CONTENTS

Qualified immunity for off-duty officer working as a crossing guard who shot and killed motorist did not, by itself, bar a claim against a police chief for alleged inadequate training, but plaintiffs failed to produce sufficient evidence to prove that the training provided was, in fact, inadequate.

     An off-duty police officer was working as a crossing guard for a church on Sunday morning, wearing a distinctive police baseball cap and jacket. As he escorted a woman and her child across the street, a car approached. The driver, it was subsequently learned, was intoxicated, and the officer signaled to him to slow down and stop. While the details of the next few moments were disputed, the officer ended up on the hood of the vehicle, and struck the windshield twice with his service revolver, ordering the driver to stop the car.

     The cursing, intoxicated driving applied the breaks, then the gas, sequentially, attempting to throw the officer off the car. The jerking motion threw the officer to the driver's side of the car, and as he fell, he fired a single fatal shot at the driver, giving no warning before firing.

     The motorist's family brought a federal civil rights lawsuit against the officer, the former chief of police, in both his individual and official capacity, the city, and a number of others, claiming that the defendants violated the motorist's Fourth Amendment right to be free from unreasonable seizures.

     In a separate trial of only the claims against the officer, the jury returned a special verdict, finding that the officer used excessive force, but that his conduct was objectively reasonable in light of clearly established law. The trial court then dismissed claims against the officer on the basis of qualified immunity.

     The police chief and city then moved for summary judgment, contending that the finding of qualified immunity for the officer barred claims for their liability. The trial court denied the motion.

     On appeal, a federal appeals court noted that municipalities--which included the city and the police chief in his official capacity--have no right to interlocutory (immediate) appeal before trial of denials of immunity, so their appeals were dismissed. But it found that it did have jurisdiction to consider the issue of whether the police chief was entitled to qualified immunity in his individual capacity.

     The plaintiffs in the case claimed that the police chief violated the motorist's rights by acting in an objectively unreasonable manner by failing to properly train the officer. To establish federal civil rights liability against a supervisor such as the police chief, the court noted, a plaintiff must show that he failed to supervise or train the officer, that a "causal connection" existed between the failure to supervise or train and the alleged rights violation, and that the failure to supervise or train amounted to deliberate indifference to constitutional rights.

     The appeals court rejected the argument that the fact that the jury found the officer to have acted objectively reasonably foreclosed the issue of whether the police chief adequately trained the officer.

     It held, however, even assuming that lack of training "caused" the motorist's injuries, that the plaintiffs in the case had not provided sufficient evidence of either the chief's failure to train or his deliberate indifference to the motorist's constitutional rights. There was no showing that the officer involved had a known propensity for the improper use of force, and no pattern of similar violations arising from training that was so clearly inadequate as to be "obviously likely to result in a constitutional violation."

     In this case, the evidence showed that the officer was trained extensively by the State of Louisiana, and that his curriculum included additional instruction in the use of force from the State of Louisiana Peace Officer Standards and Training Council. Overall, the court asserted, the officer received "hundreds of hours of professional instruction."

     The plaintiffs also failed to specify how the particular training provided was defective. They claimed that the training failed to train officers for crossing guard duty, specifically, how to perform as a crossing guard without resorting to deadly force, that officers were not trained properly in the legal standard for use of deadly force and the requirement to issue a warning before using it, and that the training program did not teach officers the correct meaning of the term "deadly force." The appeals court rejected each of these arguments.

     The officer's substantial instruction in the use of force and on subjects such as traffic stops, directing traffic, and general roadside conduct, the court found, prepared him for what occurred on the morning in question, and the plaintiffs failed to produce any evidence showing that crossing guard duty requires special skills or the nature of the allegedly necessary but unprovided instruction.

      The appeals court found that the plaintiffs failed to create a fact issue concerning whether the chief offered insufficient or inadequate training on the use of deadly force under the Tennessee v. Garner standard. Their strongest evidence on this was deposition testimony by the current police chief (who replaced the defendant chief) and the department's head of internal affairs that neither of them were able to personally recall the exact legal standard mandated by Tennessee v. Garner. This "testimonial embarrassment" of two supervisors, the court found, did not prove inadequacy in the department's deadly force training.

     The police chief supplied "overwhelming evidence" that his officers, including the officer in question, were adequately trained in the use of deadly force. The department has a comprehensive policy on the use of such force and all officers undisputedly undergo training about the Tennessee v. Garner, 471 U.S. 1 (1985), legal standard for use of deadly force. That training includes the notion that officers should warn before using deadly force "when feasible," as compelled by Tennessee v. Garner. The appeals court further noted, however, that the plaintiff's insistence on a warning was incorrect in the "fast-moving scenario" that the officer confronted.

     There was no evidence of a pattern of unconstitutional conduct on the part of the officer, according to the court. Evidence about past incidents in which he allegedly "brandished and pointed" his weapon toward unarmed African-Americans while making routine traffic stops, if true, appeared to "reflect badly" on his judgment, the court acknowledged, but proved nothing about his actual use of deadly force in the "much different context of this case." If anything, the one past instance in which there was evidence of the officer using deadly force showed that he acted properly. The man he used deadly force against was convicted of assaulting the officer, and the man's civil rights lawsuit resulted in summary judgment for the officer.

     The police chief, in his individual capacity, was therefore entitled to qualified immunity from liability on the plaintiffs' federal civil rights claims, as well as discretionary immunity on equivalent state law claims.

     Roberts v. Shreveport, No. 03-30824, 2005 U.S. App. Lexis 589 (5th Cir. 2005).

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Officer whose attempt to handcuff woman being arrested for trespass in movie theater and assaulting an officer resulted in a broken arm was not entitled to qualified immunity from her excessive force claim.

     A woman was involved in a dispute at a theater after she attempted to accompany her younger children to a G-rated movie and have her eighteen-year-old son accompany several older children to an R-rated movie also playing there. When she was told the older children would not be allowed in the R-rated movie without a parent, she entered that movie with them, despite the fact that her ticket was for the G-rated movie. When she refused security guards' instructions to leave that movie, two police officers were summoned.

      When she refused to obey the officers' instructions that she leave, one of them told her that she was under arrest for trespassing. The officer grabbed her arm to make her leave, and the woman, pushing her foot against the seat in front of her, backed away from the officer. The officer then told her that she was also under arrest for assaulting an officer. The second officer then asked her to accompany them to the lobby, and she did so.

      In the lobby, one officer motioned for the woman to walk towards him. As she did so, the other officer allegedly came up behind her, grabbed her arm, and attempted to "leg sweep" her. She tripped but did not fall, and when she regained her balance, she folded her arms across her chest, and yelled, "Why are you doing this? I did not do anything."

     At this point, one officer grabbed her left arm and the other her right. The officers allegedly threw her up against a wall and knocked her face into a display case. She claimed that she did not attempt to pull away from them and that they did not give her any directives at that time. An officer then handcuffed her right arm behind her back, and the other officer allegedly pushed up against her with his entire body weight, shoving his arm against her back and his leg in between hers. She was pinned against the wall and could not move, with her right arm handcuffed and her left arm straight along her side. An officer then allegedly forcibly bent her left arm behind her, and a "popping sound" was heard, after which her left arm went limp.

      The arrestee was diagnosed with a comminuted fracture of her left elbow, and also had several bruises. She was hospitalized for surgical treatment of the fracture, and later required a second operation, as well as extensive physical therapy. She also claims that she still endures "continual complications" from the injury. She was charged with trespass, resisting arrest, and assault on an officer, pleading guilty to trespass and attempted resisting arrest as part of a plea bargain.

     She sued one of the officers for allegedly excessive use of force during her arrest. The officer sued allegedly attempted to knock her onto the ground by kicking her legs even though she was not a flight risk and was obeying the other officer's orders, shoved her into a display case, and put his entire weight against her body, even though the other officer had her right arm handcuffed and she was not then actively resisting. He allegedly also grabbed her left arm and twisted it behind her with such force that he fractured it in several places.

