CONTENTS

Federal appeals court upholds qualified immunity for police officer who broke motorist's arm in the process of arresting her for intoxicated driving. While trial judge erroneously submitted the qualified immunity issue to the jury, the motorist failed to object or submit alternative instructions, and the submission was not the kind of "plain error" that threatened the fairness or integrity or public reputation of the judicial process.

     A motorist "readily admitted" to a police officer who had stopped her that she was intoxicated and he attempted to place her under arrest. The apprehension ultimately resulted in a deep laceration in the motorist's forehead and a broken right arm. The motorist claimed that she had been cooperative and immediately put her arms behind her back in preparation for being handcuffed and arrested, and that she did not struggle until after the officer broke her arm--at which point she admitted that she resisted the attempts to handcuff her because she was in extraordinary pain.

     The officer contended, however, that the motorist was uncooperative and swung at him after he handcuffed her right wrist, and that he did not execute the "straight arm bar takedown" that broke her arm until she became confrontational.

     The motorist sued the officer claiming that he used excessive force against her in violation of her civil rights. A jury found that the force used by the officer was excessive, but that his conduct was not objectively unreasonable in light of clearly established law. The trial court therefore entered judgment in favor of the officer on the basis of qualified immunity.

     A federal appeals court stated its belief that the trial court improperly submitted the legal question of qualified immunity to the jury, reasoning that the judge should have decided that issue as a matter of law, but affirmed the result because the plaintiff did not object to the trial judge's submission. It also found that this error was not "sufficiently fundamental to threaten the fairness or integrity or public reputation of the judicial proceeding."

     The motorist was convicted in state court of resisting arrest, but evidence of this was initially excluded in the federal trial court. During cross-examination in the federal civil rights proceeding, however, the motorist volunteered that she resisted arrest after the officer injured her arm, and she then stipulated to the admission of her state court conviction.

     The jury answered "yes" to the question whether the officer reasonably believed that his conduct was objectively reasonable in light of the clearly established legal rules at the time, after answering "yes" to a first interrogatory concerning whether the officer used excessive force.

     While the appeals court acknowledged that the law in the 8th Circuit, where the case arose, was that qualified immunity is a question of law for the judge to determine, it also noted that the issue of qualified immunity is frequently "intertwined with unresolved factual questions." In such cases, as in this one, the trial court can tailor special interrogatories to the jury specific to the facts of the case, which the trial court can rely on to make its own qualified immunity ruling.

On the facts of this case, special interrogatories should have asked (1) whether Ms. Littrell resisted arrest before Officer Franklin forcibly restrained her and (2) whether Officer Franklin knew Ms. Littrell was injured when he continued to handcuff and forcibly place her in the car. Specific findings on these questions of fact would have enabled the district court to address the legal issue of qualified immunity through reference to excessive force standards that are clearly established.

     In this case, however, the trial court relied on a precedent from another federal appeals court, the Fifth Circuit, in submitting the qualified immunity question to the jury. See Sikes v. Gaytan, No. 99-50316, 218 F.3d 491, 493-94 (5th Cir. 2000). Because the plaintiff did not object to either this practice or to the content of the second interrogatory submitted to the jury. She also failed to offer any alternate instructions. In the absence of plain error which threatens the fairness or integrity of the judicial process, a party must raise specific objections to the form or content of jury instructions in order to preserve the issue for appeal, the court ruled.

     The appeals court found that it was not clear from the record that the plaintiff demonstrated that submission of the qualified immunity issue to the jury "actually affected the outcome of the proceedings," and that, regardless of its impact on the outcome, it did not believe that the error was sufficiently fundamental to threaten the fairness or integrity or public reputation of the judicial proceeding.

Submission of the qualified immunity issue to the jury was wholly consistent with the practice of the Fifth Circuit. Although different from our own practice, we do not think the Fifth Circuit's practice is fundamentally unfair or in any way threatens the integrity of the judicial process. Importantly, the Supreme Court has not censured the Fifth Circuit's practice. This is true even though there exists a split among the circuits as to the proper apportionment of responsibility between juries and judges in this context. Against this backdrop, we do not find that reliance on the practice of the Fifth Circuit resulted in the sort of error that we may properly characterize as plain error.

     The grant of qualified immunity was therefore upheld.

     Littrell v. Franklin, No. 03-2534, 388 F.3d 578 (8th Cir. 2004).

