CONTENTS

Federal appeals court reinstates claim by wheelchair-bound arrestee that officers injured him by attempting to place him in the back seat of a police cruiser even after he explained that his legs could not bend.

     An Ohio man who suffers from muscular dystrophy and is wheelchair-bound was found, by a federal appeals court, to have produced evidence which was sufficient to create a genuine factual issue as to whether the county sheriff and two of his deputies had probable cause to arrest him and as to whether they used excessive force in attempting to place him in the back seat of a police cruiser after he explained that his legs could not bend. The court also found that if the facts were as alleged by the arrestee, the rights violated were clearly established, so that the individual defendants were not entitled to qualified immunity, and reversed summary judgment for them.

     The appeals court found no evidence sufficient, however, to support claims of inadequate training against the sheriff and the county.

     The plaintiff was engaged in an ongoing dispute with a neighboring family about them parking on his grass and hitting his trashcans with their cars. The neighbors had allegedly begun to threaten him because of his complaints about this, and one allegedly threatened to shoot him. Concerned about his safety, he installed security lights on his garage, and the neighbors complained about the lights to the county sheriff.

     These complaints led to several arrests of the plaintiff--one for disorderly conduct because the lights were bothering neighbors, and one for allegedly blocking a neighbors car while in his wheelchair. The sheriff and a deputy came to the plaintiff's house when the neighbors again complained about the brightness of the lights. An additional deputy arrived, and the plaintiff was arrested and carried out of his house through the front door in his wheelchair. As they did so, he allegedly fell out of it, was picked up by the officers, and taken to a waiting police cruiser.

     They allegedly ignored his protests that he could not fit in the back seat because he was unable to bend his legs, and they tried to put him there. They were unable to do so because his leg became caught between the rear door and the body of the cruiser, which caused injury to his leg. As they attempted to remove the plaintiff from the cruiser and return him to his wheelchair, they allegedly twice dropped him. The plaintiff was then allegedly having difficulty breathing and the officers called paramedics to transport him to a hospital. Charges against the plaintiff were later dismissed.

     The appeals court found that there was a material issue of fact as to whether or not the defendants had probable cause to make the arrest, including whether the lights were targeted at the neighbor's residence and whether the defendants had probable cause to believe that they were in fact physically offensive and annoying or alarming to the neighbors and served no lawful purpose.

     Additionally, even if there was probable cause for the arrest, there was a genuine issue as to whether the attempts to place the plaintiff in the back of the cruiser were reasonable in light of his physical condition, and the assertion that he was not physically resisting or engaging in violent behavior. A reasonable jury could find in the plaintiff's favor on the excessive force claim. One of the deputies acknowledged at his deposition that the arrestee's legs would not bend.

     The appeals court upheld summary judgment on the failure to train claims, but reversed it as to the liability of the defendants in their individual capacities on claims for false arrest and excessive use of force.

     St. John v. Hickey, No. 04-3388 2005 U.S. App. Lexis 11736 (6th Cir.).

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Woman who claimed she was improperly arrested for obstruction of justice without probable cause was entitled to a new trial after trial court erroneously instructed the jury on the legal issue of whether the arresting officer was entitled to qualified immunity.

     A Virginia woman arrested for obstruction of justice at a friend's house after she objected to the entry of officers seeking to arrest his son, received a jury verdict against her in her federal civil rights lawsuit challenging the arrest. A federal appeals court has held that she is entitled to a new trial because the trial judge improperly instructed the jury on the legal question of whether, on the facts found by the jury, the arresting officer was entitled to qualified immunity.

     The officers claimed that the woman stood in front of the arresting officer as he tried to proceed inside, after determining that there were outstanding arrest warrants for her friend's son. While she stepped aside when threatened with arrest, she allegedly stood in front of the officer shortly thereafter, and he then arrested her.

     The plaintiff claimed that the officer entered the house with his firearm pointed at her head, and told her "no, not yet," when asked if he had a warrant. He then allegedly shouted "come and get her, at which point another officer entered the residence and put her in handcuffs.

     She was subsequently acquitted of the obstruction of justice charge, and filed a false arrest lawsuit against the officer. Over her objection, the trial court gave the jury the following instruction on the issue of qualified immunity:

If you find that Ms. Willingham has proven her constitutional claim of being arrested without probable cause, you must then consider the defense of [Sergeant] Crooke that his conduct was objectively reasonable in light of the legal rules clearly established at the time of the incident . . . and that he is therefore not liable. This is known as the defense of qualified immunity.

Police officers are presumed to know about the clearly established constitutional rights of citizens. In this case, Ms. Willingham's constitutional right not to be arrested without probable cause was a clearly established right.

If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham's constitutional rights, you must find for Ms. Willingham.

If, however, you find that [Sergeant] Crooke had a reasonable belief that his action did not violate the constitutional rights of Ms. Willingham, then you cannot find [Sergeant] Crooke liable even if Ms. Willingham's rights were, in fact, violated as a result of his objectively reasonable action.

     This was followed by a jury verdict in favor of the officer.

     The appeals court found that the question of whether the officer was entitled to qualified immunity under the facts found by the jury--i.e., whether a reasonable officer would have known that his actions violated the law--should not have been submitted to a jury.

     When the facts are undisputed, the issue of whether a reasonable officer should have known of the illegality of his conduct "is a question of law for the court." But the appeals court reasoned that the existence of disputed material facts, which must be submitted to a jury, does not alter the "essentially legal" nature of the question of whether the right at issue was clearly established.

     It held, therefore, that the legal question of a defendant's entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. It held that the error in instructing the jury to decide the issue of qualified immunity could not be said to be harmless in this case. It was not clear that the jury's verdict rested on a determination that there was probable cause for the arrest, rather than on a determination that probable cause was lacking, resulting in a constitutional violation, but that the arresting officer reasonably believed otherwise. A new trial was therefore ordered.

     Willingham v. Crooke, No. 04-1548, 2005 U.S. App. Lexis 12129 (4th Cir.).

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U.S. Supreme Court rejects claim that woman granted a restraining order against her estranged husband had a constitutionally protected due process property interest in having police enforce it. Plaintiff alleged that the failure of police to do so resulted in the murder of her three minor daughters by her husband while violating the order.

     In a 7-2 decision, the U.S. Supreme Court has held that a woman who obtained a state-law restraining order against her estranged husband did not have a constitutionally protected due process property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated.

     Characterizing the facts in the case as "horrible," the majority's decision noted that the Colorado woman who was the plaintiff in the case had obtained a restraining order against her husband in connection with their pending divorce, and it required that he not molest or disturb her or the couple's three daughters, ages 10, 9, and 7, and remain at least 100 yards from the family home at all times. The judicial order also contained a notice to law enforcement officials commanding them to "use every reasonable means to enforce this restraining order," and to arrest, or seek a warrant for the arrest of the restrained person if they had probable cause that the restrained person had violated or attempted to violate the order.

