CONTENTS

Officers did not use excessive force in pulling motorist from his vehicle and handcuffing him at the conclusion of a thirty-minute pursuit after observing his erratic driving. Officers could reasonably have believed he was intoxicated, and was uncooperative, and their actions were "measured" under the circumstances, as they did not then know that he was undergoing diabetic shock rather than intoxication.

     South Dakota officers observed a motorist allegedly driving erratically and turned on their flashing blue lights, attempting to pull over his vehicle, and radioed in to state Highway Patrol officers and the county sheriff's office that they were in pursuit of a possible drunk driver. Officers from the three agencies pursued the motorist for approximately 30 minutes with lights and sirens activated, but he would not stop, so the deployment of tire-deflating spikes was authorized.

     The motorist drove over the spikes, but kept going with deflating tires. A "rolling roadblock" was then setup in which law enforcement vehicles pulled in front of, and behind, his vehicle, and then slowed down until his vehicle was stopped on the side of the road. The motorist refused repeated commands to exit his car, and two officers reached through the open driver's door, grabbed his arms, and pried his grip from the steering wheel, pulling him out of the car and placing him on the road face down, putting his arms behind his back and handcuffing him.

     The motorist complained on pain in his left arm and shoulder. The officers determined that the motorist was not intoxicated but instead suffering from diabetic shock, so they removed his handcuffs, gave him a glucose tube, provided medical care for cuts on his wrist and a cut over his eye, and waited for an ambulance to arrive.

     The motorist claimed that the officers violated his constitutional rights and used excessive force in removing him from the car and handcuffing him.

     A federal appeals court has upheld summary judgment for the defendants. The officers in this case believed that the motorist was intoxicated while driving, based on their observation of his erratic driving, and had attempted to stop his vehicle for thirty-minutes. They were entitled, under the circumstances, to stop the motorist and ask him to exit his vehicle, and the motorist refused to cooperate with this reasonable order, giving the officers justification to use force to remove him, especially given the potential threat to the public posed by an apparently impaired driver in command of a running vehicle.

     The appeals court found that the evidence did not support the plaintiff's claim that the officers acted with unnecessary roughness and unreasonably shoved him face first onto the concrete highway. While it turned out that the motorist was not intoxicated, and was scared and hard of hearing, at the time, the officers did not know that his actions were the result of a diabetic seizure, and did not know what level of risk he posed, including whether he had a weapon. They removed the handcuffs immediately and administered immediate medical attention after learning of his medical condition. This showed that the use of force was "measured, brief, and appropriate" to accomplish the purposes of the stop--securing the motorist and his vehicle, ensure that no criminal activity was ongoing, and preserve the safety of the public, the motorist, and the officers.

     Janis v. Biesheuvel, No. 05-1660, 2005 U.S. App. Lexis 22991 (8th Cir.).

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New York school burglar's claim that police officers beat him and then threw him out of a third-story school window, made for the first time nine months after the incident, and supported almost exclusively by his own testimony, was one that no reasonable jury could believe. Trial judge acted properly in granting summary judgment for the defendants based on a finding that the plaintiff's story was unbelievable and contradicted by his own prior inconsistent statements as well as by other evidence.

     A New York man filed a federal civil rights lawsuit claiming that two police officers beat him up and then threw him out of a third-story window. His claims were "largely unsubstantiated" by any direct evidence, and he relied almost exclusively on his own testimony in presenting his case. The trial court, granting summary judgment for the defendants, ruled that the plaintiff's testimony was so "replete with inconsistencies and improbabilities" that no reasonable juror would make the "suspension of disbelief" necessary to believe his story.

     Despite a general rule that trial judges should not weigh the credibility of witnesses in ruling on summary judgment motions, a federal appeals court, in upholding summary judgment, stated that when the plaintiff relies almost exclusively on his own testimony, the trial judge can, for the purposes of deciding whether there are any "genuine issues of material fact," make a determination as to whether a reasonable jury could believe the plaintiff.

     The officers, who had identified the plaintiff as a suspect in a series of public school burglaries, allegedly found him on the third floor of a public school, beat him in the head, chest, back and arms, and caused him to lose consciousness. He later allegedly awoke with searing pain in his leg on the pavement below an open window of the third-story classroom. He asserted, but did not recall, due to his lack of consciousness, that one or more of the police officers must have thrown him out of the window because he does not remember jumping out or falling while attempting to escape.

     An officer present at the scene stated that he saw the plaintiff inside a locked classroom, where he had entered through a broken window, and that when he shouted "Police, don't move," the plaintiff dropped the stolen items he had gathered and jumped out of an open window. The other officers testified that they never entered the classroom while the plaintiff was still in the building.

     There was also an undisputed record that the plaintiff had confessed to having jumped out of the third-story window of the school building on at least three occasions--to medical personnel on the day of the incident, in an interview conducted two days after the incident by a police sergeant, and in a statement to risk screening personnel from the New York City Department of Corrections. In each of these statements, he made no mention of any police misconduct.

     He later signed a written confession to twelve burglaries, but that confession made no mention of any police mistreatment, and the plaintiff did not mention it at his arraignment, guilty plea, or sentencing, first claiming that he had been beaten and thrown out of the window by police officers nine months after the incident.

     The plaintiff was unable to identify any of the officers he claimed beat him, or even describe their ethnicities, physical features, facial hair, weight or clothing, and he could not recall how many police officers were allegedly in the classroom. Medical personnel summoned to the school after the fall reported that the plaintiff had not lost consciousness, and this was confirmed by the plaintiff in his own statements to a doctor who examined him at a hospital hours later. There was also no evidence of any head trauma.

     Given this record, the appeals court ruled, the trial court, even after drawing all inferences in the light most favorable to the plaintiff, could properly conclude that no reasonable person could believe the plaintiff's testimony, so that summary judgment for the defendants was appropriate.

     Jeffreys v. City of New York, No. 03-257, 2005 U.S. App. Lexis 22317 (2d Cir.).

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Officer's use of Taser to restrain an uncooperative epileptic who had just suffered two seizures and was resisting medical personnel was not an excessive use of force. In fact, the court reasoned, it may have prevented much greater harm to him or to other people present.

     A Texas man suffering from epilepsy claimed, in his federal civil rights lawsuit, that a police officer used excessive force against him, and that the city and police chief should also be held liable on theories of municipal and supervisory liability. The officer had come to the man's home after his wife called 911, reporting that her husband had phoned her, reporting that he was experiencing symptoms that were a possible precursor to a seizure.

     Emergency medical technicians dispatched there observed him having a "grand mal" followed by a second one. When this seizure ended, he opened his eyes, took off an oxygen mask that had been placed on him, jumped up and became combative. The EMTs were unable to restrain him and he ran out of the apartment, falling multiple times on the sidewalk. When EMTs attempted to secure the man for transportation by placing the straps of a stretcher on him, he started becoming violent and combative again, kicking his legs, swinging his arms, and punching them.

