

     A 16-year-old Kentucky girl was removed from her parents' custody and placed in a state-approved private facility for juvenile offenders after a juvenile court found that she had committed offenses of possession of marijuana, forgery, and fraudulent use of a credit card. While there, she, together with several other girls who lived in one of the cottages, admitted having previously used drugs in the cottage.

     After the girl turned 17, she and two other residents of the same cottage were observed "acting strangely" after going for a walk, and two staff members suspected drug use might be the reason. A local police officer passing by in his patrol car was informed about their suspicions that the girls might be under the influence of drugs or have them in their possession.

     During a search by police officers and a staff member, a plastic bag was found which officers believed might have contained drugs, as well as a baggy with a plant substance residue they thought might be marijuana and a glass vial which they believed might have been used as a pipe, and "prescription pills," all items the officers believed to be associated with drug use. At some point, the 17-year-old girl allegedly "insinuated" to the staff members that she might have drugs hidden in her undergarments.

     The officers believed at this point that the girls needed to be searched to ensure that there were no drugs in the cottage. Because the officers were all male, they called to have a female officer sent to perform these searches. She indicated that she could not perform a body cavity search without a warrant, but that she would perform a visual strip search of the girls to look for drugs.

     She conducted the searches one at a time, with each girl searched in her own room with a female staff member present. The female officer instructed each girl to first remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend over to allow a visual inspection of her rectal area. She never physically touched any of the girls, and no drugs were located on any of the girls during the strip searches.

     The 17-year-old girl sued the city, its police chief, and all police officers involved. All defendants except the female officer settled. The trial court granted the female officer's motion for summary judgment on the basis of qualified immunity, concluding that in 1997, the time of the search "it was not clearly established that a search warrant supported by probable cause was required to constitutionally conduct a strip search of a minor suspected of possessing drugs in a juvenile home or detention center."

     A federal appeals court upheld this result. It found that the situation of juvenile delinquent residents of the children's home was "somewhere between" the situation of prison inmates and students in school.

Perhaps their expectations of privacy in that situation were somewhat greater than those of prisoners, but this slight difference appears insignificant. On the other hand, they were still subject to substantial restraint; they were required to live and remain in the Home and they were not free to leave it as they wished. Their confinement to the Home, like that of inmates in a prison, was punishment for prior criminal misdeeds. In comparison to students in school, whose mandatory attendance is not punishment for criminal misconduct but a method of insuring their education, the inmates of the Home were under substantially greater restraint and had a lesser expectation of privacy than do students.

     Under these circumstances, the court found, the female officer's strip search of the child was not unreasonable. The children's home had the duty and responsibility to insure the safety, health, and well being of the children, and the use or possession of drugs by any of them would cause serious problems within the home, and "adversely affect its proper functioning."

     In this case, the plaintiff herself "insinuated" that she had drugs hidden in her underwear.

Although the strip search was a highly invasive procedure, it was no more invasive than necessary to accomplish its purpose of insuring that Reynolds and the other girls were not concealing drugs on their persons. It was conducted in a way designed to minimize its intrusive effect. Officer Watson made the search in the privacy of the girls' own rooms and in the presence of only a single staff member. She did not touch any of the girls during the search. Considering all the circumstances, we conclude that Officer Watson's strip search of Reynolds was not unreasonable.

     The court found that the fact that the search was carried out by a police officer rather than by personnel of the children's home did not alter the result. The home's personnel could have carried out such a search upon reasonable suspicion, the court found, based on their duty to protect the children. In this case, it was objectively reasonable for the officer to conclude that "interests apart from those of ordinary law enforcement permitted her to conduct a warrantless strip search" of the girls.

     The appeals court further found that even if its conclusion that the strip search did not violate the Fourth Amendment were to be rejected, the defendant officer would still be entitled to qualified immunity for conducting the search, since it could not be said that it was clearly established at the time that the girl had a constitutional right not to be strip searched under these circumstances except pursuant to a valid search warrant. Even if the officer was mistaken in "concluding that she could make a warrantless visual strip search, such mistake was reasonable."