     The order was later modified to give the husband visitation with the daughters on certain days and "upon reasonable notice," for a mid-week dinner "arranged by the parties." One day, however, he took the three daughters while they were playing outside the home, without any advance arrangement. The mother then called the police department, and she showed the two officers who responded the copy of the restraining order and requested that it be enforced, and the children be returned to her at once. The officers allegedly said that there was nothing they could do, and suggested that she call the department again if the children did not return by 10 at night.

     She later allegedly talked to her husband on his cell phone, and he admitted having the children at an amusement park. She called police again, and they allegedly refused to put out an all points bulletin for her husband or look for him and his vehicle at the amusement park. She called again at 10 p.m. and allegedly told officers that her daughters were still missing, and was told to just wait until midnight. She went to the police station at 12:50 a.m. and submitted an incident report, and the officer who took the report allegedly made "no reasonable effort" to enforce the restraining order or locate the children, but instead "went to dinner."

     The husband arrived at the police station at 3:20 a.m., and opened fire with a semiautomatic handgun he had purchased that evening. The officers shot back and killed him. Inside his pickup truck, the bodies of his three daughters were found. He had previously murdered all of them.

     The wife claimed in her subsequent federal civil rights lawsuit that the town violated her due process rights because it had an official policy or custom of failing to respond properly to complaints of restraining order violations, and tolerated the non-enforcement of restraining orders by its police officers.

     A federal appeals court, both through a three judge panel and on rehearing en banc, found that the mother had a "protected property interest in the enforcement of the terms of her restraining order" and that the town had deprived her of due process because "the police never 'heard' nor seriously entertained her request to enforce and protect her interests in the restraining order." Gonzales v. Castle Rock, #01-1053, 366 F.3d 1093 (10th Cir. en banc, 2004).

     The Supreme Court's majority, in an opinion written by Justice Scalia, reversed. The Court found that the "benefit" of having such a restraining order enforced by police was not a protected property interest, rejecting the argument that Colorado, in passing its laws concerning restraining orders had created such an entitlement to the enforcement of the order.

We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.

     A true "mandate" of police action, the Court ruled, would require "some stronger indication" from the Colorado legislature than "shall use every reasonable means to enforce a restraining order."

It is hard to imagine that a Colorado peace officer would not have some discretion to determine that -- despite probable cause to believe a restraining order has been violated -- the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.

     The Court's majority further reasoned that if the plaintiff had a statutory entitlement to enforcement of the restraining order, "we would expect to see some indication of that in the statute itself." The opinion concludes that the plaintiff did not have, for purposes of the due process clause, a property interest in police enforcement of the restraining order against her husband.

     A strong dissent by Justice Stevens, joined by Justice Ginsburg framed the issue as whether the restraining order issued by a Colorado trial court created a property interest that is protected "from arbitrary deprivation" by the due process clause of the Fourteenth Amendment. He acknowledged that neither the U.S. Constitution nor any federal statute provided the plaintiff or her children any individual entitlement to police protection. Nor, he continued, does any Colorado statute create an entitlement to police protection for the "ordinary citizen." But he reasoned that it was also true that federal law "imposes no impediment to the creation of such an entitlement by Colorado law."

     Stevens reasoned, however, that the Colorado statute's guarantee of police enforcement was triggered by a judge's granting of a restraining order in favor of an identified "protected person."

Not only does the Court's doubt about whether Colorado's statute created an entitlement in a protected person fail to take seriously the purpose and nature of restraining orders, but it fails to account for the decisions by other state courts, that recognize that such statutes and restraining orders create individual rights to police action.

     Stevens argued that the plaintiff had a property interest in the enforcement of the restraining order that state officials "could not deprive her of" without "observing fair procedures." He stated that her description of the alleged police behavior in this case, and the police department's alleged "callous policy of failing to respond properly to reports of restraining order violations clearly alleges a due process violation."

     Town of Castle Rock v. Gonzales, No. 04-278, 2005 U.S. Lexis 5214.

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Erroneous admission of expert witness testimony which commented on the credibility of police officers involved in shooting required a new trial in case where jury returned a verdict against a suspect shot and paralyzed from the waist down.

     A 19-year-old shot by a police officer following a chase, and rendered paralyzed from the waist down as a result, sued the city and the officer for alleged excessive use of force. Following a trial, a jury returned a verdict in favor of the shooting officer.

     A federal appeals court rejected the plaintiff's argument on appeal that he was entitled to judgment as a matter of law in the case, but agreed with him that a prejudicial admission of expert witness testimony, which should not have been admitted, required the granting of a new trial.

     The plaintiff was attending a party at night, carrying a loaded gun, and hid the gun in bushes alongside a hall, because the bouncer there would not let him in the party with the weapon. Later that night, while standing outside, he heard gunshots fired inside, and then saw a person lying on the floor, and next to him the gun that he had hidden in the bushes earlier in the evening. He picked the gun up, put it in his waistband, and left, running several blocks to a livery cabstand where he met several friends.

     Two officers then approached the 19-year-old and his friends at the cabstand. The officers claimed that the plaintiff removed the gun from his waistband and started to run, and they chased him. When they caught up with him, he allegedly turned in a crouched position, faced one of the officers and pointed his gun at him. The officer then fired his own weapon, striking the youth in the chest.

     The youth and his witnesses claimed that he did not hold a gun in his hand as he ran away, but was instead using his hand to hold up the waist of his pants. He also claimed that he did not have a gun in his hand at any point during the chase. The plaintiff also presented two medical experts who stated their opinion that he was shot in the back. The defendants presented one medical expert, and the testimony of these three doctors was the basis for a crucial factual dispute in the case--whether the officer fired his gun as the plaintiff, unarmed, was trying to flee, or whether the officer fired as the plaintiff, holding a revolver in his right hand, was turning toward the officer and preparing to shoot.

     The defense's medical expert was, at the time of the trial, the deputy chief medical examiner for a county, but testified in his private capacity as a consulting expert in forensic pathology. He conceded that the plaintiff could not have been facing the officer when he was shot. But he contended that if the plaintiff had been turning with a gun in the split second before being shot by the officer, he would have still completed his turn as he fell to the ground.

     He also testified that "because of the limited powers of human perception," and because the events between the alleged turn and the time that the plaintiff was shot occurred over the course of mere seconds, the officers might both have "perceived" the plaintiff to have fully turned when the officer pulled the trigger, notwithstanding that, in reality, the plaintiff could not have been facing the officer until after the bullet had already entered his body.

