CONTENTS

Adult nightclub seeking to feature nude or semi-nude dancers was a "prevailing party" entitled to an award of $49,175 in attorneys' fees despite the fact that their civil rights lawsuit against a restrictive zoning ordinance was dismissed as moot after the defendant county repealed the challenged restriction. Federal appeals court notes that the repeal came only after the trial court had already ruled on the merits of the challenge, and that the trial court only delayed entering a final order to allow the county a continuance to make the change to the law.

     A federal appeals court ruled that a strip club that challenged the constitutionality of "adult entertainment" zoning regulations which would have prevented it from opening was a "prevailing party" entitled to an award of attorneys' fees under 42 U.S.C. Sec. 1988 when, after it achieved partial summary judgment on the merits of some of its challenges to local zoning restrictions, the municipality acted to moot the case by repealing the ordinance in question, resulting in a final dismissal for mootness. The trial court awarded $49,175.00 in attorneys' fees and the appeals court rejected the argument that this award was inappropriate based on prior case law rejecting the "catalyst" theory of liability for attorneys' fees awards.

     The case involved plaintiffs who sought to open an "adult entertainment" nightclub or cabaret in DuPage County, Illinois, featuring nude or semi-nude dancers. The County's zoning ordinance required such businesses to be located in designated "industrial" zones and banned them from locating within 1,000 feet of other adult businesses, or churches, schools, libraries, parks, or other publicly operated recreational facilities, as well as within 1,000 feet of residentially zoned districts. The ordinance stated that it was aimed at eliminating the adverse effects of such businesses, such as the "blighting or downgrading" of surrounding neighborhoods. While an original ordinance, adopting a 500-feet separation requirement had been based on a study of such effects, no new studies were conducted or evaluated before the 1,000-feet restriction was adopted, mirroring a similar restriction in a state law then adopted, which also failed to rely on particular studies.

     The land the plaintiffs sought to open their business on complied with all requirements except that it was 735 feet, i.e., more than 500, but less than 1,000 feet, from the boundary of a forest preserve, much of which is not accessible to the public. The plaintiffs therefore believed that the ordinance would prevent the nightclub's opening. The plaintiffs sued, claiming that the 1,000-feet separation requirement, as applied to the forest preserve, was facially unconstitutional because it was unsupported by a substantial governmental interest, was unconstitutional as applied to the plaintiffs, and was facially unconstitutional because it would have the effect of completely banning First Amendment protected speech in DuPage County. They argued that the effect of the 1,000-feet separation restriction was that there was nowhere where an adult business was allowed.

     The trial court agreed, after dismissing the state as a defendant because of Eleventh Amendment immunity, finding that the local zoning forest preserve separation requirement was "neither supported by a significant government interest nor narrowly tailored because neither entity presented any evidence or prior case law to demonstrate that strip clubs negatively impact areas of forest preserves not open to the public," and because the restriction failed to leave open "reasonable alternative means of communication." The ruling declared only the portion of the ordinance referring to "forest preserves" unconstitutional.

     Intending to avoid further litigation, the county then informed the trial court and the plaintiffs that, instead of appeal, the offending portion of the ordinance would be amended or repealed. The trial court continued the case, rather than entering a final order to officially close the case. The forest preserve separation requirement was repealed as promised, and the plaintiffs were therefore free to operate their proposed nightclub, and the trial court dismissed the lawsuit as moot.

     In a prior case, Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resource, #99-1848, 532 U.S. 598 (2001), the U.S. Supreme Court rejected the "catalyst" theory of entitlement to awards of attorneys' fees for prevailing parties, upholding a denial of attorneys' fees in a case where a defendant "voluntarily" mooted the action in response to litigation. Specifically rejecting the "catalyst theory," the Court emphasized that a defendant's voluntary change in conduct, "although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." The Court held that, in order to be a "prevailing party," a litigant must have obtained a judgment on the merits, a consent decree, or some other judicially sanctioned change in the legal relationship of the parties.

     After the trial court awarded attorneys' fees to the plaintiffs in the immediate case, the defendants argued that this principal, as stated in Buckhannon, made the award inappropriate, because the partial summary judgment pertaining to the forest preserve provisions in the county ordinance never became final or enforceable before the case was dismissed for mootness. Rejecting this argument, a federal court stated:

We disagree. It would defy reason and contradict the definition of "prevailing party" under Buckhannon and our subsequent precedent to hold that simply because the district court abstained from entering a final order formally closing the case--a result of the defendant's assertions that it would repeal the challenged portion of the ordinance--Palmetto somehow did not obtain a "judicially sanctioned change" in the parties' legal relationship. In Buckhannon, the challenged state law was repealed, thereby mooting the case, before the district court made any substantive rulings. Thus, the Buckhannon Court construed the change in the defendants' conduct as voluntary, lacking the necessary judicial imprimatur. In this case, not only did the district court make a substantive determination as to essentially all the constitutional claims save one, the County repealed the ordinance only after that determination had been made and presumably because of it. To be sure, the Defendants were free to moot the case before the summary-judgment ruling, in which case the action would have been voluntary. They did not. Hence, their action is most persuasively construed as involuntary--indeed exhibiting judicial imprimatur.

     Holding otherwise, the appeals court reasoned, would be inequitable and "promote inefficiency," because "plaintiffs who have succeeded on the merits would be encouraged to rush forward with potentially unnecessary litigation, solely to preserve their entitlement to fees." The county's argument, the court stated, "values form over substance." The trial court's summary judgment rulings would have been appealable had the trial court simply entered a final order formally closing the case, and the only reason it did not do so was because the county requested a continuance so that it could moot the case.

It would fly in the face of legal intuit to conclude that the district court's partial grant of a summary judgment would not constitute a "judgment on the merits" adequate to confer "prevailing party" status upon Palmetto, simply because--at the County's behest--the district court delayed in entering a final order to close the case.

     The appeals court therefore upheld the award of $49,175 in attorneys' fees to the plaintiff.

     Palmetto Properties, Inc. v. County of DuPage, No. 03-2174, 2004 U.S. App. Lexis 13952 (7th Cir.).

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Police officers' actions in shooting and killing a deaf man armed with a rifle in a parking lot who intended to protest discriminatory treatment of disabled people did not constitute disability discrimination under the Americans with Disabilities Act (ADA). The shooting occurred because the decedent's actions threatened others, not because of his disability.

     A deaf man with a history of psychiatric problems showed up in a parking lot in a large public shopping plaza in the middle of the day armed with a high-powered rifle, intending to stage a protest over the treatment of the disabled. Police officers arrived on the scene and surrounded him and sought to get him to drop his weapon, which he refused to do.

The standoff continued for a while and the officers ultimately shot and killed the man. A federal civil rights lawsuit on the incident asserted a number of claims, including the assertion that this was excessive use of force. One of the claims was that the officers' conduct constituted disability discrimination because of the decedent's audio disability. The plaintiffs argued that the officers had a duty under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, to reasonably accommodate the man's deafness in order to be able to communicate with him, and argued that the failure to have one or more officers trained and proficient in American Sign Language (ASL) would have altered the outcome of the incident.

     The magistrate, whose report the trial court adopted, found that what a police chief did in permitting a number of officers to surround the man with their weapons drawn was objectively reasonable under the circumstances.

     The plaintiffs argued that the man was "staging a peaceful and lawful protest," since his rifle was shouldered, its muzzle pointing skyward, and he signaled in gestures and words that he did not intend to hurt the officers. The court noted, however, that the man was armed with a high-powered rifle capable of striking someone inside one of the stores in the plaza or an object as far away as a nearby highway. "No one could predict" his actions, the court stated, and no one could know whether he would "decide to fire his weapon or even accidentally discharge it." Accordingly, whatever his "subjective intentions," his conduct was "provocative, and the situation inherently posed an appreciable public safety risk."

     The officers shot and killed the man because of his actions and the risk to the officers and others because of his possession of the weapon and refusal to relinquish it, not because of his disability of deafness, the court found.