     A police officer on the scene observed this, and repeatedly ordered the man to calm down and cooperate, but he did not respond. The officer, believing that controlling the "muscular, sweaty, mostly unclothed individual" was going to be very difficult, especially in a confined space like an ambulance, pulled out his Taser, showed it to the man, and warned him that it would be used if he did not calm down and stop resisting.

     The man then made a move to stand up, and the officer, "in fear of getting someone hurt," and believing that he had no other choice, applied the Taser directly to the man's upper back for approximately two seconds, which changed his behavior immediately. He became cooperative and appeared to regain full control of his mental faculties, and was transported to the hospital.

     He later admitted that he had been drinking beer and vodka the night before the incident, and that he was also on a cycle of illegal steroids at the time, injecting himself with 200 milligrams of testosterone and 200 milligrams of decadurabolin on a weekly basis.

     The trial court found that the officer's actions were proper under his "community caretaking" function and were designed to seize the plaintiff in order to ensure his safety and the safety of others. Under the circumstances, the officer was justified in entering the ambulance, taking control of scene safety, and using force to restrain the plaintiff so that he could be provided with needed medical treatment.

     While the plaintiff suffered some temporary pain, the red marks from the Taser gun did not require any medical treatment beyond one application of "salve," and were not permanent, possibly healing the same day. Far from constituting excessive force, the officer's decision to use the Taser "may well have prevented much greater harm to the plaintiff and/or to other people in the ambulance" had the officer engaged in a physical struggle to restrain him.

     The trial court also found no basis for liability on the part of the city or police chief.

     Stanley v. City of Baytown, #4:04-cv-02106, 2005 WL 2757370 (S.D. Tex. 2005).

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Campus police officer who arrested "campus-evangelist" for disorderly conduct for making rude and confrontational speech to student crowd calling them "fornicators," "whores," and drunken "little devils" was entitled to qualified immunity even if the speech was possibly protected by the First Amendment. Given the manner of the speech and the crowd's reaction, a reasonable officer could have believed there was probable cause for an arrest.

     A self-styled "campus-evangelist" with no formal religious training has been making appearances at college campuses across the country since 1982, preaching against what he calls the "big four"--"drugs, sex, booze, and rock and roll." He was arrested for disorderly conduct on the campus of Indiana University of Pennsylvania, a state university. He filed suit claiming that his arrest was a violation of his First Amendment rights, and the trial court found that the arresting officers were entitled to summary judgment on the basis of qualified immunity.

     When the arrestee appeared at the university, he was accompanied by 25 members of the "Campus Ministry," and he preached on the evils of pre-marital sex, drinking, and homosexuality. About 75-100 students gathered, and the arrestee, "in a provocative manner," allegedly accosted the crowd, stating that the student body was full of "fornicators," "whores," "drunken little devils," and "freaks." The speech and his manner drew negative reactions from the crowd of students, one of whom threw an apple at him, and one of whom shouted, "get your f--king God off our campus." The arrestee then asked if the student was a communist, and called another student a "high school flunky." He also responded to a man who told him he could not preach while classes are in session, because he was interrupting them, by stating that "oh yes I will, devil."

     The crowd of students allegedly became more "animated" in response to his "invective against homosexuals, as he stated that "nothing is lower than a lesbian," warned that homosexuals and lesbians were "headed for hell," and asked one self-proclaimed Christian lesbian present "do you lay down with dogs? Are you a bestiality lover?" Two members of the campus police force then arrived in response to a call reporting that a "near riot" was taking place. One of the officers then placed the "preacher" under arrest for disorderly conduct and transported him to the school's Public Safety building, where he was held for three to four hours before being taken to the county correctional facility, where he was released on bond four days later. The criminal charges were later dismissed.

     A federal appeals court upheld qualified immunity for the defendant arresting officer. The court did believe that much of the arrestee's speech was protected by the First Amendment, and that even much of it which was "questionable" and derogatory towards the crowd in general, was not sufficiently provocative to constitute "fighting words," even though unpleasant.

     Some of his statements, however, to the extent that they were directed at a particular person, such as the self-identified Christian lesbian, "were especially abusive and constituted fighting words" which can be prohibited. But even if they did not fall into that category, the appeals court reasoned, the arresting officer was entitled to qualified immunity, as it would not have been clear to a reasonable officer that there was no probable cause to arrest.

     The arrestee's speech was "rude, mocking, confrontational, and insulting." and many people in the crowd were upset and angry with him by the time the officer intervened. The words directed at the "Christian lesbian," in particular were "abusive, akin to a racial slur," and for a police officer confronting the arrestee in the field, "with little time" to analyze the arrestee's speech, it was "not unreasonable" to believe that he had engaged in disorderly conduct. At the very least, the court found, "reasonable minds" could disagree as to whether the arrestee's speech was protected, mandating an award of qualified immunity.

     Gilles v. Davis, No. 04-2542, 2005 U.S. App. Lexis 23001 (3d Cir.).

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Casino security officer, licensed to make warrantless arrests on her employer's premises under Michigan law, acted under color of state law in detaining 72-year-old woman for picking up a five cent token from the tray of an unoccupied slot machine. Federal appeals court upholds jury determination that the detention was an unlawful arrest and violated the woman's civil rights. $875,000 punitive damage award, however, ordered reduced to $600,000 in lawsuit in which plaintiff was only awarded $279.05 in compensatory damages.

     A 72-year-old woman and two of her friends went to a Michigan casino to gamble and have lunch. While playing slot machines, she noticed a five cent token lying in a vacant slot machine's tray. She picked up the token and returned to her own machine, intending to use it there. She was then accosted by a number of casino employees, including a casino security officer, who told her that it was the casino's policy not to permit patrons to pick up tokens which appeared to be abandoned, found at other slot machines.

     The security officer claimed that the woman became "loud and belligerent," so she was escorted to another room, where she allegedly intended to explain the policy in detail. The woman claimed that she was not detained because of her attitude, but because she was suspected of theft. She was allegedly accused of stealing the token, and had a nickel removed from her winnings. She complied with requests to produce her social security card and driver's license, which were photocopied. The woman was then photographed. She subsequently claimed that the security officer had said she was a police officer and had a badge.

     The woman was told that she was barred from the casino for six months. The security officers at the casino were licensed under state law as "private security police officers," and have the power to arrest without a warrant on their employer's premises.