     This expert also testified that he adopted his "misperception" hypothesis in part on the basis of his review of the officers' pre-trial depositions in which they both gave substantially the same version of events that they later gave in their trial testimony. He also testified that he also relied on his independent conclusion that the officers "must not have been lying in their accounts."

     The jury returned a verdict for the shooting officer. A federal appeals court found that the plaintiff was entitled to a new trial because portions of the defendant's expert testimony were erroneously admitted and were likely to have had a substantial effect on the jury's resolution of the factual disputes at trial.

     Those portions included his opinion purporting to explain and justify, despite the uncontroverted medical evidence that the officer's bullet struck the plaintiff in the back, the officers' statements that, prior to being shot, the plaintiff faced the officer with an aimed weapon.

     The appeals court found that the defendant's expert witness improperly testified concerning the credibility of the officers, which was outside of the field of his expertise. His testimony essentially told the jury what ultimate determination to reach as to the credibility of the officers, who he said were "telling the truth as they perceived it." The appeals court also believed that the testimony about credibility should have been excluded because it was based on his comments about the credibility of trial testimony from crucial fact witnesses, the officers. He was improperly permitted not only to state his belief that the officers were not lying, but also to give the jury a "series of rationales" for that belief.

     The defense's expert also should not have been allowed to "expound his misperception hypothesis at all."

     Because there was the possibility that in the absence of the expert's testimony regarding the tendency of police officers in general, and these two officers in particular, not to lie in excessive force investigations the jury would have reached a different result, a new trial was required.

     Nimely v. City of New York, No. 04-3240, 2005 U.S. App. Lexis 12712 (2d Cir.).

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Immigration officer reasonably should have known that the arrest and detention of an alien returning to this country after attending his father's funeral abroad was a violation of the Fourth Amendment when he had valid permission from immigration authorities to attend the funeral and return. Officer was therefore not entitled to qualified immunity, and plaintiff was entitled to summary judgment on the illegality of the detention.

     An alien from Senegal who had over-stayed his visitor's visa in the U.S., but had married a U.S. citizen and applied for legalization of his status, returned from his father's funeral in Senegal to the U.S., and an immigration inspection officer took him into custody as an "arriving alien" without proper admission documents. He then spent nearly three months in detention and he and his wife filed a lawsuit claiming that the arrest and detention were in violation of the Fourth Amendment, seeking damages.

     The defendant immigration officer appealed from the trial court's grant of summary judgment for the plaintiffs on the issue of the legality of the detention, and the court's denial of his motion for summary judgment on the basis of qualified immunity. A federal appeals court upheld the trial court's decision.

     When the plaintiff alien left the country to attend his father's funeral, his legalization of status applications were pending. A temporary resident of the U.S. may return from a trip abroad if he obtains an advanced parole document permitting him to travel and return, usually within thirty days, and in this case, the plaintiff alien received such permission from the immigration authorities. When he came back to the U.S., he did so within the prescribed time, according to the appeals court.

     The alien was taken into custody despite his advance parole authorization. The appeals court found that because of the documents that he had when he returned from Senegal, he was not a newly arriving alien and could not have been detained on that basis. Additionally, because of the documents he possessed, the immigration officer's justification of his arrest on the ground that he was not in possession of a "valid entry document" was "unsupportable."

     The appeals court found that any reasonable immigration officer would have known that the arrest and detention of the alien under these circumstances was improper, and violated the Fourth Amendment, so that the defendant was not entitled to qualified immunity, and the plaintiffs were entitled to summary judgment on the issue of the legality of the detention.

     Sissoko v. Rocha, No. 03-55667 2005 U.S. App. Lexis 11052 (9th Cir.).

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Arrest of former police officer under warrant charging him with theft of funds while in office was supported by probable cause, entitling defendants to summary judgment on false arrest and malicious prosecution claims.

     A police lieutenant in a small village was active in a voluntary association of the local police officers, and was authorized to make deposits and expenditures of the group's funds. The association raised money by producing and selling telephone directories to residents for three dollars, and selling ads in the directory to local businesses. He was placed in charge of producing a new directory, and deposits for the directories or ads were left for him at the police station and deposited in the association account, with at least one check deposited made payable to the village. The lieutenant left the force, the police association disbanded, and it was decided to give the directories away for free even though several villagers had already paid for theirs.

     At least two businesses claimed to have paid the lieutenant for ads that did not appear in the new directory. These businesses and several people who claimed to have paid to buy the directory complained to the police department and asked the village for refunds. An investigation was then conducted by a police officer at the direction of the police chief, resulting in a report repeating these claims, and also revealing that the lieutenant had allegedly deposited a small sum into a bank account entitled "Timberlake Special Police Fund," and then withdrawn all of it, totaling $311.46, after he resigned his job.

     This information was presented to a magistrate who issued an arrest warrant for the former lieutenant for theft in office, and he was arrested under the warrant at his new place of employment. The charges against him were subsequently dismissed, and he then sued the mayor, the police chief, and the investigating officer for false arrest, malicious prosecution, and various other claims. The trial court granted summary judgment of all the plaintiff's claims.

     The appeals court found that summary judgment on the false arrest and malicious prosecution claims was proper.

     The plaintiff did not dispute that the village received complaints from citizens that they had paid for directories or ads. He also did not dispute the defendants' statements that he was asked to respond in writing to these allegations, and did not do so, except to ask for claimant's canceled checks. He further acknowledged that he has subsequently repaid some unidentified residents their three-dollar directory fee. He argued, however, that he was improperly charged with theft in office, because he was no longer a police officer, and that theft would have been a more appropriate charge.

     The appeals court noted that the plaintiff was alleged to have received the funds while an officer and that his receipt and control over the money occurred while he was a public official.

     There was probable cause to arrest the plaintiff for an offense, whether theft in office or theft, and the defendants presented the evidence they had to a magistrate and obtained an arrest warrant. The court found that they had probable cause for both the arrest and the prosecution.

     Voyticky v. Village of Timberlake, No. 04-3252, 2005 U.S. App. Lexis 11948 (6th Cir.).

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Trial court improperly granted summary judgment for defendants in domestic violence arrestee's lawsuit claiming that he was unlawfully detained for four days without being arraigned, and that he was then unlawfully evicted from his home by being threatened with another arrest if he did not leave there. If his version of events was true, several supervisory officers knew he was being detained for an unreasonable time period without being brought before a judge, but failed to intervene.

     A Michigan man was arrested at his home for alleged domestic violence and assault and battery on his live-in girlfriend. He subsequently claimed that he was kept in custody by police for four days without being taken before a judge for a probable cause determination, and allegedly not allowed to make any phone calls during that time. He also claimed that officers beat him without justification when he was transferred to a new cell, and that he was sprayed with mace and again physically attacked at the 80th hour of his detention, when he complained about not being arraigned, triggering an asthma attack.