     The court found no duty on the part of the officers to "reasonably accommodate" the decedent's hearing disability during the duration of the standoff. No reasonable fact-finder, the court stated, could find that the area had been secured and that the threat to human life had ended at any point prior to the end of the standoff. While the ADA was passed to prevent the discrimination against disabled individuals Congress did not intend that the fulfillment of that goal be achieved at the "expense of the safety of the general public."

     The defendants were entitled to summary judgment on the ADA claim. Vincent v. Town of Scarborough, #02-239, 2003 U.S. Dist. Lexis 20910; confirmed, 2003 U.S. Dist. Lexis 22934 (D. Me. 2003).

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Federal appeals court, in case where estranged husband took and murdered his three minor daughters, in violation of domestic protection order, rules that such an order, when enforcement is required by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment. Claims against city for failing to enforce order are reinstated, but individual officers were entitled to qualified immunity.

     A Colorado woman got a court-ordered domestic protection restraining order limiting her estranged husband's ability to have contact with her and their three daughters, who were ten, nine, and seven. The order was issued by a state court under Colo. Rev. Stat. 14-10-108, and ordered that the husband not "molest or disturb the peace" of his wife or any child. He was directed to stay at least 100 yards away from the wife's home. The order also stated that law enforcement officers "shall use every reasonable means to enforce" the order and "shall arrest," or, where impractical, seek an arrest warrant for the husband if he violates the order, and "shall take" him to the nearest jail or detention facility.

     As required by state law, the order was entered into the state's central registry for such orders. The order was also served on the husband, and later altered to allow the husband certain limited visitation.

     Despite the terms of the order, on a Tuesday afternoon at approximately 5 p.m., he abducted the three girls while they were playing outside their home. The wife suspected that her husband, who had a history of "erratic behavior" and "suicidal threats," had taken them, and she made a phone call to the police department seeking enforcement of the restraining order.

     She showed officers who arrived at her home a copy of the order and they allegedly told her that there was nothing they could do and suggested that she call the police department again if the children were not home by 10 p.m. An hour later, she spoke to her husband on his cell phone, and he told her he was with the girls at an amusement park in Denver. She immediately again called the police department and spoke with an officer, requesting that the police find and arrest her husband, which the officer allegedly refused to do, again suggesting that she wait until 10 p.m. to see if the girls returned. When she called again at 10 p.m., she was allegedly told to wait until midnight to see if they returned.

     She called the police again at midnight, and then went herself to her husband's apartment and found no one there. She called police from there, and was told to wait at the apartment until officers arrived. When none did, she went to the police station where she met with an officer who took an incident report but allegedly made no further effort to find her children or enforce the restraining order, instead going to dinner.

     Her husband arrived at the police station in his truck at 3:20 a.m., eight hours after his wife had first contacted the police. He got out of his vehicle and shot at the station with a semi-automatic handgun he had purchased soon after abducting his daughters. Police officers shot him dead, and then found the bodies of the three girls in the cab of the truck. Their father had murdered them earlier in the evening.

     The mother's lawsuit on behalf of herself and her three deceased daughters claimed that the officers' failure to enforce the restraining order against her husband violated her due process rights, and that the city had a custom and policy of failing to respond properly to complaints of domestic restraining order violations and tolerated the non-enforcement of such protective orders by police officers, resulting in the reckless disregard of a person's right to police protection granted by such orders.

     The trial court dismissed the lawsuit, finding that the plaintiff failed to state a valid claim under the Fourteenth Amendment for the deprivation of either substantive or procedure due process. A three-judge panel of a federal appeals court upheld the dismissal of the substantive due process claim, but reversed on the dismissal of the procedural due process determination.

     The appeals court panel held the restraining order, coupled with the Colorado statute mandating the enforcement of such orders, see Colo. Rev. Stat. 18-6-803.5(3), established a protected property interest in the enforcement of the restraining order which could not be taken away by the government without procedural due process. The full appeals court granted a rehearing en banc, following a request from the city and police officers.

     On rehearing, the majority of the full appeals court ruled that the panel's decision was correct. While federal constitutional law does not impose on state and local law enforcement an affirmative duty to protect individual citizens from violence by private persons, the court noted, this "does not foreclose a state from creating through its own laws an entitlement for particular citizens in having their court-issued restraining orders enforced."

     The appeals court found that Colorado state law, by its mandatory language concerning the enforcement of the terms of domestic protection orders, created a protected property interest in the enforcement of the terms of such an order, and that the "officers' arbitrary denial of that entitlement violated her procedural due process rights." The mandatory language of the statute and order entitled the plaintiff to rely on its enforcement.

     This was not based, the court stated, from the statute alone, but that, rather, "the statute's force derives from the existence of a restraining order issued by a court on behalf of a particular person and directed at specific individuals and the police."

     The appeals court also disagreed with the trial courts conclusion that any duty imposed upon police officers to enforce restraining orders is triggered only upon an officer's probable cause determination that the restraining order was being violated, which requires the use of judgment and discretion.

The district court is incorrect. There can be no question that the restraining order here mandated the arrest of Mr. Gonzales under specified circumstances, or at a minimum required the use of reasonable means to enforce the order. Those circumstances were defined by the restraining order which told the police what its objective terms were and commanded that an arrest occur upon an officer's probable cause determination that the order was being violated and that Mr. Gonzales had notice of the order. The restraining order here specifically directed, with only the narrowest of exceptions, that Mr. Gonzales stay away from Ms. Gonzales and her daughters. Thus, the restraining order provided objective predicates which, when present, mandated enforcement of its terms.

   Because the trial court dismissed the plaintiff's procedural due process claim based on its conclusion that she did not possess a protected property right, the court noted, "it did not reach the second prong of the procedural due process analysis, that is, what process is due." But if the plaintiff's complaint was true, she did not receive any process whatsoever prior to the deprivation of her interest in enforcement of the restraining order. Instead, the officers repeatedly ignored and refused her requests for enforcement."

     The court found that the plaintiff had stated a claim for municipal liability against the city on the basis of an official policy or custom of failing to respond properly to complaints of restraining order violations, but also held that the individual defendant police officer defendants were entitled to qualified immunity from liability, since the law on the subject was not "clearly established" at the time of the incidents at issue.

     Gonzales v. Castle Rock, #01-1053, 366 F.3d 1093 (10th Cir. en banc, 2004).

     » Click here to read the text of the case on the Internet. [Note that the file on the Internet contains both the original appeals court decision, and the final en banc decision reported on above].

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Deputies had probable cause to arrest woman's stepfather for disorderly conduct for yelling obscenities and other "fighting words" at her and her husband in the morning after being involved in a domestic dispute with them the evening before.

     A man and his wife, along with their two children were close neighbors of his wife's mother and stepfather, and the homes were only approximately 70 yards apart. The two families, however, had a history of animosity towards each other, which sometimes necessitated the involvement of law enforcement officers to intervene in disturbances between them. This included disputes during which knives were displayed and verbal threats were made.

     Responding to a 911 call from the man's wife reporting another domestic disturbance between her husband and her stepfather, deputies came to the residence. She informed them that when her husband was leaving for work, her stepfather shouted several obscenities from his residence directed at her and her husband, although she refused to repeat the exact language. The deputies contacted the husband on the phone and he informed them that his wife's stepfather had shouted "fuck you" three or four times, called him a "fat son of a bitch" and made noises that sounded like a clucking chicken. He also mentioned that during an altercation the previous evening the stepfather had allegedly brandished a butcher knife.

     The deputies proceeded to the stepfather's home, where they spoke to him in his living room. It was disputed whether they had consent to enter, or were admitted by a child. After interviewing him, they arrested him for disorderly conduct, a misdemeanor in Illinois under 720 Ill. Comp. Stat. 5/26-1(a)(1)), based upon his alleged profane and combative statements of "fuck you, fuck you, fuck you, fat son-of-a-bitch." On the first day of a jury trial, the prosecutor voluntarily dismissed the disorderly conduct charge.