     Upholding a denial of qualified immunity, a federal appeals court ruled that, if the plaintiff's version of the incident were believed, the officer's "overly aggressive actions" could have violated her Fourth Amendment right to be free from excessive force during an arrest.

      The court also found that it would be clear to an objectively reasonable officer that the amount of force allegedly used was not justified under the circumstances. The crime of trespassing was a "minor offense" which would not justify the amount of force used, and the arrestee posed "no immediate threat" to the safety of the officers or others. She was surrounded by her children, including toddlers, had no weapon, and made no verbal threats against the officers. The appeals court stated that it also had to consider the "size and stature" of the parties involved, noting that each of the officers was at least five-feet-eight-inches tall and weighed between 230 and 250 pounds, while, "by stark contrast," the arrestee was five-feet-five-inches tall and weighed approximately 120 pounds, posing no threat to their safety.

     At the time of the alleged injury, she was not attempting to flee and was cooperating by accompanying the officers out into the lobby and walking towards one officer as he requested. The mere fact that she crossed her arms after one officer tried to "leg sweep" her did not create a presumption of actively resisting arrest that would justify the subsequent actions.

     A strong dissent by one judge argued that, "at worst," the officer made an "objectively reasonable mistake" as to the amount of force necessary to handcuff the arrestee, entitling him to qualified immunity. The crux of the plaintiff's claim, the judge stated, was the handcuffing that resulted in her broken arm, but it is "well established that the handcuffing of a suspect incident to a lawful arrest is constitutional."

     Further, the arrestee pled guilty to some of the charges. The decision to handcuff her, "while perhaps not the most advisable course under the circumstances," was "certainly constitutional and did not, without more, amount to excessive force." The dissenting judge argued that it was "uncontested" that the officer was faced with the arrestee's unwillingness to submit to his constitutional decision to handcuff her, entitling him to use reasonable force to compel the handcuffing.

In the instant case the objective facts are that an officer with a heavy build was legally trying to handcuff a person of slighter build who was physically trying not to be handcuffed. The precise amount of force needed to accomplish this without injury in the circumstances of this case is so obviously a difficult determination that the mere fact that injury occurred does not amount to evidence of unreasonable force.

     Solomon v. Auburn Hills Police Dept., No. 03-1707 2004 U.S. App. Lexis 23786 (6th Cir. 2004).

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Arrestee's conviction for resisting an officer did not bar him from pursuing a federal civil rights lawsuit for alleged excessive use of force against him. Ninth Circuit federal appeals court, overturning prior ruling, adopts Model Penal Code definition of "deadly force," but leaves it to trial court to decide whether the use of a police dog against the arrestee was deadly force in this case.

      The full U.S. Court of Appeals for the Ninth Circuit granted en banc review of an appeal to clarify the law regarding whether, under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994), a federal civil rights claims for excessive force is necessarily barred by a plaintiff's conviction for willfully resisting, delaying, or obstructing a peace officer in the performance of his duties. In Heck, the Supreme Court ruled that a federal civil rights claim may not be pursued, unless an underlying conviction has been set aside, if a finding of liability would necessarily imply the invalidity of the conviction. The court also addressed the issue of the definition of deadly force.

      Overturning the trial court's grant of summary judgment to the defendants in a case alleging that excessive force was used against an arrestee, the appeals court found that such a civil rights lawsuit is not barred by Heck "because the excessive force may have been employed against him subsequent to the time he engaged in the conduct that constituted the basis for his conviction." Accordingly, a finding of liability on the excessive force claim would neither demonstrate nor necessarily imply the invalidity of his conviction.

     In this case, the arrestee engaged in at least three or four acts which resisted or obstructed the officers before the officers used force against him, the court found, and these were sufficient to support his criminal conviction. The issue of whether the officers, when they commenced their use of force, acted excessively, was therefore not barred by the conviction. While the arrestee arguably subsequently violated the statute during the course of the officers' efforts to arrest him, this was after he was sprayed with pepper spray and immediately prior to attacks on him by a police dog.

      The arrestee's plea of guilty to the criminal charges, if they were based on his actions during the course of the arrest, would bar the excessive force claims, but if the plea were based on his actions prior to the arrest and use of force, it would not. Since it was not clear from the record which actions were the basis for his conviction on a plea of guilty, his success in his federal civil rights lawsuit would not necessarily imply that his conviction was invalid, so the defendants were not entitled to summary judgment on the basis of Heck v. Humphrey.

     On the issue of the definition of deadly force--which the plaintiff arrestee claimed was used against him, the appeals court held that it means "force that creates a substantial risk of causing death or serious bodily injury," a definition that "finds its origin in the Model Penal Code."

"`Deadly Force' means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force. Model Penal Code §3.11(2)."

     The Ninth Circuit had, in previous litigation, Vera Cruz v. City of Escondido, #95-56782, 139 F.3d 659 (9th Cir. 1998) rejected this definition, concerned that the "or serious bodily injury" portion of the definition would blur the line between deadly force and lesser force.

     In now adopting this definition, and explicitly overturning Vera Cruz, it joined the seven other federal appeals court circuits that have explicitly addressed the issue. See, Gutierrez v. City of San Antonio, No. 97-50082,139 F.3d 441, 446 (5th Cir. 1998) (deadly force "creates a substantial risk of death or serious bodily injury"); Estate of Phillips v. City of Milwaukee, No. 96-2628, 123 F.3d 586, 593 (7th Cir. 1997) (same); In re City of Philadelphia Litigation, 49 F.3d 945, 966 (3rd Cir. 1995) (adopting the Model Penal Code definition); Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987) (same); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (same); Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985) (same); Mattis v. Schnarr, 547 F.2d 1007, 1009 n.2 (8th Cir. 1976) (en banc), vacated as moot sub nom., Ashcroft v. Mattis, 431 U.S. 171, 52 L. Ed. 2d 219, 97 S. Ct. 1739 (1977) (same).

A definition including "a substantial risk of serious bodily injury" is used by police in all fifty states, the District of Columbia, and Puerto Rico, and such use has not resulted in the difficulties we feared. Equally important for this case, it is the definition that California and the Hemet Police Department [the defendant Department] use. Adopting the common definition of deadly force should impose no more of a burden on law enforcement officials than already exists throughout the nation -- a burden that most law enforcement officials have voluntarily chosen to impose upon themselves.

     The police department's use of force policy classified the use of both pepper spray and a police service dog as "intermediate" force, a lesser amount of force than "deadly force." The arrestee claimed that the officers pepper-sprayed him four times, one of which occurred after they had him pinned down, and sicced the police dog on him three times, with the dog's teeth puncturing the skin on various parts of his body, including his neck, arm, shoulder, back, and buttock, and the officers allegedly did not flush the pepper spray out of these wounds following the arrest.

     This force was used, the appeals court majority found, despite the lack of a basis to believe that the arrestee was armed or posed an immediate threat to anyone's safety, and the defendants themselves conceded in their depositions that while the arrestee was initially uncooperative, he did not pose a significant threat of death or serious injury to anyone. Additionally, his alleged underlying offense of domestic abuse, while serious and reprehensible, was not "especially egregious" and did not involve the use of weapons, nor was it ongoing when the officers arrived. Further, the arrestee did not attempt to flee, and his resistance only consisted of refusal to comply with the officers' orders, it did not involve an attack on the officers or their dog, or any threats against them. There was also expert witness testimony that suggested that the officers could and should have used control holds to complete the arrest rather than siccing the police dog on the arrestee once they had him restrained on the ground.

     The appeals court majority, therefore, concluded that there was a basis from which a jury could find that the force used was excessive, barring summary judgment for the defendants. Having adopted the Model Penal Code definition of deadly force, it declined to decide whether the officers used deadly force in the circumstances of the case, leaving to the trial court "the first opportunity to apply the concept to the facts of this case." It further noted that, while in the circumstances of prior cases it had factually found that the use of a police dog did not constitute deadly force, it had never stated that the use of a dog could not, in some circumstances, constitute deadly force.