     While he was allegedly told at one point that he could be released on a $100 dollar bond, he was allegedly not allowed to make a call in order to get the money, and officers allegedly would not allow another detainee, who offered to pay his bond, to do so. He further claimed that after his release, he was told by officers that he had "two minutes" to gather his personal effects and leave the house where he lived with his girlfriend, or that he would again face arrest.

     The trial court granted summary judgment for the defendants in a federal civil rights lawsuit filed by the arrestee.

     Reversing, the appeals court found that there was evidence from which a jury could find that three defendant supervisory officers knew that the arrestee was being unlawfully detained for an extended period of time without being arraigned, but failed to intervene. There was no question, the court found, that if the plaintiff's version of events was true, that he was denied his constitutional right to a prompt judicial determination of probable cause following his arrest--being detained for approximately 100 hours without being presented to a magistrate and then after four days simply being released without being charged.

     The appeals court also found that there was a genuine issue of material fact as to whether an officer in essence carried out an illegal eviction of the plaintiff from his home by threatening him with arrest if he did not leave, so that summary judgment on that claim was improper.

     The plaintiff's other claims were rejected, including an allegation that the supervisors knew of his beating by other officers.

     Turner v. City of Taylor, No. 03-2636, 2005 U.S. App. Lexis 11233 (6th Cir.).

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City was not liable for officer's accidental shooting of motorist when his weapon discharged after he fell on the ice while running towards the motorist's vehicle following a pursuit. Officer's actions did not constitute a violation of the motorist's constitutional rights and there was no showing that a city policy or custom of displaying deadly force to make felony traffic stops existed.

     An auxiliary police officer engaged in a pursuit of a vehicle. The pursuit ended when officers forced the pursued vehicle off the ice-covered road into a ditch. The auxiliary officer then ran towards the vehicle with his firearm drawn, and slipped and fell on the ice. When he fell, the officer's gun accidentally discharged, and the bullet struck the motorist in the chest, seriously injuring him. The man and his wife sued the city, the police department, the police chief, and the officer for alleged violation of federal civil rights.

     In an earlier appeal, the federal appeals court held that no unreasonable seizure of the motorist occurred, and that the auxiliary officer was entitled to qualified immunity. The trial court then granted summary judgment on the municipal liability claims.

     The plaintiffs appealed, claiming that they should be allowed to pursue their claims of unconstitutional custom and failure to train and supervise, arguing that Tennessee v. Garner, 471 U.S. 1 (1985), barring the use of deadly force except in response to imminent threats of death or serious bodily harm required reversal.

     The appeals court disagreed. A Fourth Amendment seizure requires an "intentional act" by an officer and does not involve "accidental effects of otherwise lawful government conduct." In this case, the officer's action of drawing his gun was objectively reasonable and the accidental discharge did not constitute an unreasonable seizure.

     Under these circumstances, the court found, the city "cannot be held liable on either an unconstitutional policy or custom theory or on a failure to train or supervise theory." In order for municipal liability to exist, individual liability must first be found on an underlying "substantive claim." There may be exceptions to this general rule, when the individual defendant is held not responsible for a constitutional injury because of a "good faith belief," meriting qualified immunity, but in this case, the officer's actions did not cause a constitutional injury.

     Tennessee v. Garner, the appeals court noted, was clearly distinguishable because it involved an officer's intentional use of deadly force to prevent the escape of a fleeing, unarmed burglar. In this case, the officer merely displayed deadly force in the course of seeking to make an arrest, followed by the accidental firing of his weapon.

     The appeals court found, on the basis of the evidence in the record, that the plaintiff had also failed to establish either that the city had a policy or custom of displaying deadly force to make felony traffic stops, or that the city failed to train or supervise the officer properly on how to make such a stop.

     McCoy v. City of Monticello, No. 03-3668, 2005 U.S. App. Lexis 11343 (8th Cir.).

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City's declaration of civil emergency and prohibition of access to parts of downtown Seattle during 1999 World Trade Organization conference there upheld as a constitutional time, place, and manner restriction on free speech in light of violent acts by protesters.

     In 1999, the City of Seattle, Washington declared a state of civil emergency and issued an emergency order prohibiting access to portions of downtown Seattle, Washington after many thousands of protesters arrived in the city to demonstrate against the conference of the World Trade Organization (WTO), and some of the protesters allegedly engaged in violent acts, such as throwing Molotov cocktails through store windows and battling police officers.

     Saying that it was attempting to draw the proper balance between the "vibrant rights of free speech and assembly in an open society" and the needs of the city to maintain order and security, a federal appeals court upheld the emergency order as a constitutional time, place and manner restriction on speech, but also found that there were genuine issues of fact as to whether the emergency order was constitutional as applied to certain plaintiffs in the lawsuit filed against it, requiring a trial on some claims.

     The federal civil rights lawsuit was filed against the city and police chief on behalf of a class of all persons arrested by the city and its police on December 1, and 2, 1999 under the city's "no protest" policies and directives eventually embodied in the City's "Local Proclamation of Civil Emergency," and who were subsequently not convicted of any crime. A number of other persons filed a separate lawsuit challenging their treatment during the same time period, and asserting claims against particular officers.

     The two cases were consolidated to resolve common legal issues. The trial court found that the emergency order was constitutional as a content neutral time place and manner restriction on speech, which was "narrowly tailored" because it covered only enough territory for the WTO delegates and the President of the U.S. to move safely from their hotels to the convention center, and lasted only during the conference, and served a significant government interest of maintaining order in an emergency situation. The trial court also found that the order provided for ample alternatives for expression, in allowing protesters to demonstrate right outside the boundaries of the restricted zone.

     Class certification was denied, and the trial court denied summary judgment on the individual claims of some plaintiffs, while granting it as to others, based on the different circumstances of individual arrests.

     In upholding the trial court's ruling on the overall issue of the constitutionality of the emergency order, the appeals court noted that the WTO is an international group which discusses trade issues, comprised of representatives from 134 WTO-member nations (148 members in 2005), and that the 1999 conference involved representatives from those countries coming to Seattle, as well as attendance by the President of the U.S. The WTO has generated a vigorous opposition by various groups who believe that the WTO "favors trade expansion over all else," according to the court, and this has resulted in demonstrations at its conferences around the world.

     In Seattle, weeks before the 1999 conference, there were protest activities and violence, including the throwing of several Molotov cocktails into a Gap clothing store, spray-painting of anarchist symbols, trespassing into another store, and attempts to gain entry into the downtown officers of timber and forest product companies.