     The arrestee subsequently filed a federal civil rights lawsuit against the deputies, claiming that they improperly entered his home without consent or a warrant and arrested him without probable cause. A jury found in favor of the defendant officers on both claims after the trial court denied the plaintiff's motion for a directed verdict in his favor.

     Upholding this result, a federal appeals court noted that the issue of whether the arrestee voluntarily consented to the warrantless entry of his home or the officers improperly entered without proper authority (as a small child would not have authority to "consent") was a question of credibility for the jury to determine. The appeals court would not, therefore, based on the contradictory stories, interfere with the jury's apparent belief in the officers' version of the story.

     The appeals court also found that the deputies had problem cause to arrest the stepfather for disorderly conduct, which is defined under Illinois law as knowingly doing "any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace."

     The appeals court expressed its view that, in the context of the family conflict that plagued the two families, "we are confident (as was the jury) that the deputies had probable cause to conclude that" the stepfather's conduct directed at the other family in the early morning rose to the level of disorderly conduct.

     At the time of the arrest, the deputies were "personally well aware" of the history of tension between the stepfather and the other family. They were told that he had brandished a butcher knife in the presence of the complaining family the night before, as well as told of his "obscene and overly aggressive language used the following morning," which was an attempt to provoke a violent reaction.

     In light of these circumstances, a rational jury could certainly find that the deputies reasonably believe that the stepfather knowingly acted in an unreasonable manner to provoke a breach of the peace. Indeed, this type of behavior "seems to be exactly the type that" the statute was designed to address.

     The appeals court rejected the argument that the trial court should have directed a verdict in the plaintiff's favor because he had a First Amendment free speech right to yell the foul language at his neighbors. The court noted that "fighting words" which are insulting and provoke a breach of the peace can constitute disorderly conduct in particular circumstances.

     Gower v. Vercler, No. 02-4112, 2004 U.S. App. Lexis 15281 (7th Cir.).

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Police officers could justifiably rely upon a "credible complaint" by an alleged student victim of sexual molestation by a teacher as probable cause for an arrest. The fact that the complainant was a "special education" student did not alter the result when the detective who prepared the affidavit for the arrest warrant found him credible.

     "How deep must a police investigation extend before there is sufficient probable cause for the arrest of a school teacher accused of sexually molesting a student?," was the question a federal appeals court found at the heart of a federal civil rights lawsuit filed by an arrested teacher. "At stake is the professional career and reputation of a high school teacher on one hand, and on the other the safety, health, and moral values of the student. Caught between the two are the police officers called to investigate and, if warranted, to arrest for prosecution."

     The case involved a fifteen-year-old male high-school student who complained to his principal that his special education teacher had sexually molested him in class. This resulted in an investigation and the arrest of the teacher by police officers. The charges against the teacher were ultimately dismissed, and he then filed a federal civil rights lawsuit against the city, the police department and individual officers claiming that his arrest had been without probable cause.

     A federal appeals court upheld the trial court's determination that the officers had probable cause for the teacher's arrest. The arrest was based on the student's statements to his principal and his mother and to a police detective, and his mother's statement that her son had complained in the past about the teacher rubbing his shoulders and thigh. Detectives asked the teacher on the phone to come to the police station and he initially declined because he could not reach his attorney, but he later agreed to voluntarily come to the police station where he was arrested and charged with second-degree sexual assault.

     One of the detectives prepared an affidavit in support of the arrest warrant after he received the complaint from the student and verified the incident with the boy's mother and the school principal. He did not interview the teacher, a teaching assistant or other students present in the classroom at the time of the alleged incident but stated that he found the student to be credible.

     The officer did not include in the affidavit an explanation that Montella was a special needs student taking Ritalin for his Attention Deficit Hyperactivity Disorder, nor did he indicate that there were other students in the classroom during the alleged incident who may have witnessed the event. A Rhode Island bail commissioner reviewed the affidavit, found probable cause to arrest the teacher, and signed the warrant.

     After the arrest, the school district investigated the allegation and found that there was "no credible evidence" that the student was sexually fondled by the teacher in the "Life Skills Class." The prosecutor subsequently declined to prosecute.

     Despite this, the appeals court ruled, the detective could justifiably rely on the credible statement of the alleged victim in finding probable cause for the arrest. The appeals court rejected the argument that the accusation was inherently unreliable because the student alleged that the incident occurred in front of an entire classroom of students and a teaching aide, none of whom were interviewed prior to the arrest. The student did not claim that the teacher molested him "in clear view," but in a location where most people in the room would not have had a clear view. Additionally, the student stated that the teacher was commenting on, and touching his jacket when the alleged molestation occurred, so that it was reasonable for the detective to conclude that even an eyewitness would not necessarily have recognized any inappropriate touching.

     The appeals court also rejected the argument that the student's credibility should have been questioned because he was a special needs student. There was no evidence, the court ruled, that his condition of Attention Deficit and Hyperactivity Disorder, and his prescription of Ritalin, had any effect on his credibility. Instead, the detective, knowing this, believed that the student was not mentally incapacitated in any relevant manner, and made an independent determination that the student was "fairly intelligent and credible."

     The appeals court rejected the argument that officers had to interview all readily available witnesses before seeking and making an arrest. The law is clear, the court held, that once police officers are presented with probable cause to support an arrest, no further investigation is required at that point. As for the facts allegedly withheld from the affidavit for the warrant, the court found that they did not alter the presence of probable cause, as there were only five students in the class, and the alleged molestation was supposedly carried out surreptitiously.

     Forest v. Pawtucket Police Dept., No. 03-2652, 2004 U.S. App. Lexis 15527 (1st Cir.).

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Jury verdict awarding damages on the basis of officer's alleged unreasonable use of deadly force in shooting and killing a woman armed with two knives inside her house with family members upheld. Intermediate California appeals court, however, rules that city, while vicariously liable for officer's actions, could not be held liable on theories of inadequate training or supervision or other "direct negligence" theories, in the absence of a clear statutory duty which was breached.

     A woman in California was shot and killed by a Union City, California police officer after her brother summoned police assistance to the house in which she was located with her father and daughter. The woman was armed with two knives and under the influence of methamphetamine. Her surviving relatives filed a lawsuit in state court asserting claims for negligence and battery, and the jury returned a verdict against both the city and the shooting officer, awarding a total of $1,935,600 in damages and apportioning the negligence it found caused the damages as 50% to the shooting officer, 45% to the city, and 5 percent to the decedent.

     On the day of the shooting incident, the decedent had allegedly called her brother's house and seemed to be hallucinating. When the brother went to the house, he noticed that she had a knife in each hand, and told him that she was armed in this manner because she was afraid of someone in the back room whom she referred to as "Uncle George," although there was no one there. The police were called by the brother, who reported that his sister was under the influence of something and was in possession of a knife, expressing concern that she might harm herself and concern about his father and niece, who were in the house with his sister.

     Officers who arrived at the house spoke to the woman from outside the open front door, and she told them to "stay back, don't come any closer," and accused them of being there to "hurt me." She allegedly jumped up and down, moving her hands and arms around, allowing the officers to see what appeared to be a steak knife in her left hand. The officers believed that the woman was "completely irrational" and unpredictable and that the other people in the house were in danger.

     Another officer arrived on the scene and attempted to coax the woman into putting down the weapons and coming outside to talk to him, but she would not. The woman was sporadically pointing the knife at her father, gesturing in a threatening manner. She told the officer, "I am going to stop my father from hurting me. He is not going to hurt me any more," and she then made a movement forward, thrusting with the knife. He claimed that he also believed that she had a gun in her other hand, although he could not see that hand. Thinking she was going to kill her father and daughter, the officer shot five times, until she stopped. She subsequently died.

     The officer later testified that when he fired the first shot, the woman had moved six inches from the front door and he estimated she was ten feet from where her father and daughter had disappeared from view, a distance he felt she would cover in two seconds. He stated that he shot to stop the threat and denied having done so with the intent to kill.

     An intermediate California appeals court affirmed the jury award in part, ruling that the jury could find that the officer used deadly force in an unreasonable manner under the circumstances, for which the city was vicariously liable. The appeals court reversed, however, the portion of the jury's verdict against the city based on its alleged direct negligence because there was no showing by the plaintiffs of a violation of a statutory duty by the city.