     The woman sued the casino and the security officer for violating her federal civil rights by arresting her without probable cause. While the casino and officer claimed that they did not act under color of state law as required for federal civil rights liability, the trial court instructed the jury as a matter of law that they did act under color of law. The jury found both the casino and the officer liable for false arrest under both federal and state law. It awarded $279.05 in compensatory damages and $875,000 in punitive damages against the casino and $500 in punitive damages against the officer.

     A federal appeals court upheld the determination that the security officer acted under color of state law, as her arrest powers, while on duty and on her employer's premises to "arrest a person without a warrant as set forth for public peace officers." Such powers, the court found, are traditionally the exclusive prerogative of the state, so the security officer was a state actor as a matter of law at the time of the incident.

     The appeals court also upheld jury instructions which led the jury to conclude that there was no probable cause to arrest the woman based on the lack of any evidence that the five cent token she found was the casino's property rather than abandoned by a prior player at the slot machine. The trial court's instructions to the jury stated: 

This case, as we all know, involves a token, a five cent token. The plaintiff as the finder of a lost or abandoned token, has superior title to that token than does the Motor City Casino. In determining whether the token was lost or abandoned, you are to use your common sense and consider whether there was any other rational circumstance for that token to be in that tray. The only person who has a superior right to that token other than the plaintiff, is the person who lost it or the person who abandoned it.

     At the same time, the appeals court found that the jury's assessment of $875,000 in punitive damages against the casino was unconstitutionally excessive. While the appeals court found the defendant's treatment of and detention of the plaintiff reprehensible, and a jury could find that the security officer acted with "intentional malice" in light of the insignificance of the five cent token, the amount awarded as punitive damages was still found to be out of line, although an award of punitive damages was justified.

     Because the plaintiff was not "beaten, charged or tried," the appeals court stated, it thought that punitive damages no greater than $600,000--60% of the casino's daily take at the time of the verdict, would satisfy the demands of due process. On remand, the appeals court found, the trial judge must allow the plaintiff the option of accepting a $275,000 reduction in the punitive damages award to $600,000 or instead proceeding with a new trial on the issue of damages.

     Romanski v. Detroit Entertainment, No. 04-1354, 2005 U.S. App. Lexis 23336 (6th Cir.).

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Lawsuit against the U.S. government for alleged FBI complicity in the organized crime murder of a man purportedly ordered by two high-level FBI mob informants was barred because the victim's spouse failed to file an administrative claim with the FBI for over two years after she should have known, from publicly available information, that she had a possible claim.

      The wife and estate of a murdered man filed a lawsuit against the U.S. government for wrongful death and emotional distress arising from the murder. The murder is alleged to have arisen from a "long and sordid history" between certain Boston FBI agents and the "Winter Hill Gang," an organized crime syndicate in Boston. The Defendants in the lawsuit were the U.S. and individuals who were once members of the FBI, the Winter Hill Gang, or both.

     The claims against the U.S. government were brought by the murder victim's estate under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671-2680, under which the government consents to certain lawsuits against it for damages. One condition of that statute is that a plaintiff has to file an administrative claim within two years of the accrual of the cause of action. The trial court, in this case, found that the claim accrued more than two years before the plaintiff filed an administrative claim, however, and dismissed the claim therefore for lack of jurisdiction.

     The Winter Hill Gang was the dominant organized crime syndicate in the Boston area in the 1970s and 1980s, and was involved in murder, bribery, extortion, loan sharking and illegal gambling. FBI agents recruited a number of prominent members of the gang as informants, and they cooperated with the FBI in activities which allegedly included helping to bring down the Winter Hill Gang's main rival in Boston area crime, the local branch of La Cosa Nostra.

     The two high level informants recruited by the FBI were allegedly responsible for multiple murders while acting as informants, including the plaintiff's husband. The FBI, allegedly, turned a "blind eye" to the informants' crimes in order to keep them happy, and failed to follow FBI guidelines for dealing with informants. The FBI is alleged, by the plaintiff, to have interfered with the investigation of the informants for the murder of her husband by preventing Oklahoma FBI agents from interviewing them, as well as by telling the informants of certain "bugged" locations to prevent them from incriminating themselves.

     The plaintiff's husband, who was involved in gambling, was found dead in the trunk of a car at the Miami airport in August of 1982. The plaintiff claims that the two FBI informants directed a third man to kill her husband to prevent him from cooperating with law enforcement authorities on another murder investigation, and because he allegedly knew about a profit skimming scheme the two informants had concerning certain gambling operations.

     Boston newspapers reported possible FBI complicity in the murder of the plaintiff's husband as early as March of 1996. National TV broadcasts reported similar information in 1998. In 1999, the murderer agreed to plead guilty, and while portions of his plea agreement were sealed, it was also reported that he would implicate the two high level FBI informants in the crime. The actual entering of the plea took place in April 2001 in Florida state court.

     On May 14, 2002, the plaintiff filed an administrative complaint with the FBI on behalf of her husband's estate.

     The trial court found, however, that based on all the publicly reported facts, the plaintiff should objectively have known of her claim by October 1, 1999. A judge's opinion in another case, issued on September 15, 1999, extensively discussed the alleged corrupt relationship between the FBI and its two high level mob informants. The publicity, the appeals court agreed, should have given the plaintiff knowledge of her possible claim and prompted her to obtain certain publicly available documents, and could have been the basis for her filing an administrative claim at that time.

     The appeals court rejected the argument that the time within which to file an administrative claim was tolled (extended) by the FBI's alleged fraudulent concealment of the facts of the case. Even if the FBI did continue to attempt to conceal the alleged misconduct after October 1, 1999, the court found, the general outline of the facts were publicly known by that date.

     Accordingly, the plaintiff filed her administrative claim more than two years after she should have had knowledge that she had a claim, so that her lawsuit under the FTCA was barred.

     Callahan v. U.S., No. 04-2466 2005 U.S. App. Lexis 22395 (1st Cir.).

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Arrestee's conviction for obstructing an officer did not bar his federal civil rights lawsuit for excessive force by an officer who shot him in the buttocks with his handgun while intending to draw and fire his Taser gun instead.

     A man suffered personal injuries when a Sacramento, California police officer shot him in the left buttock while four officers were trying to subdue and transport him to jail following his arrest for driving under the influence of alcohol. As the arrestee, who was handcuffed and in legal restraints, struggled and squirmed, the officer, intending to draw and fire his Taser gun, instead pulled out and discharged his nine-millimeter pistol.

     The arrestee was convicted of obstructing an officer in the performance of his duty, and then filed a federal civil rights lawsuit against the city and the shooting officer for use of "grossly excessive force."

     By agreement of the parties, a bench trial was held solely on the issue of whether the plaintiff's civil rights claim was barred as a matter of law by his plea of no contest to the criminal charge of obstruction which resulted in his conviction. The trial judge ruled that this plea did bar the lawsuit under the principles established by the U.S. Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994). Under that ruling, a plaintiff may not pursue a federal civil rights lawsuit for damages if a favorable award in that lawsuit would necessarily imply the invalidity of a criminal conviction which has not already been overturned on appeal or otherwise set aside.