     A strong dissent by three judges argued that in California a conviction for resisting arrest establishes that the force used to effect the arrest was not excessive, so that the excessive force lawsuit is barred by Heck. They argued that it was unnecessary, therefore, to reach the question of whether the force used to arrest the plaintiff was excessive or whether the use of the dog constituted deadly force.

     Smith v. City of Hemet, No. 03-56445, 2005 U.S. App. Lexis 336 (9th Cir. 2005).

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Deputy acted in an objectively reasonable manner in putting his foot on an arrestee's face when he raised his head as he lay on the ground being handcuffed after disobeying orders to immediately drop his shotgun. The arrestee was "not docile," and subsequently was found to possess another gun on his person.

     Officers responding to reports of gunshots fired toward a home heard a shot from the direction of another home in the area, and then saw a man carrying a shotgun and heard the sound of him ejecting a shell. He did not immediately comply with the officers' order to drop the gun. Subsequently, he placed the shotgun inside the garage door, and then he laid on the ground as the officers instructed him to do. Two of the officers got on top of him and put their knees in his back and began to handcuff him. When he raised his head and asked why he was being arrested, a deputy sheriff placed his foot on the side of the arrestee's face and neck and applied pressure. The arrestee jerked one hand away from the officers attempting to handcuff him, shoved the foot off his face, and cursed at the deputy.

     After he was handcuffed and arrested, a search revealed that he was carrying a .38 handgun. He complained that he was handcuffed too tightly. A few weeks the arrest, he was diagnosed with congestive heart failure.

     A federal trial court granted summary judgment on the basis of qualified for the defendant deputy in the arrestee's excessive force and unlawful arrest lawsuit.

     Upholding this result, a federal appeals court found that there was arguable probable cause for the arrest given the observation of the arrestee ejecting a shell after hearing a shot. The deputy could have believed that the arrestee had fired multiple shots in the direction of his neighbor's house, creating a substantial risk of harm to another person.

     On the excessive force claim, the appeals court stated that except for the fact that at one point the deputy put his foot on the arrestee's face, "this would be an easy case." It also noted, however:

In making an excessive force inquiry, we are not to view the matter as judges from the comfort and safety of our chambers, fearful of nothing more threatening than the occasional paper cut as we read a cold record accounting of what turned out to be the facts. We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make a split-second decision between action and inaction in circumstances where inaction could prove fatal.

      From such a perspective, the court ruled, a reasonable officer could have believed that the force applied was reasonably necessary. Multiple shots had been fired, and the arrestee had initially failed to obey orders to drop the shotgun. While he did subsequently obey orders to lie face down on the pavement, he was "not docile," but instead raised his head and asked why he was being arrested. It was then that the deputy applied his foot. When the arrestee jerked his hand away from the handcuffing attempt and shoved the deputy's foot off his face, the officers subsequently got him handcuffed, but the deputy did not put his foot back on the arrestee's face or otherwise respond to his cursing. At no time did the deputy or any other officer kick or punch the arrestee.

      Further, the arrestee did not "cry out in pain," and other than being "indignant" about having a foot on his face, the arrestee did not say then--"and so far as the record reveals he has not testified since--that it was painful." At the time, for all the officers knew, he had other weapons concealed on his person, and as it turned out, he actually did have another gun. Raising his head to ask why he was being arrested could have been an attempt on his part to distract the deputy and a "prelude to actual resistance."

     Under these circumstances, and the risks of apprehending the suspect, an officer in the deputy's position could reasonably concluded that it was "imperative" to keep the arrestee completely flat and immobile until he was successfully handcuffed. Indeed, the fact that he was then able to wrestle his hand loose and push the deputy's foot away indicated that he had "not been subdued."

     There was no evidence--"as distinguished from bare allegations"--that the foot on the arrestee's face caused him any physical injury, so the force complained of, "while undignified in its placement," was not severe in amount.

      The appeals court also found no evidence that the arrestee was in need of medical care at the time, much less that the deputy was aware of such a needed and refused to obtain care for him. Indeed, the arrestee himself did not request medical care until several days after his release from jail.

     Crosby v. Monroe County, No. 03-13716, 2004 U.S. App. Lexis 26973 (11th Cir. 2004).

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University police officer had probable cause to arrest teacher for interfering with his duties when he attempted to argue that the officer should not handcuff a struggling combative student in a tense situation while eight persons who had allegedly previously attacked the student were still present.

      A teacher at Texas Southern University saw a university police officer attempting to handcuff a student. The student had allegedly just been attacked by eight males in the cafeteria, and was then "out of control" and trying to fight all those that had jumped on him. The teacher told the officer not to handcuff the student and that he was his teacher. The officer allegedly told him to step back or get away and that he would be put under arrest if he failed to comply.

      The teacher claimed to have later seen the officer slam the student into a wall and loudly told the officer not to do so. Several other officers present then tackled the teacher.

       The teacher was arrested for interfering with an officer. He sued, claiming that the arrest violated his civil rights.

      Reversing a denial of summary judgment for the defendant officer, a federal appeals court found that the officer acted in an objectively reasonable manner.

       The circumstances the officer faced was an out-of-control victim/witness/suspect who was occupying his efforts and attention, a nearby group of some eight alleged attackers, an approaching person in relative proximity to the officer, who had previously been told to "step back" and that he would be arrested if he did not--speaking loudly and telling the officer to stop, and a gathering crowd.

     A reasonable officer in this position could have believed that the situation was "tense and dangerous," the court concluded, and that the teacher's actions were serving to "stir up the potentially explosive situation," and that there was a good probability that his actions constituted interference with his duties. The officer was therefore entitled to summary judgment on federal and state false arrest/false imprisonment claims. The trial court did, however, allow the teacher to proceed with a federal excessive force claim, and this was not challenged on appeal in the officer's brief.

     Haggarty v. Texas S. University, No. 03-20411, 2004 U.S. App. Lexis 24091 (5th Cir. 2004).

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Officers who arrested a tenant for burglary when he broke in a home in which the locks had been changed following a rent dispute with his landlord were not entitled to qualified immunity in lawsuit for false arrest.

     Police in Olmsted Falls, Ohio arrested a man for burglary of a home. The arrestee had been living as a tenant at that residence, but had a dispute with his landlord. The landlord had previously called the police department after the tenant left for Florida for a period of time. He told police that the tenant owed him $100 in rent and that the tenant still had keys. The landlord was advised that he could simply change the locks and lock the tenant out, which was incorrect under state law, which required the use of legal process to evict a tenant.

     When the tenant returned, and found a note indicating that the locks had been changed, he broke in for the purpose of retrieving some of his property, including his guns. Officers placed him under arrest, despite his possession of the note, which allegedly made it clear that he was a tenant at the house and had been locked out by the landlord over a rent dispute. The officers found his driver's license, which gave the house as his residence, and one of the officers ran his social security number and a dispatcher responded with the house's address as the arrestee's residence. The officers allegedly refused to look at the landlord's note, which the arrestee claimed made it clear that he was a renter at the home.

     The burglary charges were later dropped after the arrestee entered an agreement to pay the landlord $400 in restitution. He then sued the officers for violation of civil rights and false arrest.

     The officers were granted summary judgment after the trial court ruled that the arrest was supported by probable cause.

     A federal appeals court reversed. It found that there was a genuine dispute of material facts that would permit a reasonable jury to find that the officers lacked probable cause to arrest the plaintiff for burglary. Under the terms of a rental agreement, a tenant is entitled to entry and use of the premises, and cannot be a trespasser, a necessary element of burglary.

     State law expressly forbids "self-help" evictions of tenants by landlords. His tenancy was therefore only ended if he had vacated the apartment of his own accord, abandoning the tenancy. In this case, the evidence showed, viewed in the most favorable light, that the plaintiff had paid most of the rent for that month, and was using the residence at that time to house his personal possessions, clothing and furniture, making him a current tenant with the right to enter and occupy the premises, who could not, therefore, be found liable for either criminal trespass or burglary.

     Given the factual dispute as to what the officers knew about the status of his tenancy, they were not entitled to summary judgment. The court also noted that in a civil context, the U.S. Supreme Court has held that police action to assist a tenant's eviction pursuant to a court order would be objectively reasonable but action solely at the behest of a landlord could violate the Fourth Amendment. Soldal v. Cook County, No. 91-6516, 506 U.S. 56 (1992).