     In this case, an expert witness offered an opinion that the strategy the shooting officer employed was "unreasonable in a number of ways," including failing to set up a perimeter to contain the situation, getting too close to the suspect, getting personally involved rather than maintaining his role as supervisor, and failing to take the time to confirm facts through relatives and neighbors. The expert further stated that it was negligent to fail to use a hostage negotiator and to fail to establish "real communication" with the woman, and to have a weapon drawn while talking with her.

     But the appeals court found that the "the need to protect the overall safety of the community by encouraging law enforcement officers to exercise their best judgment in deciding how to deal with public safety emergencies vastly outweighs the societal value of imposing tort liability for the judgments they make in emergency situations." Under California law, officers are shielded from ordinary negligence claims "based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties." The decisions as to how to deploy officers and the efforts made in an attempt to defuse the situation as safely as possible, therefore, could not impose liability on the defendants.

     But this did not end the analysis:

Here, the focus is not simply on the failure of police to prevent harm, but police conduct that directly inflicted harm.

     Police officers have a duty to use reasonable care in employing deadly force under California law. The appeals court found that the jury's award against the officer was not based on his pre-shooting response at the scene, but rather on his unreasonable use of deadly force. While the officer testified that he shot the woman because he believed she had a gun and was going to kill at least her father, there was evidence that the officer should have known that she had in fact held two knives, leaving no room in her hands for a gun. There was also evidence that the officer told the suspect to "drop the knives," indicating that he did, in fact, know that she had two, as well as evidence from which a jury could disbelieve that the officer could not see the suspect's right hand. There was also evidence from which the jury could have inferred that the officer was not reasonable in believing that the woman posed an immediate threat to her father and daughter, as a number of witnesses denied hearing her make any threat against her relatives.

     The shooting officer was the only witness who claimed to hear any verbal threat directed at the woman's family members, the court stated. The appeals court did not find it necessary to resolve whether there were reasonable alternatives to the use of deadly force under the circumstances, since the question was whether a reasonable jury could have concluded that the evidence proved the use of deadly force was unreasonable under the circumstances. The appeals court found that there was sufficient evidence from which the jury could conclude that he did not have probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others.

     As for the city's alleged direct liability, as opposed to vicarious liability for the officer's actions, however, the appeals court noted that the California Tort Claims Act provides that a "public entity is not liable for an injury," except as "otherwise provided by statute." Cal. Gov. Code, § 815, subd. (a). The complaint in the case asserted claims against the city claiming that it could have done more to prevent the confrontation from developing, either through the promulgation of clearer police procedures, or by better officer training and supervision. But the court noted that the plaintiffs did not point to any statutory basis for either declaring the city directly liable under the circumstances of the case or "at least, one creating a specific duty of care." Because of this, the portion of the award against the city (45%) for its purported direct negligence could not stand.

     Munoz v. City of Union City, No. A095846, 2004 Cal. App. Lexis 1187 (Cal. 1st App. Dist.).

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Federal appeals court upholds denial of injunction to change a designated area for demonstrators at the 2004 Democratic National Convention in Boston, finding that the trial court's ruling was proper in light of security concerns.

     A group, (the Bl(a)ck Tea Society), planning to hold demonstrations at the July 26-29, 2004 Democratic National Convention in Boston, Massachusetts sought an injunctive order to modify an area set aside by city officials as the "designated demonstration zone" or "DZ." A federal appeals court upheld the denial of the requested injunction.

     "Security at national political conventions is always tight," the court noted, "and that was especially so this year in light of heightened sensitivity to security concerns following the terrorist attacks of September 11, 2001."

     In anticipation of the possibility of problems, or even terrorist attacks at the convention, the city established a highly secure "hard zone" in the area immediately surrounding the convention center, where the U.S. Secret Service assumed principal responsibility for security, and where only candidates, delegates, staff, press, and other specially authorized persons were allowed, and even they were required to pass through magnetometers before entering. The city also established a less secure soft zone extending several blocks south," where pedestrian access to and through the soft zone was generally unrestricted (although vehicles were not allowed to enter).

     This arrangement "left little opportunity for groups wishing to demonstrate to do so within sight and sound of the delegates," especially since chartered buses, which loaded and unloaded within the hard zone, ferried the delegates to and from the convention center. In order to facilitate demonstrators' access to the delegates, the city established the DZ, on the edge of the "hard zone," and allowed demonstrations within it. The demonstrating group, however, found this "far from a perfect solution," according to the court:

It comprised a heavily secured space, approximately 90 feet by 300 feet, located for the most part underneath unused rail tracks. It was surrounded by two rows of jersey barriers topped with eight-foot chainlink fencing; the perimeter was further surrounded by a semitransparent liquid dispersion mesh fabric; and a widely-woven mesh fabric was hung above the DZ between the rail tracks and the fence. Finally, the City placed coiled razor wire along the edges of the rail tracks in the vicinity of the Fleet Center (including the area above the DZ) in order to inhibit access to the tracks. Although there were three routes of ingress and egress to and from the DZ, the aggregate effect of the security measures was to create an enclosed space that the appellant likens to a pen.

     After the plaintiff filed a lawsuit seeking an injunction requiring the city to modify the DZ, the trial judge personally inspected the area in question, held a hearing, and provided an opportunity for federal authorities to communicate with him separately concerning security matters, and then denied the injunction.

     Upholding this decision, the appeals court noted that First Amendment rights are not without limits. Reasonable restrictions on the time, place, and manner of speech in a public forum are permissible, as long as they "are justified without reference to the content of the regulated speech," are "are narrowly tailored to serve a significant governmental interest," and "leave open ample alternative channels for communication of the information." The appeals court characterized the establishment of the DZ as a time, place and manner restriction, rejecting the attempt by the plaintiffs "to ratchet up this level of scrutiny by characterizing the security measures (particularly the total prohibition of demonstrations in the hard zone) as a prior restraint on speech," which would have to be justified by a compelling governmental interest and show that it used the least restrictive means available.

     In this case, the court found, the city did not seek to "prevent speech," but rather to regulate the place and manner of its expression. The rules established were "content-neutral," as they did not distinguish between the content of the message of the demonstrators, and "there can be no doubting the substantial government interest in the maintenance of security at political conventions."

The City claims that the risk of harm was substantial. It designed the elaborate security measures here at issue in light of recent past experience with large demonstrations, including those at the 2000 Democratic National Convention in Los Angeles. The double ranks of fencing were meant to deter attempts to break through the fence; the liquid dispersal mesh was intended to protect the delegates from being sprayed with liquids; and the overhead netting was added to prevent demonstrators from hurling projectiles. Conduct of this type admittedly has occurred at a number of recent protests.

     The appeals court rejected the plaintiff's argument that the city absolutely needed to show that it had specific information that demonstrators intended to engage in such behavior in order to take measures to prevent them from taking place. At the same time, the court commented that a government agency charged with public safety responsibilities while not turning "a blind eye to past experience," also "ought not impose harsh burdens on the basis of isolated past events."

     In the immediate case, the appeals court found that the amount of "threat" evidence was sufficient to allow the trial court to "weigh it in the balance," and that the decision arrived at was not "so unreasonable as to constitute an abuse of discretion." The appeals court upheld the trial court's determination, therefore, that "the security measures undertaken by the city, though extreme, were nonetheless narrowly tailored." Further, there were many other opportunities for persons to demonstrate elsewhere, as the city allowed informal demonstrations within the "soft zone" without a permit for up to 20 people, and allowed up to 50 people there with a permit. Demonstrations could also be held elsewhere in the city, away from the convention site.

     The appeals court rejected the argument that these alternatives were not sufficient because they were not within the sight and sound of the convention delegates. It pointed out that the very purpose of the DZ was to provide an opportunity for free expression within the sight and sound of the delegates. The court also commented that the opportunity for the demonstrators to move among the delegates and distribute literature to them "would doubtless have facilitated the demonstrators' ability to reach their intended audience, there is no constitutional requirement that demonstrators be granted that sort of particularized access."