     Reynolds v. City of Anchorage, No. 02-6443, 2004 U.S. App. Lexis 16301 (6th Cir. 2004).

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Assault and Battery: Handcuffs and Restraints

     Arresting officers were not entitled to qualified immunity from arrestee's claim that they used excessive force in insisting on handcuffing her with her hands behind her back despite the fact that she was unarmed, was not resisting arrest and had allegedly informed them that she had a disability stemming from having undergone shoulder fusion preventing her from placing her hands behind her back to be handcuffed. The arrest was for loitering for purposes of prostitution. Court finds that reasonable officers should have known that it was unreasonable to proceed with forcibly handcuffing her under these circumstances without further inquiry into her disabling condition. Rex v. City of Milwaukee, 321 F. Supp. 2d 1008 (E.D. Wis. 2004).

Assault and Battery: Physical

     There were genuine issues of fact as to whether police officers arresting anti-abortion demonstrators who had chained themselves together had used excessive force, precluding summary judgment in the demonstrators' federal civil rights lawsuit. There were also factual issues as to whether the town failed to adequately supervise its officers, but no evidence that the town inadequately trained its officers on the use of force. Amnesty America v. Town of West Hartford, #03-7332, 361 F.3d 113 (2nd Cir. 2004). [PDF]

Defenses: Governmental Immunity

     Police officers who responded to an emergency call from medical personnel who needed help in restraining a "combative and uncooperative" ambulance patient having convulsions and who allegedly injured him while handcuffing him after he attempted to bite one of them, were entitled to governmental immunity from liability under the Indiana Tort Claims Act, I.C. 34-13-3-3(8). The officers were enforcing the law at the time, despite not placing the patient under arrest, as they were attempting to prevent him from injuring himself or others at the time. Officers who assist emergency medical personnel under these circumstances are acting within the scope of governmental immunity for law enforcement purposes under the Act. Daggett v. Indiana State Police, No. 34A02-0401-CV-45, 812 N.E.2d 1151 (Ind. App. 2004).

Domestic Violence

     Even if employees of the county sheriff's officers were negligent in failing to arrest a husband before he shot and wounded his wife, the department was immune from a lawsuit under Mississippi state law under a statute, A.M.C. Sec. 11-46-9(1)(c) providing that a government entity is not liable for any claim in the absence of conduct by an employee acting in "reckless disregard" of the safety of others. The wife had previously signed a criminal affidavit against her husband for domestic violence, and a judge signed a warrant for his arrest, but this was allegedly never delivered to the county sheriff's department prior to the shooting incident. Collins v. Tallahatchie County, No. 2003-CA-01377-SCT, 876 So. 2d 284 (Miss. 2004).

     Domestic violence arrestee whose bail was increased from $50,000 (listed in the county's felony bail schedule) to $1 million based on a request from a deputy sheriff was not entitled to damages on his claim that this constituted unconstitutionally excessive bail. First, the bail was not unconstitutionally excessive in violation of the Eighth Amendment, in light of the injuries the arrestee's alleged victim had suffered. Second, the deputy, and his supervisor, who approved the request, were entitled to qualified immunity as there was no clearly established violation of constitutional rights, and they could reasonably have believed both that there was a risk of flight by the arrestee and that he posed a danger to his alleged victim. None of the information they provided to the judicial officer who made the decision to increase the bail was false. Galen v. County of Los Angeles, 322 F. Supp. 2d 1045 (C.D. Cal. 2004).

False Arrest/Imprisonment: No Warrant

     Deputy had probable cause to arrest a motorist for alleged involvement in an accident causing bodily injury to a person after he received a dispatch concerning a hit-and-run accident which included the license number and approximate location of the vehicle, and the make and model of the car. The officer, at the time, had no reason to question the information in the dispatch, and the fact that it subsequently was shown that the motorist was not involved in the accident did not alter the result. Factual questions requiring further proceedings existed, however, concerning whether the deputy used excessive force in the course of making the arrest, and whether there was probable cause to institute a proceeding against the driver for negligent driving. Hines v. French, #1784, 852 A.2d 1047 (Md. App. 2004). [PDF]

     Officers reasonably relied on confidential informant's identification of man in photograph as the person from whom she had purchased drugs on three occasions in arresting suspect, particularly after grand jury indicted him on the basis of the information. The informant had proved reliable in the past, and there were no prior difficulties in the arrest and prosecutions of drug dealers she had identified. Ayers v. Davidson, No. 03-6095, 101 Fed. Appx. 595 (6th Cir. 2004).