     In this case, a reasonable jury could find that the officers relied solely on the landlord's representations concerning the plaintiff and his status as a "burglar," and ignored substantial exculpatory evidence, including their own prior knowledge of the existence of a dispute between the tenant and landlord, and his valid driver's license giving the house as his address.

     The court also rejected the argument that the forcible entry into the house by itself was sufficient to provide probable cause for the arrest. "A homeowner, who is in control and custody of the house, is entitled to enter his own residence through a broken window without fear of arrest." The forced entry was sufficient to create reasonable suspicion and further investigation, but "the reasonable suspicion which justified their initial actions never matured to probable cause of wrongdoing, which is necessary to support a full-fledged arrest," viewing the evidence in the light most favorable to the plaintiff.

     Based on the information that the officers allegedly had at the time of the arrest, the court held, a reasonable officer would not have concluded that there was probable cause for an arrest, so the officers were not entitled to qualified immunity.

     The appeals court found no basis for claims against the City or police chief, however.

     Radvansky v. Olmsted Falls, No. 03-3798, 2005 U.S. App. Lexis 739 (6th Cir. 2005).

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Police officer who shot and killed victim who was grappling with his assailant and had wrestled the gun away from the suspect was not entitled to qualified immunity. If, as was alleged, victim was not pointing the weapon at the officer, the use of deadly force, which would necessarily endanger both men, was objectively unreasonable.

     A suspect had shot two men in less than two hours one morning. After doing so, he pulled his gun on a third man, but his intended victim wrestled the gun away from him. The two men were still struggling when a police officer arrived shortly after the victim had taken the gun away from his assailant. The officer fired his shotgun, killing the victim and also wounding the suspect.

     The decedent's estate and family sued the officer, asserting federal civil rights claims for excessive force, and state law claims for wrongful death. Federal claims initially asserted against the City of St. Paul, Minnesota, which employed the officer, were subsequently dropped.

      A federal appeals court upheld the denial of qualified immunity for the defendant officer.

      While the officer testified that the victim had pointed the gun in his direction and ignored orders to drop the gun, other witnesses testified that the victim held the gun over his head pointed upward throughout his struggle with the suspect, and never pointed it towards the officer. They also testified that the officer did not issue any orders to put the gun down, and indeed gave no warnings and no commands.

      Additionally, a police dispatch had reported that the gun had "changed hands," although it was disputed whether the officer was in his car to hear this before he exited the vehicle and shot the victim.

     Both the plaintiffs and defendant submitted expert witness reports. The defendant's experts claimed that the officer's actions were objectively reasonable. The plaintiff's experts said that they were not, and that, at the distance of 30 feet, with two men grappling, a trained shooter would have known that the shot would probable hit both men. One of the plaintiffs' experts stated that the officer "elected to shoot both the suspect and his victim, whomever either might be, without any discrimination whatsoever for who was going to be seriously injured and/or killed."

     Assuming, for purposes of the appeal, all disputed issues in the light most favorable to the plaintiffs, the appeals court stated that it had "no hesitancy" in saying that the alleged actions by the officer were objectively unreasonable.

     The plaintiffs' version of the incident was that the officer, in a continuous sequence exited the squad car, aimed his shotgun at the two men wrestling, and fired without warning, within three seconds, while the victim was holding the gun overhead, pointed upward. A trained shooter allegedly would have known that under the circumstances, the shot would hit both men, including the one man that he had to presume was a victim rather than a suspect. Additionally, the plaintiffs alleged that the officer had heard the broadcast of the news that the gun had changed hands. "It would be objectively unreasonable for a police officer to fire a shotgun under such circumstances."

     While no case with similar facts was cited by either party on appeal, the appeals court found that the alleged conduct could still be found to violate clearly established law. The issue was not whether "prior cases present facts substantially similar to the present case but whether prior cases would have put a reasonable officer on notice" that the use of deadly force in these circumstances would violate the victim's right not to be seized by the use of excessive force. The appeals court found that for at least the past twenty years, officers have been on notice that they may not use deadly force unless the suspect poses a significant threat of death or serious physical injury to the officer or others.

     On the facts the appeals court had to assume on appeal, the victim did not pose a significant threat of death or serious physical injury to the officer at the time of the shooting. Further, since the officer either knew or should have known, under these circumstances, that he would hit both men, he could not have fired the shot to protect the victim, nor did he claim that he did so. Further, the facts the appeals court was required to assume "show that a warning was feasible but not given." Finally, the two men were grappling, and were not fleeing, when the shot was fired. The appeals court also denied both the officer and city official immunity on state law claims.

     Since the ultimate outcome of the case "may well depend" on whose testimony was believed, "this is a classic example of a case that should be decided by trial rather than by summary judgment."

     Craighead v. Lee, No. 04-1377, 2005 U.S. App. Lexis 301(8th Cir. 2005).

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Police officers properly shot at motorist whose vehicle lurched towards them, but their continued shots after the vehicle passed them was unreasonable because the threat to their safety had ended. The officers were still, however, entitled to qualified immunity because the issue of continued use of deadly force under such circumstances had not been clearly decided at the time of the incident.

     An officer observed a motorist driving in the Baltimore, Maryland Washington International Airport terminal area, and going 51 miles per hour in a 25 mph zone. He activated his lights and sirens and initiated a pursuit. When the motorist did not stop, another officer, in a second patrol vehicle, joined the pursuit.

     The pursuit, after ten minutes, went through a tunnel and towards a toll plaza. Five uniformed Maryland Transportation Authority (MdTA) police officers emerged from around the concrete island located between two lanes in the toll plaza, and approached the motorist's vehicle from the front and passenger sides with weapons drawn, yelling for him to stop.

     The motorist's vehicle slowed and then accelerated in the general direction of the toll plaza and the officers ahead of him. Although none of the officers were directly in front of the vehicle, they stood only a few feet to the passenger side of the vehicle's projected path. The officers, perceiving the acceleration as the beginning of an attempt to run them over, began firing their weapons. The vehicle reached a top speed of approximately 15 miles per hour, and passed all of the officers, temporarily stopping behind another vehicle blocking its path. The officers "scrambled" toward the motorist and continued to fire, ceasing their fire as he passed through the toll plaza. Seven shots were fired by three officers.

     The motorist sustained five gunshot wounds, including one which entered his neck and proved fatal. His estate filed a federal civil rights lawsuit, also asserting state law claims, arguing that the force used was excessive under the circumstances.

     A federal appeals court has ruled that the defendant officers were entitled to qualified immunity.

     The court found that no reasonable jury could find the officers perception that the motorist posed a threat of serious physical harm to them unreasonable with regard to their initial shots, but that it could conclude that the shots fired after the motorist passed the officers were unconstitutional.

     When the vehicle lurched forward, the officers had to immediately decide whether he was attempting to assault them or whether he intended only to drive by them, leaving them unharmed. Given that he had just lead other officers on a more than ten minute chase, that he was not stopping despite seeing the officers approaching ahead of him with their weapons drawn, and that he was accelerating towards them, as well as the fact that an officer had reported just minutes before that the motorist had attempted to run him off the road, a reasonable officer could conclude that the motorist was attempting to run them over.

     The "critical reality" was that the officers did not have "even a moment to pause and ponder" the issue. At the time the vehicle lurched forward, it could have reached several of the officers in about one second even without further acceleration, so that if they paused "for even an instant," they risked losing their "last chance to defend themselves." They were not required to "gamble with their lives" by refraining from firing.

     The force justified at the beginning of an encounter, however, the court stated, is not justified "even seconds later if the justification for the initial force has been eliminated." In this case, once the vehicle passed the officers, the threat to their safety was eliminated and could not justify their subsequent shots.