     The court also noted that messages conveyed by demonstrators are also able to reach delegates through reports on television, radio, and in newspapers, as well as on the internet. Accordingly, the appeals court could not find that the trial judge erred in concluding that viable alternative means existed to enable the protesters to promote their message to the delegates.

     Bl(a)ck Tea Society v. City of Boston, No. 04-2002, 2004 U.S. App. Lexis 15778(1st Cir.).

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An arrest of anti-abortion protesters for holding posters of mutilated fetuses was reasonable under a city ordinance making it unlawful to stand in a public place and hinder traffic, and a valid use of police power to protect public safety, and therefore did not violate the First Amendment. Arresting officers were entitled to qualified immunity.

     A number of demonstrators gathered on a Saturday morning at the intersection of two heavily trafficked roads in Kansas City, Missouri to protest abortion. They placed themselves between the sidewalk and the curb, about two or three feet from the street, and some of them held small signs, while others placed large, poster-sized signs of approximately three-by-five-feet on the ground. A number of the larger signs displayed color photos of aborted fetuses, such as one which displayed a photo of the head of a decapitated fetus on one side and a photo of the parts of a dismembered fetus on the other.

     Police officers were dispatched to the scene in response to complaints about "offensive signs," and ultimately observed that traffic was heavy and was being affected by the demonstration, with drivers who were looking at the signs "nearly running into the backs of other vehicles." One driver told the officers that she was so shocked by the photos that she slammed on her brakes and had to pull over into a parking lot in order to recover. Two motorists complained that their young children in their vehicles could easily see the signs. And motorists complained that viewing the graphic photographs had impaired their ability to "safely and properly control their vehicles."

     One of the officers then told the demonstrators that the poster-size photos were offending people passing through the intersection and thereby creating a hazard to public safety, and he asked them to move further away from the road with the large photos of the mutilated fetuses. They refused to do so, and he then told them they could stay at the same location as long as they did not display the large photos that were creating the traffic hazard. They again refused to do so. After consulting with a city attorney, officers placed five of the demonstrators under arrest for violating a city loitering ordinance which, in one provision, made it unlawful for any person to stand in a public place in "such a manner so as to obstruct any public street" by "hindering or impeding the free and uninterrupted passage" of vehicles, traffic, or pedestrians.

     In a federal civil rights lawsuit filed by the demonstrators, the trial court granted the police officers' motions for summary judgment on the basis of qualified immunity, finding that the officers had reasonably interpreted the ordinance as prohibiting conduct that distracted motorists and thereby obstructed a public street by impeding the safe flow of traffic.

     A federal appeals court, by a 2-1 vote, upheld this result, agreeing with the trial court that the First Amendment "does not entitle citizens to create safety hazards," and that the restrictions had not been imposed because of the content of the demonstrators' anti-abortion message, but "because of the deleterious effects of the manner in which they chose to express their message." Indeed, the officers had not even forbidden the demonstrators to display the large photos of mutilated fetuses, but only restricted where they could be shown in order to avoid a traffic hazard.

In this case, the police officers' conduct did "not provide for a 'heckler's veto' but rather allowed every speaker to engage freely in any expressive activity communicating all messages and viewpoints subject only to" reasonable place and manner restrictions.

     The motorists complained that viewing the photographs impaired their ability to safely drive their vehicles. "The fact that an accident had not occurred is irrelevant. The police officers were entitled to decide that the situation presented a danger before an accident occurred."

     A strong dissent by one of the three judges on the panel characterized the majority's opinion as allowing a small group of passersby "to censor, through their complaints, the content of a peaceful, stationary protest," or, in other words, violate the First Amendment by using the police to impose a "heckler's veto."

     Frye v. Kansas City, Mo., No. 03-2134, 2004 U.S. App. Lexis 15366 (8th Cir. July 26, 2004)

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Police officers and city were not liable for death of woman accidentally shot by her husband as he also shot a man attempting to sexually assault her in their home. Officers' one-hour delay in entering the home after the shooting was not deliberately indifferent to the injured woman's need for medical attention, since they could reasonably believe that entering the home would be dangerous, knowing that the man who fired the shots was inside.

     A married couple with two children in New Jersey hired the son of their cleaning lady to help prepare for their son's first birthday party. The husband, who has multiple sclerosis and is confined to a wheelchair, and is only able to walk with "great effort," heard his wife call for help from downstairs, and wheeled to the landing to see what was happening. He observed the "helper" attempting to sexually assault his wife. He activated an alarm system and retrieved his gun, as his ten-year-old daughter called 911.

     The husband fired five shots at the assailant, hitting him three times and rendering him a paraplegic. One shot, however, struck his wife in the chest. Unknown to the husband, police officers were about to enter the house in response to the 911 call when they heard the gunshots. The daughter ran out of the house and allegedly told the officers that her father had shot her mother and the "helper," who was "acting crazy."

     For over an hour, the officers did not enter the home. The husband was on the phone with the police the whole time, allegedly pleading with them to enter the home and provide medical attention to his wife. The officers allegedly continually assured him that help was on the way. When SWAT officers entered the home after a little over an hour, the wife was dead. The husband filed a federal civil rights lawsuit claiming that the officers and police department acted with deliberate indifference and violated her constitutional rights by not intervening sooner.

     The trial court granted summary judgment for the defendants and an appeals court upheld this result.

     At the time of the delay, the court noted, officers were told that the husband inside was doing the shooting, and that he had shot his wife. The officers were not entirely aware of the details of what had transpired, and the facts they knew presented the possibility of a "domestic violence" situation and resulted in a SWAT response.

     While this may have wound up with a "tragic" result, the court commented, "where the police come upon a dangerous situation but fail to act, or fail to act appropriately, courts generally do not perceive such police response as constitutionally impermissible. " Additionally, ordinarily, the government's failure to protect citizens from private violence does not violate the due process clause of the Fourteenth Amendment.

     The appeals court rejected the argument that there was a "state-created danger" here in which the officers' actions, or failure to act, created or enhanced the danger to the wife. In this case, any limitation on the crime victims' liberty was imposed by their assailant, the court reasoned, not by the police.

Here, the police had to balance two competing, protected interests, Michelle's [the wife's] right to personal security, and the right to personal security of the paramedics and police officers. ... [H]ere the only assurances the defendants had that the situation was safe came from the shooter himself. At this point, they did not know the veracity of [the] claimed assault, and had only [the daughter's] statement that her father had shot her mother as an account of what had happened inside.

     Under these circumstances, the policy of setting up a perimeter and determining that the location was safe for rescue personnel before allowing their entry into the location was not one which reflected deliberate indifference, but rather reasonably reflected "balancing the security interests of both victims and potential rescuers and a determination that police and rescue activities must be done with safety for the officers and rescuers secured before entry into an unknown and dangerous situation."

     Estate of Strumph v. Ventura, 849 A2d 105 N.J. Super. A.D. 2004).

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Federal appeals court overturns jury verdict in favor of law enforcement defendants who allegedly interfered with the efforts of private persons to rescue a man who jumped into a river, and failed to offer a reasonable alternative rescue service. Court holds that "cumulative-error" doctrine should apply to civil cases, and that a new trial was required because of a number of evidentiary errors made by the trial court.

     A man in Manistee, Michigan drowned and died after dropping from a bridge (apparently after jumping) into a local river. His surviving family claimed that the man died because city and county officials had a municipal policy which prevented qualified civilian rescue divers on the scene from saving him, even though the city and county allegedly provided "no meaningful alternative rescue service of their own."

     If true, a federal appeals court ruled, these allegations were sufficient to establish a claim for violation of the decedent's due process rights under the 14th Amendment.

     At trial, the defendants contested whether the city and county had a policy that prevented private rescuers from assisting the man, whether the rescue services made available by the defendants were sufficiently effective to constitute a "meaningful alternative" to private rescue; and whether the plaintiffs were able to show that the policy caused the death by establishing that Mr. Beck would likely have lived if private rescuers had been allowed to dive after him.