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Officer was entitled to qualified immunity for arresting fifteen-year-old's father for allegedly furnishing him with a controlled substance. Officer's consultation with local prosecutor prior to making the arrest was one factor to be considered in that determination.

     Maine police received information that a fifteen-year-old boy, previously arrested for alleged involvement in a series of snowmobile thefts, had sold drugs to high school students. An informant, fitted with an electronic listening device, drove to the family's home, and purchased four tablets of Roxicodone, a non-time-released version of Oxycontin, from the boy. An officer, listening to the conversation by transmitter, overheard the boy tell the informant that his father had recently returned from a "drug run" to North Carolina and that he could have his father obtain "an eighth of marijuana" for future purchase.

     Based on this information, an officer obtained a warrant to search the home for scheduled drugs, drug paraphernalia, and other items related to furnishing or trafficking in drugs. Officers found two Roxicodone tablets and drug paraphernalia in the son's bedroom. In the home's kitchen, they found a triple-beam scale with marijuana residue, a bottle containing sixty-five Roxicodone tablets, and an empty Roxicodone bottle. The father told the officers that the Roxicodone had been legally prescribed for his back condition, that he never had provided pills to his son or to anyone else (but, rather, had kept them on his person at all times except while sleeping), and that he had called his pharmacist because he was concerned that a few of his pills were missing.

     The officer consulted with an assistant district attorney, who agreed with him that the facts provided probable cause to arrest the father. The officer then made the arrest for aggravated furnishing of a scheduled drug. Charges were later dropped against the father.

     The father filed a federal civil rights lawsuit claiming that the arrest violated his Fourth Amendment rights. A federal appeals court has upheld qualified immunity for the defendant officer.

     The appeals court noted that the officer had reason to believe from the son's comments that the father was likely involved in furnishing marijuana to his son and possibly to others. The discovery of the triple-beam scale in the family kitchen tended both to corroborate the teenager's remarks and to confirm the officer's understanding. The officer also knew that the Roxicodone tablets found during the search had been prescribed for the father and were, "by his own admission," in his nearly exclusive control.

     Additionally, the officer had reason to doubt the father's claim that he was scrupulous in guarding the pills, since the search disclosed two Roxicodone bottles (one empty and one full) in the kitchen and two loose tables in his son's bedroom. The officer's knowledge that the son had obtained and sold four other Roxicodone tablets to the informant also supported probable cause. Under these circumstances, the appeals court ruled, it was objectively reasonable for the officer to infer that the father had furnished those pills to his minor son. While the officer's judgment "may walk a thin line between probable cause and mere suspicion," the court commented, "it cannot be shrugged off as plainly incompetent."

     The appeals court also pointed out that "to cinch matters," the officer took the precaution of reviewing the known facts with the local prosecutor before making the arrest. It "simply cannot be said," on this record, the court concluded, that probable cause was clearly lacking at the time of the arrest, entitling the officer to qualified immunity.

      The appeals court agreed with the plaintiff that a "a wave of the prosecutor's wand cannot magically transform an unreasonable probable cause determination into a reasonable one." But a reviewing court should not "throw out the baby with the bath water," but instead factor the fact of the consultation of the advice obtained into the totality of the circumstances considered in determining whether the officer is entitled to qualified immunity.

It stands to reason that if an officer makes a full presentation of the known facts to a competent prosecutor and receives a green light, the officer would have stronger reason to believe that probable cause existed. And as a matter of policy, it makes eminently good sense, when time and circumstances permit, to encourage officers to obtain an informed opinion before charging ahead and making an arrest in uncertain circumstances. Although we acknowledge the possibility of collusion between police and prosecutors, we do not believe that possibility warrants a general rule foreclosing reliance on a prosecutor's advice.

     In this case, the court found, the advice that the officer received from the prosecutor was of the kind that an objectively reasonable officer would be "free to consider reliable." The two reviewed the available evidence "fully and had a frank discussion about it," and there was nothing to suggest that the prosecutor was acting in bad faith.

     Cox v. Hainey, No. 04-1761, 2004 U.S. App. Lexis 24766 (1st Cir. 2004).

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Officer was entitled to qualified immunity for police dog's biting of woman who insisted on remaining in the middle of a volatile situation when police and the dog entered her house to arrest her son.

     Several police officers arrived at a woman's home in Michigan, seeking to arrest her son for failure to report to his parole officer. During the "ensuing melee," a K-9 dog brought by one of the officers bit the woman. She filed a federal civil rights lawsuit claiming that excessive force was used against her, and the trial court granted the officers summary judgment on the basis of qualified immunity.