     A federal appeals court found that the trial judge's ruling was erroneous because the excessive force claim in the lawsuit did not necessarily imply the invalidity of the misdemeanor conviction for obstructing the officers in the course of their duties. It therefore ordered further proceedings on the underlying excessive force claim.

     The plaintiff in the immediate case, while interfering with the performance of the officers' duties at the time he was shot, had committed several prior acts of resistance and obstruction during the encounter, including kicking, screaming, and banging in the back of an officer's patrol car, disobeying an officer's order to sit down, resisting the efforts to handcuff him, kicking a window out of a patrol car and causing the glass to shatter on an officer, and forcibly resisting the attempts to the officers to transfer him to another vehicle, as well as spitting at one of the officers. Any one of these prior acts was sufficient to support a conviction for willful obstruction of a peace officer, the appeals court noted.

     Accordingly, the appeals court found, had the only act that could have formed the basis for the plaintiff's conviction been his resistance to the officers at the time he was shot, his claim would be barred by Heck. Since the uncontradicted evidence showed, however, that the arrestee violated the statute a number of times before the officer pulled out his firearm, and the record in his criminal proceeding was silent as to which act or acts formed the factual basis for the plaintiff's admission that he obstructed the officers, his civil rights claim for excessive force would not necessary imply the invalidity of his criminal plea, so Heck did not bar the lawsuit.

     Yount v. City of Sacramento, No. C046869, 2005 Cal. App. Lexis 1732 ( Cal. App.).

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Police officer acted reasonably in shooting a man who had barricaded himself in his bedroom armed with a number of guns after officers came to his house in response to a domestic disturbance call, and who threatened to shoot officers if they attempted to remove him from the home. Just prior to the officer shooting him, the suspect had raised a window and announced that he now had a "clean shot."

     Utah police officers who went to a man's home after receiving a 911 call from his wife reporting a domestic dispute found him barricaded in his bedroom, armed with weapons, and threatening to shoot anyone who attempted to remove him. He stated that he had been drinking and he was also taking antidepressant medication. His wife also indicated that her husband had attempted to harm himself. Attempts to get him to relinquish his weapons or otherwise cooperate with the officers proved to be of no avail. The police chief summoned the SWAT team to the location, and a trained hostage negotiator spoke to the man on the phone for over an hour to try to convince him to come out of the home.

     The man repeatedly made reference to his guns and his past violent history with police officers during the conversation, stating that he had previously pulled a gun on a county sheriff, and warning officers not to enter his home. He stated that his gun would go off if anyone opened the door.

     Officers believed that they heard the sound of a shotgun shell being chambered inside the house. The man came outside the residence armed, and refused to drop his weapon, taking note of the locations of the officers outside. He then went back inside, still armed, slid open a window and propped it up with a gun. The man looked at an officer who was positioned in a tree outside his window, and yelled that officers in the backyard should know that the back screens were off the window so "I got a CLEAN shot." Upon hearing this, an officer shot the man.

    The man and his wife filed a federal civil rights lawsuit claiming that this constituted excessive use of force.

     Upholding summary judgment for the defendant city, police chief, and police officer, a federal appeals court ruled that the seizure of the man was not unreasonable under the circumstances and did not violate the Fourth Amendment, that the chief's summoning of the SWAT team did not render the police presence around the house unreasonable, and that the ultimate use of deadly force against the man was justified by the circumstances.

     The wife had argued that after initially making the 911 call, she had told an officer who called back not to come to the home as everything was ok. The appeals court found that the officers acted reasonably in still replying to the call by sending officers to the scene, as they could have believed that the wife had retracted her request for assistance under threats or because of drawn weapons.

     Given that the suspect was barricaded in his room with access to weapons and ammunition, and threatened to fire five shotgun shells into the door when the police chief checked to see if it was locked, the chief did not act unreasonably in requesting the passive assistance of the SWAT team in securing the parameter of the home.

     And finally, the suspect's conduct, combined with his threats to shoot officers, and his statement that he now had a "clean shot" made the decision to shoot him at that point reasonable, as the shooting officer could reasonably then believe that the suspect posed a threat to himself and other officers.

     There was no need, the appeals court pointed out, for the shooting officer to have to wait to be shot at or even to see the suspect raise a gun and point it at him before it would be reasonable for him, under these circumstances, to shoot the suspect.

     Phillips v. James, No. 03-4272, 422 F.3d 1075 (10th Cir. 2005).

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Officers who shot at car containing suspect attempting to flee from service of felony drug arrest warrant were not liable for subsequent death of one of his passengers and serious injuries to another when his car later crashed into a wall. The cause of the death and injuries was the suspect's decision to flee, not the officers' use of deadly force. Shooting at the suspect was reasonable when an officer believed that the suspect was trying to run him over.

     Members of a Florida county sheriff's SWAT team went to a residence to serve a felony drug arrest warrant on a suspect with 40 previous arrests and 19 convictions. As they approached, they learned that the suspect and two other males had exited the house and were seeking to escape in a vehicle. SWAT team members with their guns drawn surrounded the car. One of them sought to disable the vehicle by shooting at a tire, but missed, and when one officer saw the car coming towards him, and believed that it would run him over to escape, he fired two shots at the driver, and jumped out of the way as the car swept by. One shot struck the driver's door, and the other went through the driver's side window and hit the driver, the suspect, in the back.

     Despite this, the driver accelerated the car and went west for over 0.3 miles without slowing, and then, when it confronted a police vehicle, went onto the grass and sidewalk, crashing into a concrete wall. The driver was pronounced dead at the scene, along with one of his two passengers. The other passenger, sitting in the backseat, sustained blunt force trauma injuries to the skull.

     The injured passenger and the estate of the deceased passenger filed federal civil rights lawsuits claiming excessive force, failure to protect, and supervisory and municipal liability.

     Upholding summary judgment for the defendants, a federal appeals court found that the officers' actions were not the proximate cause of the injuries to one plaintiff and the death of the other. One of the officers, the court noted, even though he shot at the vehicle, did not even strike it.

     The real proximate cause of the injuries and death, the appeals court found, was the driver's decision to continue his flight and his continued exercise of control over his car even after he was shot. This, the court reasoned, was the "intervening cause" of the injuries and death.

     Indeed, the driver began to implement his escape from the officers before any deadly force was applied, and his "reckless driving" preceded any shots, continued as shots were taken, and continued after the shots were fired. His decision to flee was "not a reaction to the force" used by the officers. Instead, his behavior prior to the shots established that he had no intention to drive safely regardless of whether shots were fired.