     Despite this, the appeals court found the officers entitled to qualified immunity because the unconstitutionality of the use of deadly force in the subsequent shots was not clearly established on November 28, 2000, when the shooting occurred. The court noted that the case involved a tense, rapidly changing situation where the threat justifying the use of deadly force ended only seconds before the shots in question, and that prior caselaw in the U.S. Court of Appeals for the Fourth Circuit had not clearly established that the use of deadly force in such circumstances was unreasonable, but rather had created an uncertainty regarding "whether an officer may legally employ deadly force in response to a threat of serious harm moments after he should have known that the threat had been eliminated."

     A strong dissent by one judge on the three-judge panel argued that "no matter how exasperated an officer becomes, the Constitution does not permit him to shoot a motorist for speeding - unless a reasonable officer in the same position would have had probable cause to believe it necessary" to protect himself or others from "a threat of serious physical harm." The dissenting judge believed that the trial court was correct in denying summary judgment and in finding that there were a number of material factual disputes which had to be resolved before it could be determined whether a reasonable officer would have acted as these officers did or would not have realized that shooting the motorist violated the Constitution.

     Waterman v. Batton, No. 04-1096, 2005 U.S. App. Lexis 10 (4th Cir. 2005).

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Michigan appeals court upholds jury award of $533,087.62 against police officer for asphyxiation death of cocaine-intoxicated man who threatened to kill the officer and his partner. While jury found the decedent to be 50% responsible for his own death, it did not clearly attribute his comparative negligence solely to his drug use, which would have barred liability.

   A Michigan intermediate appeals court upheld a $533,087.62 judgment against a Detroit police officer for the wrongful death of a man who died in police custody. The decedent, while under the influence of cocaine, allegedly engaged in "bizarre" conduct that resulted in his family and a neighbor summoning police for assistance. The officer and his partner attempted to restrain the man, who vigorously resisted and even threatened to kill both officers.

     When the officers managed to get the man on the ground in a prone position, the defendant officer, according to one witness, continued to restrain him by placing his knee in the man's back for ten to fifteen minutes until other officers arrived to assist. The man was then transported to a hospital for treatment, but was found dead in the back of the police vehicle upon arrival.

     The plaintiffs' expert witness stated the opinion that the officer asphyxiated the decedent by applying his weight on the man's back with his knee while in a prone position. Based on statements by witnesses that the man was not moving before he was placed in the police vehicle, the doctor concluded that he had significant brain damage at that point, and that his placement in the vehicle face down was "not conducive" to his condition, and may have prevented him from being able to properly breathe.

     Defense experts, based on other witness statements that the man had been moving and talking in the police vehicle, argued that his death was due to his cocaine consumption, and that the officer did not asphyxiate him.

     On appeal, the officer argued that a Michigan statute, MCL 600.2955a, barred his liability because of the jury's finding that the decedent was 50% at fault for his own death. That statute would prevent any liability if the jury found that the decedent had an impaired ability to function due to use of a controlled substance, and that, as a result of that impaired ability, he was 50% or more the cause of the accident or event that resulted in his injury or death.

     An intermediate Michigan appeals court rejected this argument. While the jury found the decedent 50% responsible for his death, it was not asked and did not decide whether that 50% contributory conduct was the result of his impaired ability.

     The appeals court declined to assume that the jury's finding of 50% contributory fault was based solely on the decedent's cocaine use. Additionally, the officer waived this defense by failing to plead it as an affirmative defense, by failing to raise the issue at trial, and by failing to ask that the jury be given an instruction based on the language of the statute.

     The appeals court also rejected the argument that the trial court improperly allowed testimony from the plaintiffs' forensic pathology expert that the death was the result of positional asphyxia, which he defined as an "interference with the oxygen exchange as a result of position." The expert, who had conducted between 55,000 and 60,000 autopsies over his nearly fifty-year medical career, the court found, was "unquestionably qualified" to offer his opinion concerning the cause of death.

     The officer argued that the opinion was unreliable because it contradicted studies suggesting that hogtying a person in a prone position "cannot result in positional asphyxia." The court rejected this argument, noting that there was no evidence in this case of "hogtying," and that the expert's testimony concerned his conclusion that the officer asphyxiated the decedent by kneeling on his back for an extended period of time. Additionally, the officer's contention was "belied" by his own experts' testimony that persons can die as a result of asphyxiation when their bellows are compressed and they are unable to breath. They simply disagreed that it occurred in this case, and therefore created an issue of fact for the jury to determine.

     Smith v. Detroit, #247154, 2004 Mich. App. Lexis 3500 (Unpub. 2004).

     Editor's Note: The above reported case is an unpublished decision, which is not a binding precedent under Michigan court rules.

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Police officers should not intervene on the side of a creditor during an auto repossession in which the motorist disputed the right to tow the vehicle away. Factual issue as to whether they did not, or merely acted to keep the peace during the dispute barred summary judgment for the officers in motorist's federal civil rights lawsuit.

     A motorist's creditor towed away her car while it was parked in the driveway of her home. She filed a lawsuit asserting a civil rights claim against the creditor, the tow truck service, and the police officers who were present during the incident.

      The trial court granted summary judgment in favor of the officers, based on the conclusion that the officers' conduct did not amount to state action, and that, if it did, they were entitled to qualified immunity.

      A federal appeals court reversed, finding that a number of disputed material facts barred both summary judgment and qualified immunity.

      The motorist had secured a loan with the title to her automobile. When the creditor and the tow truck operator he retained approached the motorist's home to attempt repossession of the vehicle, he informed a police officer parked across the street of his attempt. While he did not have the title with him, he did have a piece of paper with a vehicle identification number matching the vehicle parked there. The motorist subsequently claimed that the vehicle towed was not the vehicle securing the loan, and was owned by her husband rather than herself.

      The motorist and her son argued with the creditor, and the police officer came across the street after calling for back-up. Despite the motorist's contention that the creditor had no right to the auto in question, the officers allegedly did not ask the creditor for further documentation. The motorists and her son allegedly made several attempts to unhook the car from the tow truck. One of the officers allegedly poked the son several times in the chest with sufficient force to knock him backwards.

     While the officers stated that the repossession was a civil matter in which they could not be involved, they allegedly told the motorist and her son to stop their "interference," allow the vehicle to be towed, and to then "take it up in small claims court." The motorist and her son claim that officers told them that if the situation "escalated" that "someone" would be going to jail, and that it could be them.

     Following these statements, they allowed the vehicle to be towed. The police officers later asserted that no one was threatened with force or arrest. One officer stayed until the tow truck drove away, and the other officers left when the situation seemed to be under control.

     The federal appeals court found that the plaintiffs were not required to show that the creditor and officers were "co-conspirators." It was enough to show that the police participated, "jointly or otherwise, to the extent that the alleged unlawful repossession assumed the character of state action."

      The issue ultimately was whether the officers acted to keep the peace or to "aid in the repossession."

      Under the due process clause of the Fourteenth Amendment, the plaintiffs had argued, their constitutional rights were well established, as procedural due process requires notice and a pre-deprivation hearing before property interests are "negatively affected by governmental actors." Additionally, the Fourth Amendment prohibition against unreasonable search and seizure is involved when there is interference with an individual's "possessory interests in his property." The officers should have taken a neutral stand on the issue of the repossession, and not sought to determine the outcome of the dispute at the scene.

      If the officers only acted to keep the peace, they did nothing wrong, but if they took a more active role to aid the repossession, the repossession could "take on the character of state action." Because it was disputed which they did, and whether they in fact repeatedly told the plaintiffs to allow the car to be towed, threatening their arrests if they failed to do so, summary judgment and qualified immunity was improper.

      A dissenting judge on the three-judge panel contended that it was reasonable for the officers to tell the motorist, who was using "loud, argumentative language," that "someone" could go to jail if the situated escalated to a breach of the peace. That judge would have found, on the basis of the evidence, that the officers only acted to keep the peace.

     Marcus v. McCollum, No. 03-6148, 2004 U.S. App. Lexis 27201 (10th Cir. 2004).

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Building inspector was not entitled to qualified immunity for his nonconsensual warrantless entry into business premises not open to the public after business hours, or on claims that he did so in retaliation for the business owners' association with a member of the Village council in violation of their First Amendment rights.