     Success on an arrestee's claim that she was arrested without probable cause for aggravated assault and unlawful use of a weapon following an argument with an officer in order to silence her political speech would imply the invalidity of her criminal conviction for assault. She was therefore barred from pursuing a federal civil rights claim over the arrest until and unless she succeeded in having that conviction overturned, under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Minson v. Village of Hopedale, #03-3507, 102 Fed. Appx. 42 (7th Cir. 2004).

     Woman's arrest for criminal trespass for entering a restricted area where then President Clinton was delivering a speech, and refusing to leave when asked to do so was supported by probable cause. The purpose of the initial stop of the arrestee, which was aimed at protecting a U.S. President from any potential threats supported a "greater intrusion" on the plaintiff's Fourth Amendment rights than would be allowable under other circumstances. The arrestee was carrying no identification and was dressed in a uniform similar to the ones that security guards at that location were wearing. Kampinen v. Martinez, No. 03-3221, 102 Fed. Appx. 492 (7th Cir. 2004).

     Police officer had probable cause to arrest woman for disorderly conduct and harassment after he received complaints about someone randomly ringing doorbells at a condominium complex in the early morning hours. He had observed her at the location, she matched the description given of the suspect, and she told him that she had gotten lost and had rung several doorbells at the building. The officer was not required to give any credence to her explanation. Straub v. Kilgore, 100 Fed. Appx. 379 (6th Cir. 2004).

False Arrest/Imprisonment: Unlawful Detention

     Deputy sheriffs did not violate an apparently intoxicated individual's rights by detaining him and transporting him to the hospital, despite having no reason to suspect that he committed any crime. Under the deputies' "community caretaking" function, they were justified in detaining him when he was found walking along a roadway in a rural area in the winter without proper winter clothing. Additionally, they were justified in assisting, at the hospital, with his involuntary catheterization, when they were merely helping medical personnel to carry out health care decisions to which they did not assist in making. Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064 (N.D. Iowa 2004).

False Arrest/Imprisonment: Warrant

     Deputy U.S. marshal acted in an objectively reasonable manner in making a capias arrest under a valid civil arrest warrant for the purposes of enforcing a lawful subpoena obtained by the U.S. government on behalf of the Department of Transportation in a pending enforcement case in which the arrestee had failed to respond to the subpoena. Additionally, the arrestee was barred under the doctrine of collateral estoppel from pursuing his civil rights claims concerning his arrest and custody by the deputy U.S. marshal under the warrant, since the court in the enforcement action had already ruled on those issues in a "show cause" hearing held following the arrest. Eck v. Gallucci, 321 F. Supp. 2d 368 (D. Conn. 2004).

Federal Tort Claims Act

     Wife who was attacked and injured by her husband when he escaped from the custody of the U.S. Marshals Service after allegedly violating a domestic violence order of protection could not pursue her lawsuit against the Marshals Service and U.S. government when she failed to exhaust available administrative remedies under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, 2671 et seq. She also could not pursue federal civil rights claims against federal officials under 42 U.S.C. Sec. 1983 in the absence of any allegation that they acted under color of state law. Cureton v. U.S. Marshal Service, 322 F. Supp. 2d 23 (D.D.C. 2004).

Firearms Related: Intentional Use

     Police officer did not use excessive force in drawing and pointing his gun at occupants of a vehicle even though they were not resisting in any way and had only committed a traffic violation, when they had guns in the vehicle and were in a high-crime neighborhood at 1 a.m. in the morning. Ready v. City of Mesa, #02-17102, 89 Fed. Appx. 44 (9th Cir. 2004).