     The officers had been told that the parolee, who had been reported as having been seen at his mother's house, was a "runner" and might attempt to evade arrest. Three of the officers went to the door, and the dog stood with one of them, wearing a body harness and leash used for tracking. The woman opened the back interior door and remained behind the locked screen door. She informed her son, who was there, of the officers' presence, and began opening the door, whereupon the three officers entered, along with the dog.

     The officers observed that someone was in the basement, and ordered the individual to show his hands, but to no avail. One of the officers alerted the dog, who was named "Kojak," to begin barking. One of the officers then allegedly pushed the woman in the back, causing her to stumble and move from the second to the first step of the kitchen staircase. She subsequently claimed that this was when the dog attacked her, biting her three times on her leg. One of the officers then promptly restrained the dog by the collar. The woman claimed that one of the officers then grabbed her by the neck, threw her outside and made her lay face down on the cement sidewalk.

     Two of the officers stated that the woman had proceeded to jump on an officer's back in a "hysterical effort" to get at another officer and the dog to "protect her son," and yelled at them not to hurt her son. Following that, the son allegedly yelled at the officers to leave his mother alone. It was following this, that one of the officers pushed the woman, she lost her footing, and she raised herself back up, whereupon the dog bit her in the thigh area.

     A federal appeals court upheld summary judgment for the defendant officers. The court rejected the argument that the plaintiff had been "seized" when one of the officers "knowingly brought a dangerous animal," Kojak, into the narrow entranceway of her home. A seizure within the meaning of the Fourth Amendment, the court noted, requires an "intentional acquisition of physical control," not the mere "accidental effects" of otherwise lawful conduct.

     The appeals court, while not disputing that trained police dogs can appear to be "dangerous, threatening animals," pointed out that no federal appeals court has held that a properly trained police dog is an instrument of deadly force. And there was, in this case, no evidence that the dog Kojak was improperly trained.

     Even accepting the plaintiff's version of events, there was nothing to suggest that that an officer introduced the dog into her home intending to seize her or that one actually seized her "through means intentionally applied." The officer brought the dog into the home because he was unaware of the son's precise whereabouts, and the court found that the circumstances "undoubtedly justified" the dog's presence, since the son was a fugitive who had been on the run for nearly a year. The dog was trained to track, and the officer legitimately believed that the son might attempt to flee, and that the dog's presence could curtail that possibility.

     No officer commanded the dog to bite the plaintiff. The dog perceived a threat when she stumbled one step down the kitchen stairs into the dog's defensive perimeter, and the officer handling the dog quickly restrained and refocused the dog once he began biting the plaintiff. A reasonable jury could only conclude that the dog's actions were a "spontaneous" response to the plaintiff's threatening movement into the dog's defensive perimeter.

     The officer who allegedly pushed the woman, and subsequently placed her under arrest was also found to be entitled to qualified immunity. He was confronted with a "rapidly-evolving, highly-volatile situation," and the plaintiff's insistence on remaining in the middle of that situation posed a risk to herself, to her son, to the officers seeking to arrest her son, and to the other individuals present, and interfered with the officers' efforts to perform their duties.

     Dunigan v. Noble, No. 03-1304, 2004 U.S. App. Lexis 24647 (6th Cir. 2004).

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U.S. Supreme Court: a warrantless arrest is reasonable under the Fourth Amendment so long as the officer, based on the facts known to him, has probable cause to believe a crime has been committed. The crime justifying the arrest need not necessarily be "closely related" to the offense actually cited as the reason for the arrest.

     A Washington State Patrol officer, believing that a motorist had been impersonating a police officer because of his use of flashing headlights, pursued and pulled over his vehicle. While questioning him at the scene, the officer's supervisor discovered that the motorist was taping the conversation and arrested him for violating the state's Privacy Act. This arrest was made despite the motorist's citing of a state appeals court decision allegedly allowing the tape recording of such roadside conversations with police. The motorist was also ticketed for the flashing headlights.