     A couple who were residents of the Village of Angel Fire, New Mexico, own and operate a computer software company, MIMICS, Inc., that provides software to financial institutions nationwide. The company moved into a condominium complex, and the landlord told the couple that the Village's planning and zoning commission had approved the company operating there without any waiver or variance from the residential zoning. The landlord later became a member of the Village council, and was politically opposed by two other council members.

     The village's building inspector entered and inspected the company's premises without permission from either the couple or their landlord. The inspection was allegedly prompted by the observation of building materials outside the building, and the inspector entered through a back door in the late afternoon after business hours without announcing his presence. He failed at first to leave, even when asked to. A few weeks later, he again entered the company's premises unannounced and without permission or a warrant. When questioned, he asserted that "I can come into any business in Angel Fire anytime I want to!"

     The company's premises were not open to the general public, and there were no signs indicating that the property was accessible to anyone but the occupants. Even mail was received elsewhere at the post office, and all customer service was handled by phone, modem, fax machine, or by visiting customer's places of operations.

     The company subsequently submitted to a voluntary inspection, during which the building inspector, mayor, and chairman of the planning and zoning commission were present. Despite allegedly finding no serious code violations during that inspection, the building inspector subsequently wrote a letter claiming that there were nine building code violations. At a subsequent meeting of the commission, the commissioners decided to permit the company to remain on the property for six months.

     The couple filed a federal civil rights lawsuit against the Village, the building inspector, and several other defendants asserting that the searches violated their Fourth Amendment rights, and that their First Amendment rights of free speech and free association were also violated.

      The trial court denied the building inspector's motion for summary judgment on the First Amendment claim on the basis of qualified immunity. It also granted the couple's motion for summary judgment against the Village and building inspector on the Fourth Amendment claims.

     A federal appeals court found that the plaintiff couple had a reasonable expectation of privacy in the premises. Their office was not open to the public.

The circumstances of the particular commercial property dictate the level of an individual's expectation of privacy. As a consequence, a broad invitation to the general public would result in a lesser expectation of privacy compared to the expectation of privacy associated with a commercial property closed to the general public.

     The appeals court rejected the argument that the entries were not a "search." It further found evidence that the entries were "intentional, uninvited, and in furtherance of an inspection." His nonconsensual entries did not take the form of simply stepping into an open door when the plaintiffs were not looking or opening a door after having spoken with them. Instead, he clearly sought entry to examine the interior of the premises without permission or a warrant. The court also found any argument by the inspector that he thought, at the time of the first entry, that the property was "vacant" to be unreasonable. It also rejected his argument that he was merely seeking "consent to investigate" when he entered the second time.

     The appeals court also noted that the very statutes on which the building inspector relied to support his claim that an important government interest in construction safety justified "brief, unauthorized investigative entries" specified that inspections should be attempted during reasonable hours, presumably so that the owners/occupiers will be present and consent can be sought, and states that, in the absence of consent, "the inspector shall proceed to obtain a search warrant." This showed that the state had recognized that it did not have a need for "nonconsensual, warrantless, administrative entries." Additionally, in See v. City of Seattle, No. 66-180, 387 U.S. 541 (1967), the U.S. Supreme Court expressly held that "administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." The appeals court concluded that the building inspector had failed to show that he was entitled to qualified immunity on the Fourth Amendment claims or that he reasonably relied on state statutes or the Village's ordinances in making his entries onto the property.

     The appeals court also rejected the building inspector's argument that he was entitled to qualified immunity on the plaintiffs' First Amendment claims. The plaintiffs asserted that his actions were motivated by retaliation against them for their criticisms of him and their political association with their landlord, a member of the Village council.

     The court did rule that the building inspector was entitled to qualified immunity, however, on the plaintiffs' equal protection claim. While the plaintiffs claimed that they were not provided with equal treatment, they did not claim to be members of any "identifiable group." In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), the U.S. Supreme Court held that an equal protection claim could be brought on behalf of a "class of one, where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." But this principle was not clearly established at the time of the two entries by the building inspector, so he could not be said to have violated the plaintiffs' clearly established equal protection rights.

     Mimics, Inc. v. Village of Angel Fire, No. 03-2214, 2005 U.S. App. Lexis 15 (10th Cir. 2005).

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Officer who swore out affidavit for search warrant for apartment was entitled to qualified immunity when woman's statements that she had observed illegal prescription drug sales there were included. The mere fact that she was intoxicated, and had been involved in a domestic dispute with the resident did not alter the result.

     A man summoned police to his apartment after the mother of two of his children, who did not reside there, refused to leave. She had become belligerent and intoxicated during her birthday party there. Officers who arrived at the scene informed her that she had to leave. She then told one of the officers that the man had large amounts of prescription medication and cash in his bedroom and that he was illegally selling the medication. She also stated that she had taken drugs (Vicodin) given to her by the man sometime during that day, that she had witnessed drug sales there, and that she had been at the apartment for two weeks. No search was conducted at that time, and the officers and the woman left.

     Her statements were used as the basis for an affidavit in support of a search warrant for the apartment. The affidavit did not include the fact that the woman was angry with the resident, nor that she had consumed alcohol while at the apartment. During execution of the search warrant, some prescription drugs and $9,500 in currency were found, but no criminal charges resulted. The officer who swore out the affidavit based it on statements made by the woman and by one of the officers involved in the visit to the apartment.

     The man, on his own behalf, and on behalf of two minor children who lived with him, sued the officers involved in the search, as well as the county and township. The trial court granted summary judgment for all defendants other than the officer who swore out the affidavit, finding that others involved in the search were entitled to rely on the warrant and that there was nothing unconstitutional in the manner in which it was executed. It denied summary judgment as to the officer who swore out the affidavit, however, finding that a reasonable jury could conclude that the woman's credibility was so lacking that it was unreasonable for this officer to rely on the warrant, knowing what he did about the circumstances of her accusations.

      The trial court emphasized that it was not saying that her statements were unnecessarily unreliable simply because she was intoxicated and "agitated," but believed that the circumstances of her statements created a factual issue for a jury as to whether it was reasonable to believe her.

      A federal appeals court reversed. It found that the officer acted in an objectively reasonable manner under the circumstances.

      The affidavit, the court found, was sufficient on its face that an officer could rely on it for a finding of probable cause. It described the probable existence of large quantities of prescription medication and cash in a specific location in the apartment, and the basis for the officer's belief, the disclosure by a witness who claimed to have been present during drug sales, as well as explaining the woman's presence in the apartment and her relationship to the resident. The woman was not an anonymous or paid informant, and her identity was disclosed, and the affidavit included her admission that she had herself been given Vicodin by the resident. The affidavit also included the fact that the officer was the lead investigator in a recent break-in and theft of large quantities of Vicodin and other prescription drugs from a local drug store.

     All of these specific facts presented "ample evidence of probable cause" that drugs and their proceeds would be found in the apartment. "The affidavit (and thus the warrant), on its face, and looking at the totality of the circumstances, contains sufficient indicia of probable cause to allow an officer or a judge to reasonably rely on it."

     There was also no evidence that the officer made any false statements or intended to mislead the court issuing the warrant by omission of facts, nor that any omitted evidence would be critical to whether or not there was probable cause. The plaintiff merely argued that the defendant officer should have engaged in further investigation before seeking a warrant, but "such a claim is not enough," under the circumstances, to undermine probable cause on the basis of what the officer knew at the time he obtained the warrant.

     The defendant officer was therefore entitled to summary judgment on the basis of qualified immunity.

     Hale v. Kart, No. 03-1793, 2005 U.S. App. Lexis 599 (6th Cir. 2005).