     The officers therefore could not be held liable for damages on the basis of their decisions to use deadly force.

     The appeals court also found that the two passengers were not "seized" by the officers' actions in shooting at the car and driver, and that the use of deadly force against the driver was reasonable when it appeared to the officer that the driver was trying to run him over.

     Troupe v. Sarasota County, Fla., #04-10550, 419 F.3d 1160 (11th Cir. 2005).

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Federal appeals court: California statute, in imposing criminal penalties for making knowingly false complaints of misconduct against police officers, while failing to prohibit knowingly false statements supportive of the same officers, violates the First Amendment through improper viewpoint discrimination.

     A California man challenged his conviction for filing a knowingly false complaint of police officer misconduct in violation of California Penal Code section 148.6(a)(1). He claimed that the statute, by imposing criminal penalties on knowingly false speech against police officers, while leaving unregulated knowingly false speech which was supportive of police officers, unconstitutionally discriminates on the basis of a person's point of view, in violation of the First Amendment.

     A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit agreed with the petitioner, and found that he should have therefore been granted habeas corpus relief from his conviction.

     He had been arrested by two California police officers for theft of service for retrieving his car from a mechanic without paying. Several months later, he filed a claim for damages form with the City of El Cajon, which employed the officers, claiming that one of the officers injured him during the arrest, hitting him in the ribs, twisting his wrist, and failing to secure him in the police vehicle with a seat belt, so that he struck his head during sudden stops. He also sent a letter to the police department internal affairs division making the same complaints and also claiming that he was strip-searched by the officer. The letter was signed under penalty of perjury.

     The county prosecutor later filed a misdemeanor criminal complaint against him in state court, charging him with filing a knowingly false allegation of officer misconduct in violation of the statute. Testimony by both the arresting officer and by another witness indicated that the arrest was routine and that the officers did not use excessive force against the arrestee. The letter he had sent to the internal affairs division was also introduced into evidence. A jury found him guilty of violating the statute by making knowingly false accusations of misconduct against the officer.

     The statute makes it a misdemeanor to file any claim of misconduct against any peace officer knowing the allegation to be false. Any law enforcement agency that accepts an allegation of misconduct in California is required to make the complainant read and sign an advisory statement warning him, in part, that it is

AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER KNOWING THAT IT IS FALSE, YOU CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.

     The arrestee in this case never signed such an advisory before making his complaint, but rather sent his own informal letter to the police department, signed under penalty of perjury, and this letter was the basis for his prosecution. The appeals court assumed, for purposes of the appeal, that signing the advisory was not an essential element of the offense, since that claim had been rejected by both state courts and the federal trial court. The court also noted that the protection given to peace officers under the statute was unique under California law, as it is not a crime to knowingly make false accusations against a firefighter, paramedic, teacher, an elected official, or anyone else.

     The statute was motivated in part, the court acknowledged, by the perceived abuse of citizen complaint procedures by "less ethical citizens," who allegedly filed a perceived rising tide of knowingly false citizens' complaints of misconduct by officers performing their duties.

     The appeals court found that the statute improperly discriminated on the basis of viewpoint in violation of the First Amendment by singling out speech critical of peace officers for special criminal sanctions.

The state's asserted interest in saving valuable public resources and maintaining the integrity of the complaint process is therefore called into question by its choice to prohibit only the knowingly false speech of those citizens who complain of peace officer conduct. [...] The statute's under-inclusiveness is particularly troublesome in this case because section 148.6 is necessarily limited to criticism of government officials -- peace officers.

     Had a witness to the arrest who favored the police officers made a knowingly false statement to investigators, for example, that she had seen no signs of excessive force during the arrest, the appeals court stated, she would not have faced criminal sanctions under the statute. Similarly, had the arresting officer the arrestee accused of misconduct made a knowingly false statement to investigators, he would not have faced criminal sanctions under the statute. Therefore, the appeals court reasoned, while the making of knowingly false statements can be prohibited and is not generally protected under the First Amendment, the problem with this statute in particular was that it singled out knowingly false criticism of police, while failing to prohibit knowingly false defense of the same officers, improperly regulating speech on the basis of a speaker's viewpoint.

We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.

     Chaker v. Crogan, No. 03-56885, 2005 U.S. App. Lexis 23728 (9th Cir.).

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

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Enrollee in community college class intended as police training could not recover damages for injuries suffered during role playing takedown maneuver exercises on the basis of alleged negligence by the college and its instructors. As the risk of injury was inherent in the nature of the exercises and "obvious," he assumed the risk of injury and could not recover damages in the absence of intentional injury or reckless conduct.

     A California man who wished to become a helicopter search and rescue pilot, to improve his chances of being hired, enrolled in a class at a public community college entitled "Administration of Justice: Arrest, Communications, and Firearms." The course, while open to any student who could pass a firearms background check was designed to meet the training course requirements of the Commission on Peace Officer Standards and Training (POST) for individuals having peace officer powers under state law. The course covered "ethics, courts, community relations, laws of arrest, use of force, search and seizure, investigations, arrest and control methods, shooting principles, and range qualification."

     The class was taught by a chief of police who taught the lecture portion, while other officers taught the control methods and firearms portions. Lectures were given on arrest and control techniques, and students were subsequently told that they would be playing the roles of police officer and suspect in order to learn the techniques.

     The plaintiff, who weighed 230 pounds and was 6' 1" was paired up with another student who weighed 190 pounds and was 5' 10". Several takedown moves were demonstrated and then the students practiced on each other. One such takedown maneuver was described as a forehead sweep, in which the arresting officer would come from behind the suspect, wrap his right hand around the suspect's face and grab the bridge of the nose, put his right elbow in the suspect's back, and then pull the head back to compress the neck into the spine, causing the suspect to fall to the ground, with the officer to stand to the left of the subject at a 90-degree angle.

     When the plaintiff and his partner practiced this maneuver, with the plaintiff serving as the suspect, as his partner pulled him down, the plaintiff hit his neck on the partner's knee, and sustained a herniated cervical disc and other injuries that required surgery. The plaintiff complained that students had not received, at any time during the class, verbal or written instructions on where to place their feet during the maneuvers. An officer demonstrating the forehead sweep, however, would step aside as he pulled the suspect down. After learning how the plaintiff's partner performed the forehead sweep maneuver on the plaintiff, two instructors in the class stated the opinion that the partner had performed the maneuver incorrectly and that his feet were not correctly positioned when the injury occurred. The plaintiff later stated that he had been concerned about whether a prior neck injury would be a problem in participating in the maneuvers, but did not say anything to anyone about this prior to his injury.