     Both charges were subsequently dismissed. The motorist filed a federal civil rights lawsuit claiming that his arrest violated the Fourth and Fourteenth Amendments. A jury returned a verdict for the defendant officers after being instructed that the plaintiff had to establish lack of probable cause to arrest, and that taping police at a traffic stop was not a crime in the state. The U.S. Court of Appeals for the Ninth Circuit reversed, Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003) [PDF], ruling that the officers could not have had probable cause to arrest, and rejecting the argument that the arrest was still supported by probable cause because the officers had grounds to arrest the motorist for impersonating an officer, and obstructing an officer. The appeals court reasoned that those offenses were not "closely related" to the charge the motorist was actually arrested for--recording the conversation, and therefore could not be used as a basis to justify the arrest. It denied the argument that the officers were entitled to qualified immunity, for this reason.

     A unanimous 8-Justice U.S. Supreme Court (with Justice Rehnquist not participating in the decision), ruled a warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed.

     The Supreme Court rejected the appeals court's additional limitation--that the offense establishing probable cause must be "closely related" to, and based on the same conduct as, the offense the arresting officer identifies at the time of arrest. This, the Court commented, was inconsistent with prior precedent holding that an arresting officer's state of mind (except for facts that he knows) is irrelevant to probable cause, citing Whren v. United States, No. 95-5841, 517 U. S. 806 (1996)

     The Court further reasoned that the "closely related offense" rule would also result in "perverse" consequences, not eliminating sham arrests, but encouraging officers to cease providing reasons for arrest, or to cite "every class" of offense for which probable cause could conceivably exist.

     The arrestee also claimed that the officers lacked probable cause to arrest him for obstructing an officer or for impersonating an officer. Because the appeals court below held that those offenses were legally irrelevant under the circumstances, it did not decide that question. The U.S. Supreme Court stated that it declined to engage "in this inquiry for the first time here," and therefore reversed the judgment of the Ninth Circuit and ordered further proceedings on that question.

     Devenpeck v. Alford, No. 03-710, 2004 U.S. Lexis 8272.

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Officer had probable cause to remove motorist from his vehicle when he refused a lawful order to produce his driver's license, and did not use excessive force in doing so when he could reasonably believe that he was attempting to evade arrest and posed a possible danger to pedestrians and others in the area.

     A man attending a country music concert in Wisconsin became involved in an altercation with a county police captain as he attempted to exit the parking lot following the event. He sued the captain and the county, claiming that he was illegally seized and that the captain used excessive force in removing him from his vehicle.

     A federal appeals court found that the officer had probable cause for the stop and that the force used was not excessive.

     The officer was assisting in the directing of traffic leaving the event. The officer noticed the plaintiff's SUV turning into the path of a compact car, and asked the driver which way he was going. The driver allegedly replied that he was going south, and that "you don't have to pound on my hood, you ass." The officer then told the driver that he had not touched his vehicle to make him angry, and the driver again allegedly called him an "ass" and stated that he should not have touched his vehicle at all.

     The officer believed, because of the driver's "irrationally angry behavior," that he might be under the influence of drugs or alcohol and asked for his driver's license in order to determine whether his motor skills were impaired and whether he could detect any smell of alcohol. The driver allegedly yelled, "who are you to ask for my driver's license," and refused to give it to the officer. The vehicle was then in motion and the officer decided that it was a threat to other cars and pedestrians, ordering the driver to stop.

     When he did not do so, he reached into the vehicle and attempted to put it in park. When this did not work, he opened the door, grabbed the motorists left arm, and again tried to stop the vehicle. The motorist subsequently admitted at his deposition that he was attempting to drive away from the officer, while in an earlier affidavit, he said that the vehicle was moving only because his foot had slipped off the brake during the scuffle. It was uncontested that the vehicle was in motion.

     The motorist claimed that he then voluntarily exited his vehicle and was cooperative, but that the officer retained his hold on his arm, and jerked his wrist upward until his wrist was touching his neck, causing injury to his rotator cuff. The officer claimed that the motorist continued to swear and complain about his vehicle being touched. He was told that he would be receiving a citation in the mail for failure to obey an officer's signal.

     The federal appeals court found that, even taking the facts in the case in the light most favorable to the motorist, the alleged conduct by the officer did not amount to a constitutional violation. While probable cause is needed for a formal arrest, an investigative stop only requires that the officer is able to "produce articulable facts giving rise to a reasonable suspicion that a defendant has been, is, or is about to be engaged in criminal activity."

     The motorist was seized when the officer grabbed his arm and attempted to physically remove him from the vehicle. But this seizure was based on probable cause and was not unconstitutional. The officer had an objectively reasonable belief that the motorist had violated a Wisconsin law making it a misdemeanor to knowingly resist or obstruct an officer performing his duty by disobeying the lawful order to produce his driver's license.