     There was evidence at the trial that the defendants had stated that all water accident scenes were to be treated as "crime scenes," with anyone entering such a scene without permission being subject to arrest. There was also evidence, however, from several local township fire chiefs who worked with the county sheriff, who stated that they had never heard of such an "arrest policy."

     In the immediate case, the decedent and another man jumped into the river, and police arrived on the scene in time to see the decedent disappear beneath the river's surface at night. They notified both the police chief ad the county dive team. A member of a private rescue organization who was also a Michigan State Police trainee and a certified diver, overheard the original 911 call reporting the decedent's plunge into the river and arrived on the scene within five minutes. Another diver arrived shortly thereafter. The county dive team also responded to the call.

     Members of the private rescue organization claimed that they consulted with officers on the scene and were told that the county "had everything under control," and that they were instructed by the police chief not to enter the water. The police chief, however, contradicted this version of events and both he and the sheriff denied issuing such instructions. The decedent's mother later arrived at the scene, and a firefighter allegedly restrained her to prevent her from attempting to rescue the man herself. While the accident scene was approximately a two-minute drive from the sheriff's office, county divers did not enter the water until nearly one hour after the decedent entered the water.

     Fourteen minutes later, the man's body was located on the floor of the river and attempts to resuscitate him were unsuccessful. There was conflicting expert witness medical testimony as to whether the man would have survived if he had been rescued earlier.

     The jury returned a verdict for the defendants. A federal appeals court ruled that a number of errors by the trial court entitled the plaintiffs to a new trial.

     The appeals court found that the trial court erred and abused its discretion by excluding expert testimony concerning an evaluation of the county's dive efforts which expressed the opinion that several aspects of the county's response to the drowning suggested the county was not, in fact, engaged in a rescue operation at all, but only in a body recovery operation, which "would obviously fall short of being a meaningful alternative to rescue." This testimony, the court found, from a "water rescue expert," could have helped the jury decide whether what the county offered was a "meaningful alternative to private rescue."

     The trial court also allegedly erred in excluding as irrelevant a letter to the county dispatch director complaining that the municipal authorities never notified the local Coast Guard of the drowning, which was also relevant to the "no meaningful alternative" element of the plaintiffs' claim. Further, the appeals court ruled that the trial judge improperly excluded two letters written to the county administrator by a risk consultant with a public-entity liability and property insurer, stating that the county had no duty to provide a rescue team and that "liability would significantly increase" if it did so.

     The appeals court further found that there was enough evidence concerning the question of the circumstances under which a tape of that evening's 911 calls was destroyed to "entitle the plaintiffs to present their spoliation evidence to the jury."

     The court also found that questioning of the decedent's mother about her need for counseling because "on several occasions you and your family were accused of child molestation" was "irrelevant and unduly prejudicial, and should have been disallowed."

     Taken together, the appeals court ruled, the plaintiffs were entitled to a new trial because of all these errors. The appeals court ruled that a doctrine of "cumulative-error" applied in criminal trials should also extend to civil cases. "Since a jury reaches its verdict in light of the evidence as a whole, it makes no sense to try to analyze errors in artificial isolation, when deciding whether they were harmless."

     Beck v. Haik, No. 01-2723 2004 U.S. App. Lexis 15590 (6th Cir.).

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Officers who allegedly failed to immediately terminate their search of a residence when they learned that they were in the wrong house were not entitled to qualified immunity from liability.

     Seven police officers and a deputy sheriff in Texas appealed a trial court's denial of their motion for summary judgment based on qualified immunity in a lawsuit arising out of their search of a residence. The trial court found that the defendants were entitled to qualified immunity on the plaintiffs' claims against the defendants for their mistaken entry into the plaintiffs' house, but not on claims arising from the defendants' alleged failure to immediately terminate their search when they realized they were in the wrong house.

     A federal appeals court upheld this result as to six of the defendants, but granted summary judgment on the remaining claims also as to two of the defendants, who it was undisputed never entered the home to begin with.

     The plaintiffs were a couple and their two children. The officers executed a "no knock" search warrant on their home which was for "400 N.W. 14th Street," while the plaintiffs' home was "410 N.W. 14th Street."

     One of the officers had stopped his car directly in front of the plaintiff's house, which caused the entry team leader to confuse the plaintiffs' home with the home which was the subject of the search warrant, a house where a suspected drug dealer lived. The couple was on their porch as the officers approached, and retreated back inside their home. Officers followed them inside and detained both the couple and their children.

     The officers allegedly "quickly realized" that they were in the wrong home. Two of the officers behind the entry team leader knew they were approaching the wrong house, but thought perhaps the entry team leader had seen the suspected drug dealer run into this home and that he was now in pursuit.

     The trial court's denial of qualified immunity to the officers on the claim concerning their failure to terminate the search after they realized they were in the wrong home was based on factual disputes about how long they continued that search after that realization.

     While officers do not necessarily violate the Fourth Amendment when they mistakenly execute a search warrant on the wrong address, the appeals court noted, once they recognize this fact they are required, under clearly established law, to discontinue the search of the residence. Given the factual dispute between the officers testimony that they left immediately after realizing that they were in the wrong house, and the plaintiffs' testimony that they remained in the house for five to six minutes, and even searched the couple's bedroom after they realized they were in the wrong house, six of the defendants were not entitled to qualified immunity on this claim. The appeals court also rejected the argument that the plaintiffs, in order to proceed with their claims, had to show any injury other than the alleged illegal search and seizure itself.

     While the defendants argue that they made an honest mistake in going into the home, the plaintiffs' remaining claim concerns not their entry, but their remaining there once they realized their mistake.

Qualified immunity does not provide a safe harbor for police to remain in a residence after they are aware that they have entered the wrong residence by mistake. A decision by law enforcement officers to remain in a residence after they realize they are in the wrong house crosses the line between a reasonable mistake and affirmative misconduct that traditionally sets the boundaries of qualified immunity.

     Two of the officers, however, did not enter the residence at all, but remained outside. As this was undisputed, these officers were entitled to qualified immunity on all claims.

     Simmons v. City of Paris, Texas, No. 03-41291, 2004 U.S. App. Lexis 14946 (5th Cir.).

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County was entitled to summary judgment in lawsuit by elderly woman claiming that members of multi-agency task force improperly entered and searched her home looking for suspect who no longer lived there, when no county policy or custom caused the actions. Individual deputies involved in obtaining the address to go to or who accompanied team members on the search, were entitled to qualified immunity, as their actions did not violate plaintiff's rights.

     The Houston, Texas Field Division of the Drug Enforcement Agency (DEA) coordinated a "round up" of drug-related, outstanding state and federal arrest warrants in Nacogdoches county, Texas, with a number of federal, state, and local law enforcement agencies participating.

     One of the warrants was for an address where the suspect was no longer present, as his mother had been evicted from the leased house the previous year. Instead, a sixty-seven year old woman was living there alone, as she had been since seven months before. The members of the team which executed that warrant played no role in acquiring the information in the packages they were given.

     Upon arriving at the home, and receiving no response to a knock on the door, officers breached the door and entered. The elderly woman inside was detained for a period of time. After conducting a quick sweep of the house and discovering that the suspect was not there, most of the team members departed, but two officers remained briefly to check on the woman's condition. They then departed. Later that day, the woman went to the emergency room with chest pains and high blood pressure, remaining in the hospital for three days.

     The woman sued a number of agencies and officers involved in the search, claiming illegal search and seizure. She settled her claims with some defendants and some claims were dismissed. She appealed only the dismissal of her claims against the county and two deputies involved in the search, the only county personnel involved. The trial court had ruled that no improper county policy had been alleged and that the two deputies were entitled to qualified immunity.

     The federal appeals court agreed. One of the deputies, in determining the address to go to, had no information suggesting that the suspect's address was anything other than the residence searched, and he was not charged with making an independent investigation, but only instructed to obtain the addresses for inclusion in the packages given to the team on the basis of the information then available. He did not directly participate in the search itself. This deputy was entitled to qualified immunity, the appeals court easily decided.