     The appeals court found that when the protest activity began to intensify, most protesters were peaceful, while others were violent and engaged in breaking windows, vandalizing property, and throwing rocks at police officers. When the conference began, the court found, disruption of normal city life was "so extreme in some locations that it bordered on chaos."

     Officers allegedly saw protesters carrying bottles filled with flammable liquids, locking down intersections by forming human chains from lightpost to lightpost, breaking windows, overrunning and looting small stores, and jumping on cars. On the morning the conference started, protesters had cut vehicular access to the Paramount Theater and the Washington State Convention & Trade Center, the primary meeting venues of the conference. Protesters also allegedly assaulted officers with chemical irritants, vandalized police cars, threw metal spikes, cans, bottles, signs, empty gas canisters and pieces of concrete at officers, etc. Some protesters deliberately disregarded police lines and attempted to break through in violent confrontations.

     When one police officer on duty suffered a heart attack, helicopter evacuation was required because medical units could not break through the gathered crowd to provide medical assistance. Officers responded with tear gas, peppergas, beanbag guns, and rubber bullets.

     The appeals court found that the general public was also at risk from fires some violent protesters started in the streets and dumpsters, and from protesters' interference with fire trucks attempting to enter the area. Some protesters also directly interfered with delegates to the conferences, holding, pushing, or tackling them to prevent their entry into the meeting, or preventing them from leaving the conference venues. Some violent protesters, the court found, were "well-organized," and their "actions were coordinated," using cell phones and walkie-talkies to communicate and turning the streets of the city into "seeming war zones." While one report suggested that the violent protesters were less than one percent of the total protestors, the court pointed out that this was not a small amount of violence, since there were "tens of thousands of protesters."

     A 2-1 majority of the appeals court found that, under the circumstances, the emergency order was not an excessive response, while ordering further proceedings as to the particular claims of some plaintiffs with respect to their arrests or other treatment by city police officers. One judge on the panel dissented in part, arguing that the emergency order was not "narrowly tailored," and did not leave open ample alternative means of communication, and also gave officers "unbridled discretion in its enforcement," so that it was facially unconstitutional.

     Menotti v. City of Seattle, No. 02-35971, 409 F.3d 1113 (9th Cir. 2005).

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

     Editor's Note: For the Seattle Police Department's 75-page "after action" report on the WTO protests, click here. [PDF]

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City's action in erecting barricades that restricted Dairy Queen restaurant's access to the streets and ability of customers to use its drive-through lane violated the business owners' procedural due process rights when it was done without notice or hearing.

     A married couple who owns and operates a Dairy Queen restaurant in Athens, Ohio sued the city and the city prosecutor for alleged violations of their constitutional rights by installing barricades that restricted access to their business. The trial court granted the plaintiffs' request for a permanent injunction, finding that the city's actions violated their due process and equal protection rights.

     The city, through the city prosecutor, had notified the business that due to numerous complaints from the restaurant's neighbors about traffic congestion and noise, including some generated by the restaurant's drive thru lane, the city planned to place do not block signs at the intersection, place no stopping or standing signs at the exit and entrance to the drive thru, and build a curb alongside one street to close the "illegal driveways" comprising the drive thru. The city subsequently placed barricades along the street, running from the drive-thru exit to the end of the property line. While the drive thru exit was not barricaded, this prevented customers from using the drive thru, and refuse trucks were also unable to pick up trash, recycling, and waste grease at the back of the restaurant, which experienced a drop in sales of 22% in the first month after the barricades appeared.

     The plaintiffs' lawsuit asserted that this constituted an arbitrary "taking of property without due process," and was also a violation of their right to equal protection because similar barricades were not erected at other similarly situated businesses, and that the city provided them with no administrative appeal remedy, as well as complaining that they received no notice of a hearing before the barricades were put up.

     The appeals court rejected arguments that the city's actions amounted to an unconstitutional "taking" of the plaintiffs' property or a violation of "substantive due process."

     At the same time, it found that the plaintiffs were denied procedural due process, as the city's actions deprived their business of full access to the public streets without prior notice or hearing, or an opportunity to challenge the basis on which the city made its decision. It found that the trial court erred in finding a violation of equal protection, and upheld the issuance of the injunction on the due process ground alone.

     Warren v. City of Athens, No. 03-3580, 2005 U.S. App. Lexis 11232 (6th Cir. 2005).

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

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Officer was not entitled to qualified immunity in lawsuit claiming that he enhanced the danger to a woman and her husband through his actions, resulting in a 13-year-old neighbor, accused of molesting their daughter, breaking into their home and shooting them while they slept, killing the husband and injuring the wife. Appeals court finds that his allegedly false assurances that he would tell the woman before he spoke to the neighbor's family, and that police would patrol the neighborhood created a false sense of security, resulting in the failure to take additional precautions.

     A woman in the state of Washington sued the city and one of its police officers after a thirteen year-old neighbor shot and killed her husband and severely wounded her. She claimed that the defendants violated her due process rights by failing to protect her and her husband, and in fact, by its inaction enhanced the danger to them.

     Several weeks before the shooting, she had called the police department and told the defendant officer that the 13-year-old neighbor had molested her nine-year-old daughter. She subsequently claimed to have warned the officer of the neighbor's "violent tendencies," including prior incidents that included fights at school, lighting a cat on fire, breaking into his girlfriend's house and attacking her with a baseball bat, and throwing rocks at a downtown building. She subsequently claimed that the officer assured her that she would be given notice prior to any police contact with the neighbor's family about her allegations. The officer later stated that he could not recall whether she asked to be notified prior to any contact with the neighbor's family.

     The officer forwarded his report to a child abuse and intervention center, but had no contact with the plaintiff again prior to the shooting. The day of the shooting, she called both the police officer and the child abuse center to inquire into the progress of the investigation, leaving messages.

     The officer spoke to the 13-year-old's mother and informed her of the child abuse allegations, and then went to the plaintiff's house and informed her of this. The plaintiff was upset about this having been done without notifying her and she expressed fear for her safety. The officer allegedly assured her that the police would patrol the area to keep an eye on the neighbor. In the morning, the neighbor broke into the house and shot the woman and her husband while they slept. The 13-year-old was later convicted of the premeditated murder of the husband and the attempted premeditated murder of the plaintiff.

     The plaintiff's claims against the city for alleged "failure to train" resulted in summary judgment for the city, as did all state law claims against both the city and the officer. The trial court denied, however, the officer's motion for summary judgment based on qualified immunity.

     The trial court found that a jury could find that the officer unreasonably created a false sense of security by agreeing to give the plaintiff advanced notice of advising the neighbor's family of the sexual molestation allegation, and assuring the plaintiff of a neighborhood patrol.