     The appeals court also found that the officer did not use excessive force under the circumstances. The motorist was "combative and irrationally angry," and the fact that his vehicle was in motion as he argued with the officer could lead a reasonable officer to believe that he was attempting to evade arrest and was posing a danger to pedestrians and stopped traffic in the area. A police officer's ability to make a stop or an arrest, the court commented, "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."

     Lawrence v. Kenosha County, No. 04-1472, 2004 U.S. App. Lexis 24830 (7th Cir. 2004).

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Prior dismissal of a lawsuit under the Federal Tort Claims Act for the alleged intentional destruction of computer equipment and data seized during the execution of a search warrant did not bar a subsequent civil rights lawsuit against the federal agents involved in the search.

     Federal agents executed a search warrant on premises which were the corporate headquarters of a company, as well as the personal residence of the president and sole stockholder of the company and his wife. The warrant authorized seizure of "all property, contraband, instrumentalities, fruits[,] or evidence" of violation of statutes prohibiting child pornography or sexual exploitation of minors.

     The agents seized all computer equipment, software data, and hard disk drives located on the premises, which included all of the company's business records, client files and business, and technological trade secrets. Apparently, the company president was the victim of identity theft, and no evidence of any violation of the cited statutes was found in the materials seized, nor were any charges filed against him or his wife. The items seized, or what was left of them, were subsequently returned.

     Four of the nine computers returned were allegedly totally unusable. This loss resulted in the termination of the company's business operations. Data on five of the hard disk drives seized were so damaged that all stored data was lost, and this included documents, records, accounts, files, and trade secrets.

     The residents filed a federal civil rights lawsuit against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346, claiming that the agents "intentionally caused" total and permanent damage to the computer equipment, resulting in the end of their business operations. The lawsuit was dismissed for lack of subject matter jurisdiction, because of an exception in the FTCA for "Any claim arising in respect of ... the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer ...."

     The plaintiffs then filed a second lawsuit asserting a claim against the agents for violation of their constitutional rights under the Fifth Amendment, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). They sought damages in excess of $4.4 million. The defendants moved for judgment on the pleadings, based on the rule found at 28 U.S.C. § 2676, which provides that "the judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim." The trial court rejected this argument, finding that the plaintiff's "procedural error" in proceeding under the FTCA did not preclude their pursuit of their substantive rights under Bivens.

     A federal appeals court agreed. It found that the rule contained in Sec. 2676 of the FTCA was intended to prevent dual recovery from both the government and its employees, and to avoid the waste of government resources in defending repetitive lawsuits.

     The appeals court also reasoned that an action brought under the FTCA and dismissed for lack of subject matter jurisdiction because it falls within an exception to the restricted waiver of sovereign immunity provided by the statute does not result in a "judgment in an action brought under section 1346(b) [the Federal Tort Claims Act]" as specified in 28 U.S.C. Sec. 2676, since the action was not "properly brought under the FTCA in the first place and is a nullity."

     The plaintiffs could therefore proceed with their federal civil rights claims against the agents.

     Hallock v. Bonner, No. 03-6221, 387 F.3d 147 (2nd Cir. 2004).

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Officer who shot fleeing felon motorist in the back was entitled to qualified immunity, U.S. Supreme Court holds, when prior caselaw did not clearly establish that her conduct violated his Fourth Amendment rights.

     An officer learned that a man was wanted on a felony no-bail warrant for drugs and other offenses, and heard a report of a "ruckus" at his mother's house. The suspect attempted to flee in a vehicle, getting into a Jeep and trying to start it. The officer ran to the Jeep with her handgun drawn and ordered him to stop. As the suspect fumbled with his keys, she hit the driver's side window several times with her handgun and, on the third or fourth try, broke the window. She had mace and a baton, but allegedly did not use them, instead trying to grab the car keys.

     Just after she broke the window, the suspect succeeded in starting the Jeep. Either before he pulled away, or just after he started to do so (the evidence being conflicting), the officer shot him in the back. Because he did not stop, the officer believed she had missed him, but she did not take a second shot, believing the risk to be too great as he began to drive away and others being in the potential line of fire. The driver subsequently pulled over and passed out.

     A federal appeals court ruled that the officer who shot the suspect did not act reasonably if there was no evidence that he posed a threat of serious harm to others or was armed with a weapon, overturning a grant of qualified immunity to the officer by the trial court. Haugen v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003). [PDF]

      The U.S. Supreme Court disagreed, and ruled that the officer was, indeed, entitled to qualified immunity.

Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.

     The Supreme Court noted that the parties had pointed to only a "handful of cases" relevant to the issue of whether shooting a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight was reasonable.

     In two of the cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others, including on the basis of the possibility that a speeding vehicle being used to flee could endanger others or that the suspect had proven that they would do almost anything to avoid capture. In a third case, the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect, ruling that the threat created by the fleeing suspect's failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force.

      The Court found that these three cases taken together "undoubtedly show that this area is one in which the result depends very much on the facts of each case," and that none of them "squarely governs the case here," while suggesting that the officer's actions fell in the "hazy border" between excessive and acceptable force.

     Since it was not "clearly established" that the officer's conduct violated the Fourth Amendment, she was entitled to qualified immunity.

     Brosseau v. Haugen, No. 03-1261, 2004 U.S. Lexis 8275.

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"Critic" of city officials did not show that an investigation of him, and his subsequent arrest and prosecution for alleged involvement in constitutionally unprotected flyers, accusing city officials of "drug abuse, adultery, or pedophilia" were in unconstitutional retaliation for his prior circulation of First Amendment-protected flyers accusing the mayor and others of official misconduct.

     A vocal critic of public officials in the city of Richmond, Kentucky expressed some of his criticisms in flyers that he distributed that stated, among other things, that the mayor and other officials had engaged in official misconduct, which city officials conceded were protected speech under the First Amendment. No criminal charges were ever filed with respect to these flyers. Subsequently, a second series of flyers appeared across the city, and this time accused city officials of "private immorality, such as drug abuse, adultery, or pedophilia."

      The "critic" and two of his associates were indicted on charges stemming from their alleged involvement in distributing these latter flyers, which were found not to be constitutionally protected. While the two associates were found guilty, the "critic" was ultimately acquitted. He subsequently sued the city, the mayor, the police chief, and various police officers, charging that he had been subjected to unconstitutional harassment and retaliation by them on the basis of his distribution of the constitutionally-protected flyers concerning official misconduct and corruption.

     While these claims were "quite vague and generalized," the complained of conduct included the conducting of "poster patrols" searching for individuals putting up posters, in which he was named as a suspect, patrols throughout the subdivision in which he lived, interviews an Assistant Police Chief conducted with his college professors in an effort to gain more information about him, one officer's action in "forcibly searching" him and threatening him with arrest as he entered City Hall, and the mayor's mentioning of his name, among others, in listing persons who "we should never have to be insulted or threatened by." Additionally, following his filing of an ethics complaint over what he perceived to be improper conduct by city officials, the city adopted an ordinance requiring a party who files frivolous ethics complaints to pay the attorneys' fees of the accused official. He claimed, and the police chief conceded, that the chief was responsible for all of the police activity about which he complained. He also claimed that the mayor personally ordered or authorized at least some aspects of the police investigation.

     The trial court declined motions to dismiss the complaint, rejecting arguments that the individual defendants were entitled to qualified immunity and that the plaintiff had failed to allege a municipal policy or custom pursuant to which the alleged harassment had been carried out. The defendants appealed.

     The appeals court found that the search of the plaintiff as he entered City Hall was, by his own description, not a constitutional violation. There was no evidence that it was motivated by retaliation for his prior distribution of the constitutionally protected flyers. It was a search for weapons, and the remarks about throwing "your ass in jail" were in response to his question about what would happen if he refused to be searched. The ensuing search lasted only a minute or two, and was merely a pat-down. This did not rise to the level of adverse action capable of "deterring a person of ordinary firmness from continuing to engage in the protected conduct," and persons entering a government building "necessarily encounter" a variety of security measures, including the possibility of being searched. City Hall was on heightened security alert that day because of an incident a few days earlier in which a projectile, thought to be a bullet, had punctured a window in the mayor's office.

     Similarly, the interviews with the plaintiff's college professors were part of a legitimate criminal investigation into the distribution of the illegal flyers, even if the investigative file for the unprotected flyers referred to and contained copies of his protected flyers. "It makes sense that a criminal investigation into the distribution of illegal flyers might include references to other flyers - even if legal - that may have come from the same source."

     The appeals court also found that the police chief's authorization of the poster patrols and the patrols of the plaintiff's subdivision were reasonable, as they were conducted as part of the investigation into the unprotected flyers, not the protected flyers. The plaintiff argued that it was particularly relevant that his subdivision, which police allegedly patrolled, was located outside the city limits, but the appeals court attached "little significance" to this fact in the absence of any evidence that police were not entitled to patrol beyond the city limits.