     Additionally, he had no knowledge that the officers would enter the residences in question if the suspects were not there. In fact, the packages supplied, in addition to the arrest warrants, had a consent to search form, and the plan for the "round up" specified that teams should attempt to obtain signed consent forms at each residence. Accordingly, no evidence supported a finding that this deputy took any action that amounted to a violation of the Fourth Amendment.

     The other deputy, who participated in the search, did not have any part in the decision to make entry, and did not participate in forcing the door, as the team leader made all decisions entirely on his own. This deputy committed no constitutional violation, and was also entitled to qualified immunity.

     Finally, the appeals court agreed that there was no real evidence of any county policy or custom which caused a deprivation of the plaintiff's rights, so that the county was also entitled to summary judgment.

     Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, No. 03-40394, 2004 U.S. App. Lexis 15493 (5th Cir.).

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Administrative Liability: Training

     Arrestee failed to contradict the city's evidence that its police officers were properly trained and could not, therefore, pursue a claim against the city or chief of police for failure to properly train and supervise officers. The plaintiff asserted that his arrest was based on false information and information from bribed witnesses, but failed to show any evidence that police officers had any reason to know that the information implicating him in a murder was false. Hampton v. City of Jonesboro, Arkansas, No. 03-1811, 90 Fed. Appx. 971 (8th Cir. 2004). [PDF]

Assault and Battery: Physical

     Officer did not use excessive force in screaming at a truck's occupants to raise their hands, placing his hand near his holstered weapon, and threatening the incarcerate one of the suspects, following a chase that occurred because the officer suspected a passenger of firing a shot at an antelope, a protected species. Because the suspected offense involved the firing of a loaded firearm, the officer could reasonably perceive a risk of injury or danger, and he therefore acted in an objectively reasonable manner. Wheeler v. Scarafiotti, No. 02-2297, 85 Fed. Appx. 696 (10th Cir. 2004).

Attorneys' Fees: For Plaintiff

     Plaintiff who was awarded $10,000 in damages against one officer for alleged excessive use of force against him at his apartment was entitled to an attorneys' fee award as a "prevailing party," even though he would not receive any of the $10,000 award because he had previously entered into a $25,000 settlement with other defendants in the case, which fully compensated him for damages in excess of those the jury found occurred. Concession by plaintiff's attorney that the jury's award was to be set-off by the prior settlement did not deprive the plaintiff of "prevailing party" status. Attorneys' fees and expenses of $10,572.74 were therefore awarded. Baim v. Notto, 316 F. Supp. 2d 113 (N.D.N.Y. 2003).

Defenses: Collateral Estoppel

     The issues as to whether a husband was falsely arrested for assault and whether his former wife should have been arrested instead were already litigated and determined in their dissolution of marriage proceeding, and the husband therefore was barred by the doctrine of collateral estoppel from raising and relitigating them again in his lawsuit for false arrest and malicious prosecution. Law enforcement defendants were entitled to summary judgment. Riemers v. Anderson, No. 20030317, 680 N.W.2d 280 (N.D. 2004).

Defenses: Statute of Limitations

     Claim against sheriff for alleged unlawful arrest and confinement accrued, for statute of limitations purposes, when the plaintiff was arrested for criminal trespass, when he was never charged or prosecuted for the offense, and the plaintiff's lawsuit was therefore properly dismissed as barred by a two-year statute of limitations. Dopp v. Rask, No. 03-3150, 91 Fed. Appx. 79 (10th Cir. 2004).

Dogs

     Minnesota statute imposing strict liability for dog bites on dog owners ruled non-applicable to police dogs in lawsuit brought for damages against police department by wife for police dog's biting of her husband during his arrest. Hyatt v. Anoka Police Department, No. A03-1707, 680 N.W.2d 115 (Minn. App. 2004).

     Police officer's use of police dog to stop and subdue motorist who fled on foot after resisting arrest while driving under the influence of alcohol was not excessive force under the circumstances. Tilson v. City of Elkhart, Indiana, 317 F. Supp. 2d 861  (N.D. Ind. 2003).

Domestic Violence

     Officers had probable cause to arrest a man's fiancee for violating a California state statute against the willful infliction of "corporal injury" on a cohabitant, even if she lacked any intention to injure him. Both the man and his fiancee admitted to the officers that she had punctured his ear when trying to restrain him by grabbing his arm and the officers also observed both the blood on the fiancee's shirt and the puncture wound on the man's ear. Estrada v. County of Los Angeles, No. 02-56742, 91 Fed. Appx. 28 (9th Cir. 2004).

Expert Witnesses

     A Florida Highway Patrol traffic homicide investigator was properly allowed to testify as an expert witness in accident reconstruction in a wrongful death lawsuit brought by a deputy sheriff's estate against the owner and operator of a truck that struck the deputy. He testified, based on his work at the accident scene, that the deputy pulled out into the highway when the truck was so close that the truck driver did not have time to avoid the collision. The court rejected the plaintiff's argument that the investigator should have been barred as an expert because a jury would give a law enforcement officer's testimony undue weight. "When a law enforcement officer has been properly qualified as an expert, the officer may testify to matters that are within the officer's expertise." Alexander v. Penske Logistics, Inc., No. 3D02-2793, 867 So. 2d 418 (Fla. App. 3d Dist. 2003), rehearing denied, 2004. [PDF]

False Arrest/Imprisonment: No Warrant

     Officers responding to domestic disturbance report had probable cause to arrest man for violation of New Jersey state firearms laws when they found that he possessed a handgun, that the gun was licensed in another state, and that he was a resident of another state. Bowser v. Borough of Freehold, #03-3386, 99 Fed. Appx. 401 (3rd Cir. 2004). [PDF]

     There was probable cause to arrest a man in connection with a reported robbery at a convenience store after a clerk identified him as someone who had arrived and left in a vehicle with two other customers who threatened the clerk and displayed a handgun after the clerk refused to let them take cigarettes without paying. Lee v. Minute Stop, Inc., No. 1012303, 874 So.2d 505 (Ala. 2003).

     Officer had probable cause to arrest a woman when he entered a bingo hall and observed her fighting with another woman in the middle of a crowd of people. The officer could only act on what he knew, and did not have any knowledge as to which woman had initiated the fight, or whether the arrestee was at fault. His use of pepper spray to stop the fight was not an excessive use of force under the circumstances. Esters v. Steberl, No. 03-506, 93 Fed. Appx. 711 (6th Cir. 2004).

Firearms Related: Intentional Use

     Officer acted in an objectively reasonably manner in shooting and killing a suspect who had fired a gun at an officer, refused to lower his gun when ordered to do so, and then retreated into his home, where the officer feared he would pose an even greater threat to officers on the scene once he was out of sight. Elkins v. McKenzie, No. 2002-IA-00845-SCT, 865 So. 2d 1065 (Miss. 2003). [PDF]

Governmental Liability: Policy/Custom

     There was a genuine issue as to whether a city had a policy allowing the use of riot guns with wooden baton rounds before other less extreme means of crowd control were attempted, and whether the city had ratified an officer's alleged direct firing of a "knee knocker" wooden projectile at a student while attempting to disperse a crowd of partygoers who had gathered on a street. Trial court therefore denied summary judgment for the defendant city. Otero v. Wood, 316 F. Supp. 2d 612 (S.D. Ohio 2004).

Negligence: Vehicle Related

     Police officer was not acting with reckless disregard for others' safety when he struck another motorist's vehicle in an intersection while responding to a report of a disturbance. The officer was only traveling at 37 miles per hour, and had his blue lights and sirens activated, and there was no obstruction to the view of either the officer or the other motorist. The officer was therefore immune from liability under the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-9(1)(c) which requires a showing of reckless disregard before imposing liability on a public employee engaged in the performance of police or fire protection duties. Davis v. Latch, No. 2003-CA-00511-COA, 873 So. 2d 1059 (Miss. App. 2004). [PDF]

Off-Duty/Color of Law: Arrest Related

     Off-duty police officer serving as store security guard had probable cause for arrest of patron who was "loud and rude" in connection with discussion of dispute with store employee. Initial guilty finding in trial court on criminal charges conclusively proved that the officer had probable cause for arrest, barring a claim for malicious prosecution, despite the prosecutor's subsequent decision, when the arrestee appealed, to drop the charges. Sundeen v. Kroger, No. 03-386, 133 S.W.3d 393 (Ark. 2003).