     A federal appeals panel, by a 2-1 vote, agreed with the trial judge. It found that if the officer's conduct was as the plaintiff alleged, it would violate her clearly established constitutional right to substantive due process under the "state-created danger" doctrine.

     Under DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), the court noted, the due process clause is interpreted as not requiring the state to provide its citizens with a minimum level of security, barring liability for failure to do so in most circumstances. Exceptions exist, including for circumstances when the government takes a person into its custody and holds him there against his will, and for instances of "state-created danger."

     Under the "state-created danger" doctrine, the court noted, plaintiffs can recover when a state officer's conduct places them in peril in deliberate indifference to their safety.

To find an officer liable under the "state-created danger" theory, a plaintiff must show that the officer's actions created or increased the danger facing him or her. Second, the plaintiff must demonstrate that the state official acted with deliberate indifference to a known or obvious danger.

     In this case, the court found, interpreting the facts in the manner most favorable to the plaintiff, it could be concluded that the officer did in fact increase the danger the plaintiff and her husband faced and acted with deliberate indifference to a known or obvious danger.

     The court reasoned that by informing the neighbor family of the sexual abuse allegations, he placed the plaintiff's family in a situation of danger greater than "they would have faced had he not acted at all." If the plaintiff had received the prior warning the officer allegedly promised her, she and her family "could have taken additional precautions," but they instead allegedly relied on the officer's promise of advanced notification.

     The officer also allegedly increased the danger by offering false assurances that the police would patrol the neighborhood the night of the shooting. "Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger." The plaintiff asserted that she and her husband based their decision to remain at home that night and leave in the morning in reliance on the promise that the neighborhood would be patrolled.

     The appeals court's majority concluded that the officer was not entitled to qualified immunity because his alleged actions would violate the plaintiff's clearly established constitutional rights.

     A strong dissent by one judge argued that the officer could not be said to have created the danger to the plaintiff, and that even if he did, the alleged right at issue was not clearly established, entitling him to qualified immunity.

     Kennedy v. City of Ridgefield, No. 03-35333, 2005 U.S. App. Lexis 12123 (9th Cir.).

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

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Federal appeals court overturns jury verdict of over $2 million, finding that exigent circumstances justified police officers' no-knock entry in home pursuant to search warrant.

     Kansas City police officers executed a search warrant to search a man's home for drugs and other contraband. In entering, they used a tactic called "dynamic entry," in which one officer, serving as a "ram officer," yelled, "Police, search warrant," and immediately hit the front door with his ram, breaking in on the third hit.

     Another officer, serving as "point man," entered the house before the residents had time to answer the door. When he reached the kitchen doorway, he saw an occupant running toward him pointing a handgun, yelled, "Police, search warrant, get down," and fired when the man did not lower his weapon, hitting him twice and causing serious injuries.

     The injured resident filed a federal civil rights lawsuit claiming that the officer who shot him used excessive force, and that an illegal entry had been made into his home, as well as other claims. The complaint alleged that the Board of Police Commissioners failed to train its officers on the Fourth Amendment restrictions on no-knock entries and acted with deliberate indifference to a custom and practice of no-knock entries.

     A jury found in favor of the officer who shot the plaintiff, rejecting the excessive force claim. The trial judge however, ruled as a matter of law that exigent circumstances did not justify the no-knock entry, and as a result of the jury instructions on the illegal entry and failure to train claims, the jury returned a verdict in excess of $2 million for the plaintiff.

     A federal appeals court disagreed, by a 6-1 vote, and ruled that the no-knock entry into the home was justified by exigent circumstances.

     The investigation began on the basis of an anonymous tip about criminal activity allegedly occurring at the home, including that the home was being used to manufacture methamphetamine, to sell crack cocaine and methamphetamine at the front door, and to store drugs. The tip also indicated that guns were kept in the bedroom and that the plaintiff's 26-year-old son lived in the house and had recently been arrested for possessing a sawed-off shotgun.

     Further investigation found methamphetamine residue in the trash, along with sandwich bags with the corners cut out, a common way for narcotics to be packaged and distributed, along with information verifying who lived in the house, and this resulted in the obtaining of a search warrant. The officers executing the warrant determined that it would be a "high-risk" situation and decided to use the "dynamic entry." While one ounce of marijuana was found in the home, no other drugs were found, nor was a methamphetamine lab discovered.

     The appeals court majority stated that to justify a "no-knock" entry, officers must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be "dangerous or futile," or that it would "inhibit the effective investigation of the crime" by allowing the destruction of evidence.

     The appeals court noted that nothing requires that warrants must specify the precise manner in which they are to be executed, but that this is generally left to the discretion of the executing officers to determine, subject to the general Fourth Amendment protection "against unreasonable searches and seizures." It rejected, therefore, the trial court's indication that it was a problem that the warrant itself did not call for a no-knock entry.

     The appeals court noted that suspicion that a house was harboring a clandestine methamphetamine lab has justified no-knock entries in prior cases. There is danger, testimony in the case indicated, from the chemicals and the types of products used to manufacture the drug. These chemicals are "very volatile, combustible, and "have caused explosion" and fire in the past. The officers also had been told that ongoing drug street sales had been reported from the house and that numerous weapons were kept there, as well as that the plaintiff's son, a resident, had recently been arrested on an illegal weapons charge. While this information turned out to be inaccurate, reasonable suspicion that an armed and potentially dangerous resident will be present has also frequently justified no-knock entries, the court pointed out.

     The court's majority found that this information established a reasonable suspicion of exigent circumstances justifying the no-knock entry, and overturned the award to the plaintiff.

     The appeals court also found that because the individual defendants did not violate the plaintiff's constitutional rights, his failure to train and custom and practice claims against the Board of Police Commissioners should not have been submitted to the jury.

     Doran v. Eckold, No. 03-1810, 409 F.3d 958 (8th Cir. 2005).

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

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Assault and Battery: Physical

     City's emergency medical technicians did not violate patient's Fourth Amendment rights or his due process rights when they restrained him during an emergency call and "hogtied" him because he was resisting their efforts to diagnose and treat him. The patient was then resisting them because of a diabetic episode, and the court rules that he was not then "mentally present," and therefore could not possibly have communicated a refusal of treatment. Davidson v. City of Jacksonville, No. 3:03-CV-343, 359 F. Supp. 2d 1291 (M.D. Fla. 2005).

Attorneys' Fees: For Plaintiff

     Arrestee who had settled wrongful arrest and search lawsuit for $100,000 after claiming $1 million in damages and being awarded only $18,908.50 by a jury, was properly awarded $126,786.50 in attorneys' fees, a substantial reduction in the amount of fees requested. The reduction was proper in light of the plaintiff only achieving partial success--approximately one-tenth of what he hoped to recover, and the fact that the case was "not particularly significant" and did not "directly enhance any particular public purpose." Hatcher v. Consolidated City of Indianapolis, No. 03-4280, 126 Fed. Appx. 325 (7th Cir. 2005).