     Since none of the police actions were found to rise to the level of a constitutional violation, the mayor's alleged authorization of them could not be a basis for liability, and her comment mentioning the plaintiff's name "does not constitute an adverse action that is capable of the requisite chilling effect," merely indicated her views, conveying no threat, and would not have deterred the plaintiff or anyone else from engaging in constitutionally-protected speech.

     Finally, the mayor was entitled to absolute immunity with regard to her role--and vote--in passing the ordinance concerning the filing of frivolous ethics complaints. Absolute immunity extends to local mayors who are acting in official "legislative capacity," and passing an ordinance is an example of an action taken in official legislative capacity.

     While the city would not, ordinarily, be entitled to immediately appeal the denial of dismissal of the claims against it, the appeals court found that the city's appeal was "inextricably intertwined" with the individual defendants' appeal, "because there can be no municipal liability under 42 U.S.C. Sec. 1983 for maintaining a policy of unconstitutionally retaliating against individuals who exercise their First Amendment rights when no such unconstitutional retaliation has actually occurred." Because of the appeals court's finding that the plaintiff suffered no unconstitutional retaliation, his claims against the city must also fail, the court ruled.

     Tucker v. City of Richmond, No. 03-6336, 388 F.3d 216 (6th Cir. 2004).

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Policy which prohibited "animal rights" demonstrator from protesting at a state-owned performance facility outside of a designated "free expression zone" away from the building entrance was unconstitutional on its face, and violated his free speech rights.

     An "animal rights" advocate demonstrated each year at the San Francisco "Cow Palace," a state-owned performance facility located just south of the city, whenever the circus or the rodeo was playing there. The district agricultural association, which governs the facility, adopted a "First Amendment Expression Policy," which prohibited individuals from demonstrating outside the facility, except in designated "free expression zones," none of which were near an entrance to the building.

     The demonstrator filed a federal civil rights lawsuit claiming that this policy violated his First Amendment rights (and similar provisions of the California state Constitution) because the "free expression zones" did not allow demonstrators access to the facility's patrons adequate to allow engaging in conversation or handing out leaflets.

      A federal appeals court has agreed, and reversed the dismissal of the complaint, finding that the policy in question was unconstitutional on its face.

     The policy defined "demonstration" as the individual or group display of signs, picketing, leafleting, collection of signatures or marching, and any group activity involving the communication of expression, either orally or by conduct of views and/or grievances, and which has the effect and intent or propensity to express that view or grievance to others. Excluded from the policy's reach were one-on-one voluntary discussions, with the exception of oral advocacy within 75 feet from any point along the front entrance or in the fire zones, or individuals wearing small buttons less than 3-inches in diameter, or "symbolic" clothing which does not include "pictures or lettering." Demonstrating is only allowed within designated "free expression zones."

     The three such zones created were on the perimeter of what was described as the "preferred parking lot," located directly in front of the main doors of the arena. Two of the zones were 10 by 20 feet, and the third was 16 by 18 feet. The zones were between 200 and 265 feet away from the main entrance. Individuals or groups desiring to demonstrate there are required to register with the management, with registration granted on a first-come, first-served basis.

     On one occasion, the plaintiff was prohibited from demonstrating in the walkway to the entrance of the area, and he claimed that, on the very same day, a radio station representative was allowed to hand out leaflets advertising the radio station directly in front of the arena entrance.

     The appeals court noted that under either the U.S. or California Constitutions, permissible restrictions on expression in a public forum must be "content-neutral, be narrowly tailored to serve an important government interest, and leave open ample alternative channels for the communication of the message."

     The appeals court found that, as the public was generally free to come and go in the parking lots and on the walkways around the Cow Palace, the area was a public forum. There was also no evidence that protest activity was a threat to the facility's financial success or more than "a mere annoyance" to patrons.

"Annoyance and inconvenience, however, are a small price to pay for preservation of our most cherished right." Id. at 1046 We hold that protest activity is not inherently incompatible with the activity to which the parking lots and walkways outside the Cow Palace are dedicated, and that those areas are therefore public fora for purposes of California Liberty of Speech Clause analysis.

     Despite this, the defendant was entitled to enact reasonable time, place, or manner of speech regulations if they are content-neutral, narrowly tailored to serve a significant governmental interest, and they leave open "ample alternative channels" for the communication of information. The appeals court agreed that the association's interest in pedestrian and traffic safety, as well as in preventing traffic congestion, are significant.