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Administrative Liability: Training

     Woman who was injured during police forcible entry into apartment to arrest a man within who was suspected of threatening to kill police officers failed to show that any municipal policy of inadequate training caused her injuries. She herself climbed over the edge of the apartment's balcony, allegedly because she did not know who was breaking down the door, and fell 20 to 25 feet onto an awning, suffering injuries. Padilla v. Township of Cherry Hill, #03-3133, 110 Fed. Appx. 272 (3rd Cir. 2004). [PDF]

Damages: Compensatory

     New Mexico jury's award of $55,000 in damages for deputy sheriff's false arrest and imprisonment of plaintiff was properly reduced to $41,250 based on the jury's finding that the arrestee was 25% negligent and the deputy was 25% negligent in connection with the incident. The jury's finding that the deputy's belief that the plaintiff was resisting or obstructing an officer was "unreasonable" rather than "intentional" was closer to a finding of negligence than intentional misconduct, justifying the application of the doctrine of comparative negligence to reduce the damage award. Garcia v. Gordon, No. 23,938, 98 P.3d 1044 (N.M. App. 2004).

Defenses: Absolute Immunity

     Prosecutors who approved allegedly facially invalid post-indictment search warrant of indictee's property were not entitled to absolute immunity from liability to the extent that the warrant sought to obtain evidence of crimes not charged in the indictment, but were entitled to qualified immunity to the extent the warrant was aimed at obtaining evidence to prosecute the pending charges. District attorney was entitled to qualified immunity, however, on approval of allegedly overbroad search warrant, because it was not so lacking in indications of probable cause as to make a belief in probable cause unreasonable. KRL v. Moore, No. 02-15296, 384 F.3d 1106 (9th Cir. 2004). [PDF]

Defenses: Collateral Estoppel

     Summary judgment in federal court on civil rights claims arising out of officers' traffic stop of motorist barred him, under the doctrine of collateral estoppel from relitigating in North Carolina state court, in the context of state law claims, essential elements of his negligence, false arrest, and assault claims which had been decided against him in the federal proceeding. Defendant police officers and municipality were therefore entitled to summary judgment, since the federal court found that the officers acted reasonably in their stopping and detention of the motorist and in their show of force and pat-down search executed at the time of the stop. Williams v. City of Jacksonville Police Department, No. COA03-1450, 599 S.E.2d 422 (N.C. 2004).

Defenses: Sovereign Immunity

     Under Florida state law, court clerk and county sheriff were entitled to sovereign immunity from liability for damages allegedly arising out of the plaintiff's arrest and incarceration based on clerk's alleged failure to inform the sheriff that a capias for the arrest had been canceled by the court. Lovett v. Forman, No. 4D03-2048, 883 So. 2d 319 (Fla. App. 2004). [PDF]

     Driver of fire truck was not entitled to sovereign immunity under Virginia state law for liability for injuries a motorist suffered when the fire truck struck his vehicle. At the time of the accident, the fire truck was responding to a call concerning an infant locked inside a vehicle, and was driving in a non-emergency manner without his sirens or lights activated, and was therefore required to obey all traffic regulations. Supreme Court of Virginia reverses judgment for the defendant, ordering further proceedings. Spivey v. Collier, No. 032315, 601 S.E.2d 591 (Va. 2004).

Defenses: Statute of Limitations

     A motion to vacate on the basis of bad faith and misconduct a prior settlement and voluntary dismissal of the plaintiff's claim against the Missouri Highway Patrol for the alleged improper seizure and retention of cash found in his vehicle during an arrest for a drug offense had to be brought within a one-year statute of limitations for motions founded in fraud. The plaintiff's three-year delay in bringing the motion was not reasonable, so that the motion was properly denied. Middleton v. McDonald, No. 03-3179, 388 F.3d 614 (8th Cir. 2004). [PDF]

Dogs

     A man who claimed that he was injured by a police dog because police officers were negligent in failing to control the dog and in allowing it to roam without a leash during a search for suspects could not recover damages in a federal civil rights lawsuit. Recovery for such injuries under 42 U.S.C. Sec. 1983 can not be based on merely negligent conduct, and the plaintiff, who was not the suspect sought, did not claim that the officers intended to have the dog attack him. Cochran v. City of Deer Park, Tex., No. 04-20044, 108 Fed. Appx. 129 (5th Cir. 2004). [PDF]

False Arrest/Imprisonment: No Warrant

     Jury's inconsistent verdict, finding an investigating officer liable for false imprisonment and the arresting officer not liable, was against the weight of the evidence and required a new trial, since the investigating officer's only involvement in the case concerned an earlier investigation that did not result in arrest. Jonielunas v. City of Worcester Police Department, No. Civ.A.00-40211, 338 F. Supp. 2d 173 (D. Mass. 2004).

     Detective who arrested suspect for alleged drug trafficking was entitled to qualified immunity from false arrest and malicious prosecution claims when a reasonable officer could have found probable cause for the arrest based on circumstantial evidence, including the presence of drugs and drug paraphernalia, including a drug scale, found in a bedroom believed to be the suspect's. Further, the arrestee was subsequently released, with the charges against him dropped, when exonerating evidence was presented. Devatt v. Lohenitz, No. Civ.A.03-CV-5558, 338 F. Supp. 2d 588 (E.D.Pa. 2004).

     Officer had probable cause to arrest motorist involved in single-car accident in which his vehicle crashed through a traffic sign and fire hydrant, since the circumstances were such that they would not usually occur in the absence of some misconduct. The officer could reasonably conclude that the driver was under the influence of drugs or alcohol, even though it would have been equally reasonable for him to conclude that the accident happened because of some medical problem affecting the motorist. Cuvo v. De Bias, No. Civ.A.03-CV-5799, 339 F. Supp. 2d 650 (E.D.Pa. 2004).

False Arrest/Imprisonment: Warrant

     Police officer who arrested, under warrant, the owner of legally registered firearms and ammunition on suspicion of uttering "threats" was not entitled to qualified immunity. The arrestee's "occasional bellicose" statements in the presence of police were insufficient to support a reasonable belief that there was probable cause to arrest him for any crime. The arrest, however, did not violate the Second Amendment. Court finds that there is no federal civil rights claim based on "a right to own firearms unrelated to the maintenance of a militia." Walczyk v. Rio, No. 3:02CV1536, 339 F. Supp. 2d 385 (D. Conn. 2004).

First Amendment

     Police chief was not entitled to qualified immunity in case where a mass arrest was allegedly made of a group of demonstrators in a park despite the fact that no dispersal order had been given. Even if he was unaware of the absence of a dispersal order, his approval of the arrests was not objectively reasonable in the alleged absence of any investigation by him of the justification for the arrest. Federal trial court states that when a group gathered in a public place contains persons who have not been obstructive or violent, a mass arrest is improper in the absence of a fair warning or notice and the opportunity to comply with an order to disperse. Barham v. Ramsey, No. Civ.A. 02-2283, 338 F. Supp. 2d 48 (D.D.C. 2004).

     Massachusetts state statute regulating speech and protest activities within a "buffer zone" around abortion clinics and health care facilities performing abortions did not violate the First Amendment, as it was a valid time, place, and manner restriction and was content neutral. Police enforced the statute in the same manner as to protesters with differing views on abortion who violated the statute, and only made arrests after giving multiple warnings. McGuire v. Reilly, No. 03-2389, 386 F.3d 45 (1st Cir. 2004).

Forfeiture Proceedings

     Police officer was justified in seizing arrestee's truck and currency under Tennessee forfeiture statute based on motorist's apparent possession of prescription drugs which were not his, which the officer could believe the suspect intended to resell. Pinnix v. Pollock, No. 03-1150, 338 F. Supp. 2d 885 (W.D. Tenn. 2004).

Homeless Persons

     Homeless person had no constitutional due process claim against city and the operator of a homeless shelter for the disposal of his bags of property. He abandoned his property interest in the bags and their contents by failing to retrieve them for almost a month after the stated storage period expired. The court also rejects the plaintiff's argument that he had a constitutionally protected due process property interest in residing in the shelter of his choice. Stone v. Pamoja House, No. 03-9174, 111 Fed. Appx. 624 (2nd Cir. 2004).