First Amendment

     City ordinance creating an offense of knowing and willful "abusive or derogatory" conduct towards police officers was not a violation of an arrestee's First Amendment rights. It was not unconstitutionally overbroad, and the court could narrowly construe it to only prohibit "fighting words" which are unprotected speech. Appeals court upholds conviction of Ohio resident for referring to a police officer as a "the real cock sucker." State v. Baker, No. CA2002-11-286, 809 N.E.2d 67 (Ohio App. 12th Dist. 2004).

Freedom of Information

     Information that civil liberties organization sought under Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, concerning the number of times FBI offices had requested permission under the USA Patriot Act, 50 U.S.C. Sec. 1861, to compel the disclosure of business records sought for authorized investigations of terrorist activity could be withheld under a national security exemption to the FOIA, 5 U.S.C. Sec. 552(b)(1). Disclosure of this information could indicate the FBI's allocation of resources in combating terrorism, which might assist the country's enemies. ACLU v. U.S. Department of Justice, 321 F. Supp. 2d 24 (D.D.C. 2004).

Malicious Prosecution

     Despite a man's acquittal on a charge of murdering his spouse, his conviction on charges of domestic violence arising out of the same facts showed that there was probable cause for his arrest and prosecution, barring his claim for malicious prosecution. Garrett v. Fisher Titus Hospital, 318 F. Supp. 2d 562 (N.D. Ohio 2004).

     Arrestee's indictment by a grand jury established a rebuttable presumption that his arrest was supported by probable cause, which barred his claim for malicious prosecution, in the absence of any showing that the indictment was obtained by bad faith police conduct, suppression of evidence by the officers, or was the product of perjury or fraud. Wiggins v. Buffalo Police Department, 320 F. Supp. 2d 53 (W.D.N.Y. 2004).

Public Protection: Minors

     State agency's alleged delay in reporting allegations of sexual abuse of minor to law enforcement could not be the basis for a federal civil rights lawsuit seeking damages for the subsequent alleged murder of the minor by the alleged abuser. This conduct did not create the danger to the minor, who remained in the custody of her mother, who was aware of the allegations of abuse. Estate of Pond v. Oregon, 322 F. Supp. 2d 1161 (D. Ore. 2004).

Racial or National Origin Discrimination

     African-American man convicted of assault and rape and imprisoned for a time, but subsequently exonerated of the charges did not present any evidence that the city and its police department had a widespread practice or custom of racial discrimination or allowing officers to deny persons their civil rights, as required for the imposition of municipal liability for his arrest and prosecution. Alexander v. City of South Bend, 320 F. Supp. 2d 761 (N.D. Ind. 2004).

     New Jersey appeals court rules that township police department, including its building and an individual officer, were a "place of public accommodation" under a state civil rights statute, so that an arrestee could pursue his claim against them that he had been subjected to racial discrimination by being denied "accommodations, advantages, facilities or privileges" on account of race. Ptaszynski v. Uwaneme, 853 A.2d 288 (N.J. Super. A.D. 2004).

Search and Seizure: Home/Business

     Dancers at sexually-oriented dance club had a reasonable expectation of privacy in their dressing room, so that officers who came to the club to see if it was complying with a city ordinance regulating such businesses violated the Fourth Amendment by making a warrantless search of the dressing room. Federal court also rejects argument that the warrantless search of the dressing room was a valid warrantless "administrative search." The police officers who conducted the search were also not entitled to qualified immunity because there was clearly established law that officers may not, without a warrant, enter any area in which there is a reasonable expectation of privacy, in the absence of a specific exception to that principle Bevan v. Smartt, 316 F. Supp. 2d 1153 (D. Utah. 2004).