     The injured student sued the college, seeking damages for his injuries, and claiming that the school negligently failed to inform him when he registered for the class of the risk of injury from participating in the takedown maneuvers, failed to evaluate or screen him or advise him to do the same, in light of the class's physical requirements and risk of injury, and failed to supervise and properly train him and his classmates to perform the takedown maneuvers correctly.

     The trial court found that the doctrine of "primary assumption of the risk" applied to the plaintiff's claims. The evidence presented by the plaintiff showed, at most, that the instructors of the course "may have been negligent." But that was insufficient as a matter of law for liability under these circumstances. Instead, the plaintiff was required to show that there were material issues of fact as to whether the defendants intentionally injured the plaintiff, or engaged in conduct that is "so reckless as to be totally outside the range of the ordinance activity involved in teaching or coaching." The plaintiff failed to meet that burden.

     The "takedown maneuvers here," an intermediate California appeals court found in upholding this result, "bear similar risks of injury inherent in many sports." The maneuvers are inherently dangerous, as they involve one person intentionally throwing another to the ground. Careless conduct by others is an "inherent risk" in performing these maneuvers. The risk of harm from participating in such exercises was "obvious" and the plaintiff suffered injury from that particular risk.

     Imposing a duty to eliminate the risk of injury from the activity in this particular classroom situation, the court found, would "invariably chill vigorous participation" in learning the maneuvers, and would defeat the very purpose of the class. The takedown activity was a required component of the class prescribed by POST, and the class is a legislatively mandated course all persons desiring to become peace officers must take, which includes learning how to take physical control of a subject in an arrest or detention situation.

     The maneuvers, the court found, cannot successfully be learned for passing the POST examination and for eventual use by peace officers without incurring the risk of injury from practicing them. Eliminating the risk of injury would require eliminating the maneuvers from the class. The nature of the activity, therefore, creates the presumption that those agreeing to participate in it assume the risk of injury, and cannot recover damages for mere negligence.

     The plaintiff voluntarily signed up for the class and agreed to participate in the takedown maneuvers. As a result, he could not recover damages for his injuries under these circumstances.

     Saville v. Sierra College, No C047923, 2005 Cal. App. Lexis 1660 (Cal. App.).

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

     Editor's Note: While the plaintiff in the case above was not personally training to be a police officer, the class is primarily designed and intended as police training, and the court's reasoning would appear to establish the legal standard for recovery by police trainees enrolled in the class.

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In a lawsuit concerning the strip-searching of an adult and seven children during a warrant-based search of an apartment for drugs, trial judge's reply to jury's question about municipal liability was not erroneous. Jury's verdict for defendant city upheld on appeal.

     During a drug-related search of an apartment in Fitchburg, Massachusetts, persons present on the scene, including an adult and seven children, claim that police officers unconstitutionally strip-searched them. The children ranged in age from six to fifteen years old, and they all either lived in, or were visiting family members at the apartment.

     A jury trial on the plaintiffs' federal civil rights claims resulted in a verdict in favor of the defendant city and officers. On appeal, the plaintiffs challenged only the verdict in favor of the city, arguing that the trial judge made a reversible error by giving jurors an incorrect answer to a question they asked during their deliberations. A federal appeals court ruled that the trial judge acted within his discretion in giving the jury its supplemental instruction, and upheld the jury's verdict.

     The apartment search was carried out under a warrant authorizing a search for illegal drugs and other contraband, as well as the search of any person present who may have such property in their possession or control. The warrant was based on an affidavit claiming that an adult woman resident was selling drugs out of her apartment. The seven children present were her daughters and nephews, and the adult plaintiff in the lawsuit was her brother, who also lived in the apartment. Each of the five female plaintiffs testified to having been taken into a bedroom individually and told by a female police officer to remove her clothing, including, in most cases, underwear. The adult brother stated that he and his two nephews were searched in the living room, in the presence of two officers.

     The police officers who conducted the search of the apartment denied having strip-searched the plaintiffs, and several of them testified that the Fitchburg Police Department had a policy concerning the execution of search warrants of conducting strip-searches only when there was individualized suspicion of possession of contraband. The police sergeant who wrote the affidavit for the warrant, however, admitted at trial that he had written a report stating that all persons present at the time of the search were strip-searched. He stated that he did not know, as a fact, that strip-searches had occurred, but had made the assumption "since it was a search for drugs," as officers frequently strip-search everyone present when drugs are involved because "they could be hidden anywhere."

     The verdict form presented to the jury by the trial judge contained a question which stated:

Do you find, by a preponderance of the evidence, that at the time of the subject search on September 6, 1996, the City of Fitchburg had a policy or a custom of strip-searching all people present when searches were executed without individualized suspicion in violation of their constitutional rights to be free from unwarranted searches?

     During the jury's deliberations, they sent a message to the judge asking for clarification of this question: "Does this include searches in all types [of] cases, or just cases similar to this drug related search?" The judge told the lawyers that he intended to answer the request by stating that the question "relates to searches conducted pursuant to court-ordered search warrants." The plaintiff's lawyer objected and asked that the court add the words "in drug cases" at the end of his proposed supplemental instruction. The defense attorney did not agree, arguing that this amendment would make the question too narrow and focus too much attention "to one particular issue." The judge gave his reply without the "in drug cases" amendment, and a few minutes later, the jury returned its verdicts for the defendants.

     The plaintiffs claimed that giving the reply without the "in drug cases" limitation was an abuse of discretion and that the jury's inquiry concerning city policy or custom should have been limited to drug-related search warrants, since all evidence presented at trial related solely to drug searches. They also argued that the jury's question indicated that it had found a policy of unconstitutional strip-searches in drug cases.

     The appeals court found, however, that while the search in question in the case was a drug investigation, the plaintiffs themselves during the presentation of their claims against the city, framed the issues in general terms, without specific reference to the drug-related nature of the search warrant. They asked officers, for example, about their general practices and the applicable regulations concerning the execution of search warrants in general, and spoke about regulations for "searches with a warrant."

     The court's approach in its jury instructions was "consistent" with the plaintiffs' prior presentation of their case, the appeals court stated. Even the complaint alleged that the city had a custom of "deliberate indifference to the rights of its citizens by not adequately training its officers on the proper methods for executing a search," and their opposition to a motion by the defendants for summary judgment both repeated that language and stated that "the training manuals, policies, and procedures of the City of Fitchburg offer no guidelines concerning strip searches of children during the execution of search warrants."

     Given this, the appeals court found, the trial judge's "carefully phrased" supplemental instruction "was well within its discretion."

Even if the evidence at trial could have supported limiting the jury's inquiry to a City policy or custom specifically in drug cases, the case was not given to the jurors in that posture, and the district court understandably resisted changing the boundaries of their deliberation at that point in the proceedings.