Interrogation

     City reaches $2 million settlement in case where a 7-year-old male was arrested and charged with the murder of an 11-year-old girl after making incriminating statements to police following his interrogation by several teams of police officers, conducted without the presence of any parent, guardian, or attorney. The boy was released twenty-six days later, and an adult was then charged with the killing. R.G., Minor v. City of Chicago, No.02L-7637, Circuit Court of Cook County, Illinois, Law Division, reported in Chicago Daily Law Bulletin, p. 23 (December 17, 2004).

Negligence: Vehicle Related

     Genuine issues concerning the speed of an officer's vehicle, visibility, and traffic conditions barred summary judgment for the Michigan State Police in a lawsuit brought by the estate of a motorist who died from injuries suffered in a collision with a state trooper's car as he was responding to a reported breaking and entering in progress. Newton v. Michigan State Police, No. 247482, 688 N.W.2d 94 (Mich. App. 2004).

     Motorist who allegedly was injured when a police officer directed him to move his vehicle off of the shoulder of an expressway was not required to show that there was a special relationship between the officer and himself in order to pursue a claim against the county which employed the officer. The officer's alleged negligent conduct was properly characterized as "misfeasance rather than nonfeasance," so not showing of a special relationship was required, as there would be for imposing liability for failing to act to provide protection to an individual. The court also found that there was a triable issue of fact as to whether the officer was negligent under the circumstances. Lazan v. County of Suffolk, 783 N.Y.S.2d 70 (A.D. 2nd Dept. 2004).

Police Plaintiff: Defamation

     Statements on radio show stating that a police officer had committed crimes and had an extramarital affair were defamatory per se, entitling him to an award of damages without proof of economic or particular loss if he could show their falsity, so that summary judgment for the defendants on these claims was improper. Gordon v. Boyles, No. 02CA2196, 99 P.3d 75 (Colo. App. 2004).

Privacy

     City was not liable for police officer's allegedly wrongful display of nude photographs of a female murder victim to persons not involved in the investigation. There was no showing that any official city policy or failure to adequately train officers caused the disclosure. Donohue v. Hoey, No. 02-1405, 109 Fed. Appx. 340 (10th Cir. 2004).

Pursuits: Law Enforcement

     An arrestee who admittedly fled from officers to avoid arrest for possession of controlled substances, and then was struck and injured by a police car as he crossed in front of it, committed a seriously offense of resisting arrest, which barred him from seeking damages for his injuries under New York state law. Moore v. County of Suffolk, 783 N.Y.S.2d 72 (A.D. 2nd Dept. 2004).

Search and Seizure: Home/Business

     Oklahoma state law enforcement officers and state could not be held liable for search of business under warrant seeking evidence of drug trafficking. Probable cause for the warrant existed when search warrant affidavit stated that law enforcement agent personally purchased a product containing a controlled substance at the business premises. Employee of business who was allegedly misidentified as the business owner in statements to the press by a law enforcement agent could not recover damages for defamation when the statement was made on the basis of state tax records and any misrepresentation was unintentional. Tanique, Inc. v. Oklahoma Bureau of Narcotics, No. 99,091, 99 P.3d 1209 (Okla. Civ. App. Div. 2 2004).

Search and Seizure: Vehicle

     Officer had a proper basis for stopping a vehicle even if motorist was correct in disputing the officer's claim that he had not come to a complete stop, when he did not dispute that he failed to give a turn signal and that he was in violation of a requirement to display temporary vehicle tags. Officer was entitled to summary judgment in motorist's federal civil rights lawsuit, since he did have two undisputedly valid reasons for stopping the vehicle. Carr v. City of Erie, #03-3607, 110 Fed. Appx. 236 (3rd Cir. 2004). [PDF]

     The application of a California statute, prohibiting "unauthorized" emergency vehicles from using emergency light bars, to the law enforcement department of a recognized Indian tribe was discriminatory and preempted by federal law. There was no rational justification for treating tribal emergency vehicles differently than other authorized state, federal or private emergency vehicles. County sheriff's department therefore acted improperly in repeatedly stopping and citing the tribe's police officers for violating the statute whenever they traveled on non-reservation roads to respond to emergency calls from noncontiguous sections of the reservation. Cabazon Band of Mission Indians v. Smith, No. 02-56943, 388 F.3d 691 (9th Cir. 2004). [PDF]

     •Return to the Contents menu.

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

     Policies & Procedures: City of Beaverton, Oregon Police Department General Orders. [PDF, selectable by topic].

     Policies & Procedures: General Orders of Hawaii County Police Department, Hawaii. [.html format]

     Policies & Procedures: Iowa City, Iowa Police Department Police Department General Orders. [PDF, selectable by topic].

     Policies & Procedures: Olympia City, Washington Police Department General Orders Manual. [PDF, click on orders in .PDF table of contents to obtain specific orders]

     Publication: Developing a Police Department Policy-Procedure Manual. 12 pgs. [PDF] International Association of Chiefs of Police (IACP). This best practices guide is designed for executives with fewer than 25 sworn officers, but the information in the guide is applicable to many agencies, regardless of size. Topics include: rules for effective manual development and implementation, organization of the manual, policy development steps, and much more.

     Publication: Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement. An IACP (International Association of Chiefs of Police) position paper highlights concerns about state and local law enforcement agencies enforcing federal immigration law. [PDF]

     Report: IACP In-Car Camera Report: "The Impact of Video Evidence on Modern Policing." 159 pgs. [PDF] The results of a two-year evaluation of the impact of police in-car camera systems on state police and highway patrol agencies. In 2002, the IACP was commissioned by the USDOJ Community Oriented Policing Services (COPS) to examine police in-car camera systems. The study was divided into two phases. Phase I studied the process by which the cameras were selected and acquired; Phase II focused on impact evaluations. The results of these evaluations are contained within this report.

     Statistics: "American Indians and Crime: A BJS Statistical Profile, 1992-2002." Summarizes data on American Indians in the criminal justice system and reports the rates and characteristics of violent crimes experienced by American Indians. This report updates a previous BJS report, American Indians and Crime, published in 1999. The findings include the involvement of alcohol, drugs, and weapons in violence against Indians. The report describes victim-offender relationships, the race of those involved in violence against Indians, and the rate of reporting to police by victims. It discusses the rates of arrest, suspect investigations and charges filed, and incarceration of Indians for violent crimes. Highlights include the following: * From 1976 to 2001 an estimated 3,738 American Indians were murdered. * Among American Indians age 25 to 34, the rate of violent crime victimizations was more than 2½ times the rate for all persons the same age. * Rates of violent victimization for both males and females were higher for American Indians than for all races. 12/04 NCJ 203097 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: "Felony Sentences in State Courts, 2002." Presents statistics for adults who were convicted of a felony and sentenced in State courts. The data were collected through a nationally representative survey of 300 counties in 2002. Within the 12 offense categories reported are the number and characteristics (age, sex, race) of offenders who were sentenced to prison, jail, or probation. Trends from 1994 to 2002 highlight the number and characteristics of adults convicted of felonies and the types and lengths of sentences imposed. This periodic report is published every two years. Highlights include the following: * Drug offenders were 32% of felons convicted in State courts in 2002. * State courts sentenced 41% of convicted felons to a State prison, 28% to a local jail, and 31% to straight probation with no jail or prison time to serve. * Guilty pleas accounted for 95% of felony convictions in State courts in 2002. 12/04 NCJ 206916 Acrobat file (557K) | ASCII file (25K) | Spreadsheets (zip format 28K)

     Terrorism and National Security Issues: National Response Plan, Department of Homeland Security, 426 pgs.(January 6, 2005). Describes how federal agencies will work with state, local, and tribal governments in the event of an emergency--naturally occurring or terrorist imposed. [PDF]

     Vehicles and Traffic Law & Safety: A study by the Insurance Institute for Highway Safety released January 13, 2005 concluded that seat belt laws which permit officers to stop vehicles solely on the basis of the failure of drivers or passengers to buckle up reduced traffic accident death rates by 7% in those states adopting them. Twenty-one states and the District of Columbia now have "primary seat belt" laws allowing stops for failing to use seat belts, while 28 states only permit officers to write tickets for failure to use seat belts if the vehicle is pulled over for some other reason. (New Hampshire has no seat belt law).

     Reference:

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

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