Police Plaintiff: Firefighters' Rule

     A police officer's claim for personal injuries allegedly suffered while attempting to handcuff an arrestee who was swaying or staggering was barred by the professional rescuer's doctrine under Louisiana law. This doctrine states that a "professional rescuer" such as a police officer or firefighter who is injured in the performance of their duties assumes the risk of such injuries and cannot sue for damages. In this case, there was no claim that the arrestee was resisting arrest, and the officer was aware that the arrestee was drunk. The officer's injuries occurred when her knee struck the bumper of a car while she was trying to handcuff the arrestee. Gann v. Matthews, No. 2003 CA 0640, 873 So. 2d 701 (La. App. 1st Cir. 2004). [PDF]

     Public-safety officer's rule barred a Rhode Island police officer's lawsuit against a homeowner for damages he suffered while running down the steps on the property after completing his inspection of the residence in response to the home's security alarm. The type of injury suffered was a foreseeable consequence of the officer's performance of his duty on the property. The officer, in running down the steps, was also responding to another emergency--a collision he saw which had occurred outside of the homeowner's property. Walker v. Prignano, No. 2003-631-Appeal, 850 A.2d 954 (R.I. 2004 ). [PDF]

Police Plaintiff: Vehicle Related

     A driver who was convicted of criminal charges of attempted assault for attempting to back his vehicle into an officer was barred from re-litigating the question of his mental state in a personal injury lawsuit brought by the officer. Appeals court finds that the doctrine of collateral estoppel applied, and that the issue of whether the driver's conduct was intentional had been definitively decided in the criminal case. Carr v. Holt, No. ED 82626, 134 S.W.3d 647 (Mo. App. E.D. 2004).

Procedural: Evidence

     In a lawsuit against a town for the death of a motorist whose vehicle was struck by an officer's car, the nature of the call that the officer was responding to at the time was relevant to determining whether the officer acted in reckless disregard of the safety of others, and therefore was admissible. Allen v. Town of Amherst, 778 N.Y.S.2d 598 (A.D. 4th Dept. 2004). [PDF]

Public Protection: Minors

     Police officer did not create a danger to a child by leaving her at a convenience store after allegedly mistakenly arresting her mother. The child was left with a responsible adult known to her family, and the child was not placed in any actual danger. Under the circumstances, the officer's actions in relation to the child were not objectively unreasonable. Craddock v. Hicks, 314 F. Supp. 2d 648 (N.D. Miss. 2003).

Public Protection: Witnesses

     City and police officer were not liable for murder of subpoenaed witness and her son allegedly by the brother of the suspect against whom the witness was to testify. The mere fact that the witness had been subpoenaed did not impose a duty to provide protection. The mere fact that some police protection was provided for a time and then subsequently withdrawn did not mean that the city created the danger to the witness. Clarke v. Sweeney, 312 F. Supp. 2d 277 (D. Conn. 2004 ).

Pursuits: Law Enforcement

     Lawsuit by parents of a motorcyclist who died in an accident while being pursued by a police officer was not a claim for intentional misconduct when plaintiffs asserted that officer purposefully bumped motorcycle to end the pursuit, as it was not claimed that the officer intended to injury the motorcyclist. The lawsuit was not, therefore, barred by the Texas state Tort Claims Act, V.T.C.A. Civil Practice & Remedies Code Sec. 101.021 Durbin v. City of Winnsboro, No. 06-03-00046-CV, 135 S.W.2d 317 (Tex. App. 2004).

Search and Seizure: Search Warrants

     Students whose homes were searched and who were arrested for allegedly plotting an armed attack on their school failed to show that information allegedly intentionally omitted from affidavit in support of search warrant, had it been included, would have negated the existence of probable cause for the searches. The information which was allegedly omitted was not material. Additionally, the fact that an informant whose statements were relied on had prior juvenile convictions and had used drugs while with the five high school students who allegedly plotted the armed attack did not render the information he provided unreliable. Smith v. Barber, 316 F. Supp. 2d 992 (D. Kan. 2004).

Search and Seizure: Vehicle

     Officers had sufficient reasonable suspicion to stop a vehicle and request that the driver perform field sobriety tests after they observed a pickup truck weaving in its lane and straddling the dividing line on the highway. Blackstone v. Quirino, 309 F. Supp. 2d 117 (D. Me. 2004).

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

     Article: "Issues in Small Town Policing," by Dennis Lindsey and Sean Kelly, 73 FBI Law Enforcement Bulletin No. 7, pgs. 1-11 (July 2004). "Regardless of agency size or service area, all law enforcement officers face increasing amounts of job-related stress." [PDF]

     Article: "No Duty to Protect: Two Exceptions" by L. Cary Unkelbach, Assistant County Attorney representing the Arapahoe County Sheriff's Office, Centennial, Colorado. Police Chief magazine, vol. 71, no. 7 (July 2004).

     Firearms Background Checks: Survey of State Records Included in Presale Background Checks: Mental Health Records, Domestic Violence Misdemeanor Records, and Restraining Orders, 2003 Examines the quality and accessibility of certain criminal and noncriminal records when States conduct a firearm presale background check. The report covers State mental health records, domestic violence misdemeanor records, and restraining orders. It also describes impediments to access for these types of records during a firearm presale background check. This is one of a series of reports published from the BJS Firearm Inquiry Statistics (FIST) project, managed under the BJS National Criminal History Improvement Program (NCHIP). 8/04 NCJ 206042 Acrobat file (578K) | ASCII file (5K) | Spreadsheets (zip format 21K)

     Human Trafficking: Model State Anti-Trafficking Criminal Statute. [PDF] [Wordperfect file]

     Statistics: Carjacking, 1993-2002 Presents data for carjackings that occurred in the United States between 1993 and 2002. Carjacking is defined as completed or attempted robbery of a motor vehicle by a stranger to the victim. It differs from other motor vehicle theft because the victim is present and the offender uses or threatens to use force. The report presents information on demographic characteristics of the victims such as race, gender, and income; and characteristics of the incident such as time and place of occurrence, weapon use, police reporting and whether the motor vehicle was recovered. Highlights include the following: Carjacking rates were higher on average during the first 5 years of the 1993-2002 period (2.1 per 10,000 persons each year) than during the last 5 years (1.3 per 10,000). Carjacking victimization rates were highest in urban areas, followed by suburban and rural areas. Ninety-three percent of carjackings occurred in cities or suburbs. A weapon was used in 74% of carjacking victimizations. Firearms were used in 45% of carjackings, knives in 11% and other weapons in 18%. 07/04 NCJ 205123 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Terrorism: "Report From The Field: The USA PATRIOT Act At Work," U.S. Department of Justice (July 2004). 31 pgs. [PDF] A compilation of "dozens of real life cases from across the county in which the FBI and other law enforcement officials have used the tools of the Patriot Act to protect America's families and communities, and to save lives."

     Terrorism: Final Report of The National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission). July 22, 2004. 7.22 megabyte file. [PDF].

     Terrorism: A Promising Practices Guide: Developing Partnerships Between Law Enforcement and American Muslim, Arab, and Sikh Communities, by the Partnering for Prevention and Community Safety Initiative, Northeastern University School of Law. A report seeking to "identify and help implement promising practices for building relationships between federal, state, and local law enforcement and American Muslim, Arab, and Sikh communities" in order to "enhance counterterrorism initiatives, protect communities from hate crimes and hate incidents, and help preserve American civil liberties." The approach taken in this report has been strongly criticized by Daniel Pipes, director of the Middle East Forum, and a member of the presidentially-appointed board of the U.S. Institute of Peace.

     Reference:

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

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