     In this case, the jurors' question did not indicate any lack of understanding of the legal principles they were being asked to apply, but rather that they sought to clarify the "relevant factual context." Since their confusion was based on the way in which the trial had gone up to then, with the plaintiffs' acquiescence, the appeals court found that it could not fault the trial judge for declining to present a "more expansive response."

     Quiles v. Kilson, No. 05-1026, 2005 U.S. App. Lexis 22741 (1st Cir.).

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

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Assault and Battery: Physical

     Officer's use of force against motorist being arrested for driving under the influence was not excessive, but reasonable to prevent him from fleeing when the motorist was backing away from the officer as he asked him if he was the driver involved in an accident at the scene. Officer grabbed the motorist, throwing him onto the police car, and then handcuffed him. Officer had probable cause to arrest motorist who admitted that he was the driver of a car apparently at fault for a serious accident, and that he had been drinking. Ankele v. Hambrick, No. 03-4225, 136 Fed. Appx. 551 (3rd Cir. 2005).

Defenses: Collateral Estoppel

     Arrestee's excessive force claim arising out of his arrest was not barred by his plea of no contest to a charge of disorderly conduct, since probable cause for the arrest did not necessarily resolve the issue of whether the force used to make the arrest was proper. Defendants were, however, entitled to summary judgment, as the force used was found to be reasonable. Dye v. City of Warren, No. 4:03CV2593, 367 F. Supp. 2d 1175 (N.D. Ohio 2005).

Defenses: Notice of Claim

     An arrestee's filing of a police brutality complaint with the internal affairs division of the county police department was not adequate to satisfy the requirements under the Maryland Local Government Tort Claims Act for notice of a claim before pursuing a civil lawsuit for damages. The fact that an officer allegedly told the arrestee to "take no action" while the internal affairs investigation was pending did not constitute an excuse for failing to file a timely notice of claim. White v. Prince George's County, No. 01293, 877 A.3d 1129 (Md. App. 2005).

Defenses: Statute of Limitations

     In a lawsuit by animal protection volunteers against employees of a government investigating commission who allegedly published defamatory material about them on a government website, the claim was time barred by a one-year New Jersey statute of limitations for defamation claims. The statute of limitations began to run on the date the material was first published on the website, and that time period was not extended by the fact that the website was subsequently updated or modified while continuing to contain the same allegedly defamatory material. Churchill v. State of New Jersey, 876 A.2d 311 (N.J. Super. A.D. 2005).

Disability Discrimination

     State of Maine was not liable for the death of a mentally ill man shot and killed by police as he was attempting to stab an officer with a knife in his residence. The state's alleged inadequate provision of mental health services, if proven, did not have a disparate impact on the decedent, in violation of the American with Disabilities Act (ADA) provisions prohibiting discrimination on the basis of disabilities by public entities, 42 U.S.C. Sec. 12132, as he was not denied any public service available to able members of the public. Buchanan v. Maine, No. CIV.04-26, 366 F. Supp. 2d 169 (D. Me. 2005).

Domestic Violence

     Father of children was not deprived of equal protection of law, nor were his due process rights as a parent violated when police officers and prosecutors failed to find probable cause to arrest his child's biological mother for kidnapping, but prosecuted him for alleged domestic violence. There was no evidence that the defendants were motivated by gender bias. Burrell v. Anderson, No. CIV.04-43, 353 F. Supp. 2d 55 (D. Me. 2005).

     County was not liable to domestic violence arrestee on his claim that his rights were violated by conditioning his release on bail on his attending a domestic violence program which was also utilized as part of the sentence for others convicted for the same offense. The plaintiff failed to show that this was imposed as a condition of his release on bail pursuant to an official county policy or custom. The arrestee, who was a black man who had been dating a white woman, also failed to show that there was a county policy of treating black men who date white women differently than others accused of domestic violence when it came to setting the conditions of their bail. In fact, the court ruled, the county did not make or control the making of bail decisions, which was solely within the powers of the county court. McLaurin v. New Rochelle Police Officers, No. 03-CIV-10037, 368 F. Supp. 289 (S.D.N.Y. 2005).

Dogs

     While city was not entitled to statutory immunity from liability under Minnesota dog-bite statute for injuries arrestee suffered when bitten by police dog, since dog-bite liability statute did apply to a municipality which owned the dog, the officer's decision to release the dog in order to make the arrest was discretionary, entitling the officer and city to official immunity. Hyatt v. Anoka Police Department, No. A03-1707, 700 N.W.2d 502 (Minn. App. 2005).

False Arrest/Imprisonment: No Warrant

     Deputy sheriff was not liable for arresting motorist for intentionally tape recording his conversation with deputy during traffic stop. Florida state statute prohibiting such recording did not have an exception for tape recording a police officer under these circumstances. Migut v. Flynn, No. 04-16459, 131 Fed. Appx. 262 (11th Cir. 2005).

     Officer had probable cause to arrest suspect after receiving a report from the purported victim, a known and credible witness, that the suspect had "stalked" her, and the officer knew that the suspect had a history of similar behavior. Pardue v. Gray, No. 04-2784, 136 Fed. Appx. 529 (3rd Cir. 2005).

     Motorist's plea of guilty to speeding showed that officers had probable cause for his arrest, and the officers did not use excessive force by merely drawing their weapons when the vehicle was stopped at 3:30 a.m. in a secluded and unlit area. Cunningham v. Sisk, No. 03-6640, 136 Fed. Appx. 771 (6th Cir. 2005).

False Arrest/Imprisonment: Warrant

     Arrest warrant under which suspect was arrested was sufficiently specific in its description to provide officers with probable cause for an arrest, despite the fact that it was actually for another person who had stolen the arrestee's identity. Because the warrant identified the arrestee's exact name, date of birth, hair color, eye color, driver's license number, and height, and the weight listed was only five pounds different from the arrestee's actual weight, a reasonable officer could have believed that the suspect was the person named in the arrest warrant. Fulgencio v. City of Los Angeles, No. 03-56501, 131 Fed. Appx. 96 (9th Cir. 2005).

     Police officers were entitled to summary judgment on false arrest claims when the affidavit supporting the arrest warrant did not have any material misstatements or omissions of fact. Legal determination as to whether the facts alleged were sufficient to support an arrest for forgery, tampering with public records and securing the signing of documents by deception were properly left to the judge examining the affidavit, who issued the warrant. Edwards v. Kelly, No. 04-3105, 136 Fed. Appx. 468 (3rd Cir. 2005).

Family Relationships

     Family of man shot and killed by police officer could not pursue a federal civil rights claim for deprivation of their right to familial association in the absence of any evidence that the officers intended to interfere with their relationship with the decedent, and his estate was the only party authorized to pursue a claim under New Mexico's state wrongful death statute. Murphy v. Bitsoih, No. CIV. 02-1185, 320 F. Supp. 2d 1174 (D.N.M. 2004).