Search and Seizure: Search Warrant

     Search warrant for a journalist's home, obtained in order to find videos and three still photographs concerning the terrorist bombing nine years earlier of the Oklahoma City Federal Building, was overbroad in violation of the Fourth Amendment, since it authorized the seizure of "virtually every" piece of computer equipment, every computer file or document, and other things in the home which could not contain the photographs or videos sought, including letters. Additionally, the warrant was not supported by probable cause because the information on which it was based was "stale," consisting of statements by a third party who told law enforcement officers that he had seen the photos and video six years before, and at a location other than the journalist's home. The journalist was not accused of any crime and had stated, before the warrant issued, that the material in question had been turned over by him to Congress. Journalist was entitled to summary judgment on his Fourth Amendment claim that the officers lacked probable cause to search his home, and the officers who obtained the warrant were not entitled to qualified immunity. Arkansas Chronicle v. Easley, 321 F. Supp. 2d 776 (E.D. Va. 2004).

Search and Seizure: Vehicle

     Officer's suspicion that vehicle was speeding was objectively reasonable despite his reliance on his own observations rather than on use of radar device when he followed the vehicle for approximately a third of a mile to confirm that it was traveling at an excessive speed. His stop of the vehicle was therefore proper, and the officer acted properly in directing a passenger to exit the vehicle following the valid stop when the car contained four persons and the stop was in a "high-crime" area. Further proceedings were needed, however, on passenger's claim that the officer used excessive force against him in the course of the stop and on the issue of whether the passenger cooperated with the officer's instructions or was validly arrested for obstruction of justice. Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Va. 2004).

Strip Searches

     An arrestee who was subjected to a body cavity search for drugs after being arrested for a misdemeanor charge of marijuana possession and then released was not entitled to an injunction against the city's practice of conducting such searches. The trial court had not certified a class action in the case, and unless the same series of events were to occur to the plaintiff again, there was no present controversy between him and the city concerning its handling of future arrests. The plaintiff could pursue his claim for money damages, and if the trial court ruled that the practice involved was unconstitutional, the appeals court stated, the city would have to "cease" the practice "whether or not a formal injunction issues." Campbell v. Miller, #03-3018, 373 F.3d 834 (7th Cir. 2004). [PDF]

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

     Reference:

     Anti law enforcement website: "Who's A Rat" is a database of criminal informants and law enforcement personnel that can be accessed by criminal defense attorneys, defendants and other registered site users.

     Publication: "BLUEPRINT FOR ACTION: The FBI's Strategic Plan, 2004-2009." 132 pgs. (Aug. 9, 2004). [PDF].

     Publication: "Getting Results – Managing the Mission at the U.S. Department of Justice." 12 pgs. (August 09, 2004). Full Document [PDF], Brochure [PDF], Multimedia Presentation.

     Statistics: "The FBI Workforce By the Numbers." (Aug. 25, 2004).

     Statistics: The Sourcebook of Criminal Justice Statistics, 2002 (August 2004). Visit Sourcebook Online which is updated as new material becomes available. The Sourcebook of Criminal Justice Statistics, 2002, the 30th edition, presents a broad spectrum of criminal justice data from more than 100 sources in 6 sections: characteristics of the criminal justice systems, public attitudes toward crime and criminal justice topics, the nature and distribution of known offenses, characteristics and distribution of persons arrested, judicial processing of defendants, and persons under correctional supervision. Nearly all the data presented are nationwide in scope and, where possible, they are displayed by regions, States, and cities to increase their value for local decision-makers and for comparative analyses. The report includes over 600 tables, figures, subject index, annotated bibliography, technical appendixes with definitions and methodology, and list of source publishers and their addresses. To order: Printed copies are available for a postage and handling charge of $9.00 for U.S. buyers and $39.00 for buyers from Canada and other countries. NCJ 203301. A CD-ROM of the 1994, 1995, 1996, 1997-1998, 1999, 2000, 2001, and 2002 editions is available for a postage and handling charge of $9.00 for U.S. buyers and $39.00 for buyers from Canada and other countries. NCJ 203302.

     Testimony: "Information and Intelligence Sharing: FBI Report Card to Congress," (August 23, 2004). The text of the August 17, 2004 testimony of FBI Executive Assistant Director Maureen Baginski before the House Select Committee on Homeland Security discussing progress on the information-sharing recommendations of the 9-11 Commission.

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

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