Defenses: Absolute Immunity

     Assistant district attorneys were not entitled to absolute prosecutorial immunity for their alleged retaliation against employee of sheriff's office who allegedly revealed purported defects in child sex abuse investigations, since some of their actions were outside of the scope of their functions as prosecutors and not "closely associated" with a judicial process. Botello v. Gammick, No. 03-16618, 2005 U.S. App. Lexis 12122(9th Cir.). [PDF]

Defenses: Collateral Estoppel

     Arrestee whose murder conviction was upheld on appeal was barred from pursuing his federal civil rights lawsuit over the warrantless search of his apartment and storage locker when he had a "full and fair" opportunity to litigate the Fourth Amendment issues involved in those searches in his criminal trial, and it was determined that those searches were lawful. Simpson v. Rowan, No. 04-1897, 125 Fed. Appx. 720 (7th Cir. 2005).

Defenses: Indemnity

     Police officer was not acting within the scope of his employment when he allegedly injured a deputy sheriff at a defensive tactics training program by placing him in a neck restraint, causing him to fall. He was therefore not entitled to defense and indemnification by the county which employed him in a personal injury lawsuit filed against him by the deputy. Riehle v. County of Cattaraugus, 794 N.Y.S.2d 186 (A.D. 4th Dept. 2005). [PDF]

Defenses: Qualified Immunity

     Jury's finding that officer used excessive force resulting in broken wrist for drunk driving arrestee, and its finding that the officer was entitled to qualified immunity was not inconsistent, since it could have believed that the officer's use of force was excessive, but that he reasonably believed his conduct to be lawful under the circumstances. Kent v. Katz, No. 04-0880, 125 Fed. Appx. 334 (2nd Cir. 2005). [PDF]

Defenses: Service of Summons

     Woman's personal injury lawsuit against state police officer seeking damages after she was struck by fireworks was properly dismissed on the basis of her failure to serve the officer with a summons in the case or make a good faith effort to serve him. Miller v. Klink, 871 A.2d 331 (Pa. Cmwlth 2005). [PDF]

Defenses: Sovereign Immunity

     Texas city was entitled to a ruling on its motion for sovereign immunity before trial in motorist's personal injury lawsuit against city, police department, and officer who allegedly caused the motorist's auto accident. In re Greenwell and City of Texarkana, No. 06-05-0035, 160 S.W.3d 286 (Tex. App. 2005).

Disability Discrimination

     State police practice of recording, for internal purposes, mental health detentions as arrests did not violate equal protection of law, or federal disability discrimination statutes. Disability Advocates, Inc. v. McMahon, No. 03-7834, 674 (2nd Cir. 2005). [PDF]

False Arrest/Imprisonment: Warrant

     A parole officer was entitled to qualified immunity for deciding to arrest a parolee for a "technical" parole violation (working outside the state and possessing a cell phone) under a warrant, even though he knew that an intermediate state appeals court had granted the parolee a new trial, when he was unaware that the state's appeal to the state Supreme Court had been denied, or that the charges against the parolee had subsequently been dropped. Donaldson v. Mugavero, No. 04-1648, 126 Fed. Appx. 63 (3rd Cir. 2005). [PDF]

False Arrest/Imprisonment: Unlawful Detention

     Sheriff was not entitled to qualified immunity on detainee's claim that he was arrested by deputies without a warrant and then detained unlawfully for eight days without a judicial determination of whether there was probable cause for the arrest. Lingenfelter v. Board of County Commissioners of Reno County, Kansas, #04-1244, 359 F. Supp. 2d 1163 (D. Kan. 2005).

Firearms Related: Intentional Use

     Police officers were entitled to qualified immunity for mistakenly shooting a witness to a shooting who was crawling towards other officers with a gun in hand. Under the circumstances, a reasonable officer could have believed that the witness was the shooter and that they had probable cause to arrest him and use deadly force against him. Flynn v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005).

First Amendment

     Township's ordinance, providing for warrantless health and safety inspections of sexually oriented businesses, and disclosure of information concerning all partners and shareholders in such businesses, did not violate the First and Fourteenth Amendment, and was properly aimed at minimizing the adverse secondary effects caused by the establishments. Deja Vu of Cincinnati v. Union Township, No. 00-4420, 2005 U.S. App. Lexis 11807 (6th Cir.). [PDF]

     Bar patron's "animated" criticism of police officers' conduct to a crowd of bar patrons outside following a bar fight and some arrests, was not protected speech because it was aimed at inciting or producing "lawless action" and likely to result in such action. Further, even if his speech was constitutionally protected, the officer was entitled to qualified immunity for issuing the bar patron with a disorderly conduct citation, since the case law did not clearly establish that doing so was illegal. Carmack v. Trombley, No. CIV. 04-70110, 363 F. Supp. 2d 904 (E.D. Mich. 2005).

     City police officer did not violate the First Amendment rights of motorcycle club members in assisting festival in city park in expelling them for violating the festival's dress code by wearing club vests. The wearing of the vests did not involve expressive association protected by the First Amendment, the court rules, in the absence of any evidence that the club advocated a specific viewpoint. Villegas v. City of Gilroy, No. C01-20720, 363 F. Supp. 2d 1207 (N.D. Cal. 2005).

Interrogation

     Detective who had probable cause to arrest a suspect for murder before interrogating him was entitled to qualified immunity in suspect's lawsuit claiming that his rights were violated when the detective failed to videotape the interrogation, purportedly so that he could "fabricate" the suspect's confession. Arline v. City of Jacksonville, No. 3:03-CV-685, 359 F. Supp. 2d 1300 (M.D. Fla. 2005).

Negligence: Vehicle Related

     Police officer was not entitled to summary judgment in lawsuit by motorist whose vehicle was struck when the officer's car crossed over the double yellow line. Crossing the double yellow line into the opposing lane of traffic is negligence as a matter of law, the court stated, unless justified by an emergency situation not of the driver's own making, and the officer, who was driving to work at the time, failed to show that he was free of negligence in relationship to his vehicle allegedly being struck from the rear and forced into oncoming traffic. Foster v. Sanchez, 792 N.Y.S.2d 579 (A.D. 2nd Dept. 2005).

Negligent Hiring, Retention & Supervision

     New York City was not negligent in its retention and supervision of a police officer who shot and killed a man while off-duty following a altercation arising from a traffic dispute. There was no information from which the city knew or should have known that the officer, who subsequently was convicted of manslaughter and assault charges concerning the incident, had a propensity for violence. Kelly v. City of New York, 791 N.Y.S.2d 637 (A.D. 2nd Dept. 2005).