Forfeiture Proceedings

     Despite claims by owner of vehicles seized for forfeiture that criminal investigator told him that the release of the vehicles would be conditioned on his agreement to testify falsely against others in a criminal investigation, the owner did not show any deprivation of a due process right. There was no evidence that the investigator had any power over the continuation or dismissal of the forfeiture action or that he actually communicated with those pursuing forfeiture of the vehicles. Wrench Transp. Services, Inc. v. Bradley, No. 04-1772, 136 Fed. Appx. 521 (3rd Cir. 2005).

Freedom of Information

     Names and addresses of reserve deputy sheriffs were public records subject to disclosure under Massachusetts public records law, and the disclosure of the individuals' names and addresses in response to a newspaper request would not be an unwarranted invasion of privacy. Cape Cod Times v. Sheriff of Barnstable County, 823 N.E.2d 375 (Mass. 2005).

Governmental Liability: Policy/Custom

     Arrestee failed to show that any city policy or custom contributed to the alleged use of excessive force against him while in custody. City was entitled, therefore, to summary judgment. Niemyjski v. City of Albuquerque, No. CIV. 03-1377, 379 F. Supp. 2d 1221 (D.N.M. 2005).

Governmental Liability: Supervision

     D.C.'s failure to discipline a police officer for allegedly improperly assaulting and arresting her brother-in-law was not an adequate basis for a federal civil rights claim against the municipality for inadequate supervision. The officer's conduct was investigated, her police powers were suspended during the investigation, and the officer was then provided with counseling about being involved in domestic disputes, which showed that the District was not deliberately indifferent to any existing problem. McRae v. Olive, No. CIV.A 03-00696, 368 F. Supp. 2d 91 (D.D.C. 2005).

Malicious Prosecution

     Man arrested for harassment adequately stated claims for malicious prosecution and false arrest, alleging facts that would show his arrest and prosecution were not supported by probable cause. Sirlin v. Town of New Castle, 790 N.Y.S. 2d 484 (A.D. 2nd Dept. 2005).

Positional Asphyxia

     Parents of mentally ill man who died, allegedly of positional asphyxia, after being taken into custody by police officers, stated a claim for violation of his civil rights by asserting that the officers, who transported him to a hospital, handcuffed and hog-tied, in a face-down position, had noticed his irregular breathing, but failed to adjust his position at that time. Court also finds a possibly viable claim for disability discrimination under the Americans with Disabilities Act, 42 U.S.C. Sec. 12132, based on alleged failure to provide adequate training for officers in handling encounters with mentally ill persons. Arnold v. City of York, No. 4:CV-03-1352, 340 F. Supp. 2d 550 (M.D. Pa. 2004).

Procedural: Discovery

     Plaintiff in a lawsuit claiming that a police officer was responsible for the homicide of a decedent was entitled to a mistrial and an award of attorneys' fees as a sanction for the defendant city's failure to disclose evidence concerning the case in the possession of the lead detective working on the murder investigation. Estate of Wallace v. City of Los Angeles, No. CV 02-2929, 229 F.R.D. 163 (C.D. Cal. 2005).

Public Protection: Crime Victims

     City was not liable for shooting of visitor to city housing project by tenant whose residency there was a violation of the housing authority's rules because he had felony convictions. The city and housing authority were entitled to governmental immunity under Pennsylvania state law, and an exception to such immunity for the management of real estate did not apply, as there was no showing that the shooting resulted from a defect in the property itself. Williams v. Philadelphia Housing Authority, 873 A.2d 81 (Pa. Cmwlth. 2005).

     Woman who was assaulted and raped in her apartment in a federally subsidized public housing project failed to show that housing commission violated her federal civil rights by failing to protect her. Most of the "acts" she claimed were committed by the Defendant commission, including the alleged failure to maintain control over master keys and resident lists, were more in the nature of omissions or failures to act, and there was no showing that the defendant acted with deliberate indifference to a serious risk of harm as required for federal civil rights liability. Federal appeals court upholds this conclusion despite the fact that her assailant allegedly entered her apartment through the use of a master key, and through a door on which the deadbolt lock had been removed as required by a federal government Housing and Urban Development (HUD) directive. Bullard v. Inkster Housing and Re-Development Commission, No. 04-1051, 126 Fed. Appx. 718 (6th Cir. 2005).

Search and Seizure: Home/Business

     While there were factual issues as to whether a homeowner and his children were unlawfully detained and whether protective sweep of premises by deputies while executing eviction order was unlawful, the deputies were not liable for private movers' alleged theft of some of the homeowner's private property while removing it from the premises. There was no evidence that the deputies either saw the alleged misappropriation or that they conspired with the movers to accomplish it. Thomas v. Sheahan, No. 04C4865, 370 F. Supp. 2d 704 (N.D. Ill. 2005).

Search and Seizure: Person

     Police officer on patrol could reasonably believe that a disabled adult's initial "retreat" upon seeing the officer justified an investigatory stop, so that he was entitled to qualified immunity in a federal civil rights lawsuit. Lee v. Hefner, No. 04-5445, 136 Fed. Appx. 807 (6th Cir. 2005).

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     Statistics: Background Checks for Firearm Transfers, 2004  U.S. Department of Justice, Bureau of Justice Statistics.  Describes background checks for firearm transfers conducted in 2004. This annual report provides the number of applications checked by State points of contact, estimates of the number of applications checked by local agencies, the number of applications rejected, the reasons for rejection, and estimates of applications and rejections conducted by each type of approval system. It also provides information about appeals of rejected applications and arrests for falsified applications. The Firearm Inquiry Statistics Program, managed under the National Criminal History Improvement Program, is an ongoing data collection effort focusing on the procedures and statistics related to presale firearms background checks in selected States. Highlights include the following: Total applications for firearm transfers or permits increased 3.2% nationwide, from 7,831,000 in 2003 to 8,084,000 in 2004. In 2004 the rejection rate for applications checked by the FBI (1.4%) was lower than that for checks by State and local agencies (1.8%). A felony conviction or indictment was the most common reason for rejection during 2004 by State or local agencies (50%) and the FBI (38%). 10/05 NCJ 210117 Acrobat file (143K) | ASCII file (40K) | Spreadsheets (zip format 14K)

     Statistics: Statutory Rape Known to Law Enforcement. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. (August 2005). This Bulletin draws on data from the FBI's National Incident-Based Reporting System to provide a comprehensive look at the patterns of and response to statutory rape. Based on an analysis of reports from law enforcement agencies in 21 states for the years 1996 through 2000, this Bulletin characterizes victim and offender attributes and law enforcement's response to incidents of statutory rape. (NCJ 208803) [PDF]

Reference:

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

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