Police Plaintiff: Assault and Battery

     City of New York was not liable for police officers injuries when he was struck in the head with a flashlight by another officer while assisting in making an arrest. There was no evidence that the other officer acted with any intent to violate state criminal law, so there was no liability under McKinney's General Municipal Law Sec. 205-e imposing liability for police injuries caused by statutory violations. Warren v. City of New York, 791 N.Y.S.2d 650 (A.D. 2nd Dept. 2005).

Police Plaintiffs: Vehicle Related

     Trial judge improperly directed a verdict and award of damages for plaintiff police officer in his lawsuit against epileptic driver who allegedly failed to take his medicine, resulting in a seizure and auto accident. The officer claimed that the driver's actions resulted in him injuring the officer when he came to the accident scene and removed him from the vehicle, resulting in a struggle. Appeals court finds that the issue of whether the driver was responsible for causing the officer's injuries, as well as the amount of damages were both issues for the jury, and reinstates jury's verdict for the driver. Teklewold v. Taylor, No. A05A0427, 610 S.E.2d 617 (Ga. App. 2005).

     In a lawsuit by a police officer seeking damages for injuries she suffered at a construction site at which union picketing was occurring, a jury verdict form which asked them to determine whether picketers were negligent in pushing the officer into a vehicle driven by a subcontractor's employee was confusing. The officer's lawsuit was against the general contractor, subcontractor, and subcontractor's employee, and the jury found the union picketers 100% liable for the officer's injuries, even though they were not the defendants in the case. In light of the jury's confusion, a new trial was granted. Helton v. Hirschman, 794 N.Y.S.2d 162 (A.D. 4th Dept. 2005). [PDF]

Property

     Police officers' alleged failure to return a knife and money confiscated from a motorist during the stop and search of his vehicle was insufficient to support a constitutional due process claim when the seizure was "random and unauthorized" and there were adequate state law remedies for the motorist to seek compensation for his property. Alexander v. Hodell, No. 04-1889, 124 Fed. Appx. 665 (2nd Cir. 2005). [PDF]

Racial Discrimination

     Residents of "off-road," pre-dominantly Alaska Native villages failed to show that the State of Alaska discriminated on the basis of race in allegedly adopting a law enforcement system that provided more police protection for communities on the state's road system. They also failed to show that they were similarly situated with communities on the state road system, based on their geographical isolation and the impossibility of traveling to them by road vehicle. Alaska Inter-Tribal Council v. State, 110 P.3d 947 (Alaska 2005). [PDF]

Search and Seizure: Home/Business

     Officers' warrantless entry into home was justified by exigent circumstances when they were told that a minor might be consuming alcohol at home, no one responded to their knock on the front door, and they could observe, through a back window, minors who did not respond to yelling or knocking on patio door. Officers could, under the circumstances, reasonably fear for the safety of the minors based on possible alcohol poisoning. Galindo v. Town of Silver City, No. 03-2134, 127 Fed. Appx. 459 (10th Cir. 2005).

     Even if there were falsehoods in the anonymous tip received by a state trooper which was, in part, the basis for the issuance of a search warrant for the home, the warrant was lawfully obtained and any falsehoods were moot. The trooper obtained probable cause for the issuance of a warrant when he observed marijuana plants on the doorsteps of the home and boards over the windows. Edens v. Kennedy, No. 03-2108, 112 Fed. Appx. 870 (4th Cir. 2004). [PDF]

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     Publications: Mass Fatality Incidents: A Guide for Human Forensic Identification Technical Working Group for Mass Fatality Forensic Identification June 2005. In a mass fatality incident, correct victim identification is essential to satisfy humanitarian considerations, meet civil and criminal investigative needs, and identify victim perpetrators. This 96-page Special Report provides medical examiners/coroners with guidelines for preparing the portion of the disaster plan concerned with victim identification and summarizes the victim identification process for other first responders. It discusses the integration of the medical examiner/coroner into the initial response process, and presents the roles of various forensic disciplines (including forensic anthropology, radiology, odontology, fingerprinting, and DNA analysis) in victim identification. This guide represents the experience of dozens of Federal, State, international, and private forensic experts who took part in the Technical Working Group for Mass Fatality Forensic Identification. [PDF]

     Statistics: Family Violence Statistics: Including Statistics on Strangers and Acquaintances. Compares family and nonfamily violence statistics from victimization through the different stages of the justice system. Family violence is defined as all types of violent crime committed by an offender who is related to the victim and includes spouse abuse, parental violence against a child, and violence among other family members. Nonfamily relationships used for comparison include boyfriends and girlfriends, friends and acquaintances, and strangers. Data are drawn from victimization surveys, official police statistics, State and Federal court statistics, and surveys of inmates in State prisons and local jails. Highlights include the following: * Family violence accounted for 11% of all reported and unreported violence between 1998 and 2002. * About 22% of murders in 2002 were family murders. * Of the nearly 500,000 men and women in State prisons for a violent crime in 1997, 15% were there for a violent crime against a family member. 6/05 NCJ 207846 Press release Full report: Acrobat file (1M) | ASCII file (34K) | Spreadsheets (zip format 136K)

     Statistics: Traffic Stop Data Collection Policies for State Police, 2004 Presents findings from the 2004 Survey of State Police Agencies which obtained data from State police agencies on their policies and procedures for collecting race and ethnicity data regarding motorists involved in traffic stops. The circumstances under which demographic data are collected for traffic-related contacts and violations are presented. The survey asked if the data collected were stored in an electronically accessible format. Findings are compared to those found during previous surveys conducted in 1999 and 2001. 6/05 NCJ 209156 Acrobat file (544K) | ASCII file (9K) | Spreadsheets (zip format 3K)

     Statistics: Violence by Gang Members, 1993-2003 Provides estimates of the number and rate of violent crimes committed by offenders that victims perceived to be members of gangs based on the National Crime Victimization Survey data. This Crime Data Brief also presents information on demographic characteristics of the victims of violence by gang members such as race, age, and gender, and characteristics of the incident such as police notification and number of offenders. Trends in violence by gang members are also examined. 06/05 NCJ 208875 Acrobat file (91K) | ASCII file (4K) | Spreadsheets (zip format 4K)

     Stress: Stress Among Probation and Parole Officers and What Can Be Done About It. June 2005 [PDF] Probation and parole officers experience a great deal of job-related stress. A recent study investigated the nature and scope of the problem at nine sites around the country. Researchers identified the major sources of stress (heavy caseloads, paperwork, deadlines) and what officers do to cope. This Research for Practice summarizes key findings and provides case studies of promising stress reduction programs.

     Reference:

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

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