     Regulating traffic around an exhibit or performance facility is insufficient, however, to restrict speech outside a public entertainment facility without showing that the proposed communicative activity endangers those interests. The court found that the association failed to meet a burden of proving that demonstrators handing out leaflets and carrying signs on the parking lots and walkways outside the facility would cause the congestion and danger to safety it alleged. The court also noted that evidence showed that, other than during the rodeo and circus, there were only one or two days a year in which even a single demonstrator shows up at the Cow Palace, and "at least one demonstrator" for only three or four days of the rodeo and two or three days of the circus. The court found that the actual experience at the facility "indicating how many protesters have shown up in the past is pertinent to judging the likely impact of allowing communication activity in the future."

     The court found that this record of a mere handful of protesters showing up made the significance of the state interest in the congestion and safety issues questionable. Evidence showing that radio stations have given out buttons or promotional material on the walkway and that programs and concessions are often sold outside the ticket office also brought this into question, since there was no record of harm or safety concerns caused by such activity "in the supposedly congested areas," which disputed the association's claim that a demonstrator handing out leaflets would contribute to such harm.

We do not mean to suggest, of course, that the Association could not prevent demonstrations that do prevent patrons of the Cow Palace from entering or leaving the facility, or that interfere with drivers circling the lot for a parking space. Common sense tells us that demonstrators walking in front of moving cars could present a safety problem, as could demonstrators blocking patrons' paths. But ordinary traffic regulation, including prohibiting demonstrators as well as others from blocking cars or impeding pedestrians, responds to those concerns. The undeniable need for traffic regulations, and for enforcement of those regulations, does not demonstrate that there is a significant state interest in banning the protesters entirely except in a few small zones.

     Even if it were assumed that there was sufficient support for the asserted interest in congestion and traffic safety, however, the court found that the free expression zones policy was not adequately "narrowly tailored" to serve these interests. The court found that excluding communicative activity from a large area "prevents far more speech than is necessary" to achieve the goals of preventing congestion and ensuring pedestrian and driver safety." Common sense and the evidence, the court found, indicated that the entrance to the facility itself was a "bottleneck, prone to extreme congestion," but that area was only 12 feet by 100 feet. There was no evidence that all areas other than the three free expression zones posed a similar risk of congestion and safety hazards.

Other more limited measures, such as prohibiting protesters within a certain distance from the entrance, or limiting the overall number of demonstrators in certain areas closer to the entrance, or requiring that protesters stand a certain distance from each other, are all measures that directly respond to the nature of congestion and traffic safety issues in parking lots, the court commented. The present policy, however, which relegates communication activity to three small, "fairly peripheral areas" was not narrowly tailored to serve the asserted interests.

      The appeals court concluded that the policy on its face unconstitutionally violated free speech rights, so that the trial court erred in granting summary judgment to the association, and also erred in denying the plaintiff's summary judgment motion.

     Kuba v. 1-A Agric. Ass'n, No. 02-16989, 387 F.3d 850 (9th Cir. 2004).

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

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Arrestee did not present viable claims for wrongful arrest or malicious prosecution when grand jury indicted him for alleged sexual molestation of a child, and there was no showing that the defendants misled the grand jury.

      A young girl told a county sheriff's deputy and other investigators that her grandfather and uncle had molested her, and that two non-family members were also involved. The deputy suspected that a local man with was acquainted with the girl's grandfather was one of these men, and the girl subsequently identified him during a photographic lineup as resembling the man in question. Additionally, the deputy believed that several of the man's responses during an interview were suspicious.

     Based on this investigation, county officials decided to prosecute the man and began by seeking a grand jury indictment. The deputy filed an affidavit and testified before the grand jury, which subsequently indicted the man on three counts of aggravated sexual assault of a child. He was subsequently arrested. Before trial, however, the girl recanted her allegations concerning him, and the county dismissed the charges.

     The arrestee sued the deputy and the prosecutor, contending that they failed to conduct an appropriate investigation. He argued that a more thorough investigation would have shown that, due to impotence, he was unable to perform some of the acts that the girl alleged were done to her, that he did not move to Texas until approximately two years after the girl said that the man in question began molesting her. He also claimed that the photographic lineup was flawed and prejudicial because his photo was the only one in the array with physical characteristics similar to the girl's description of the man who allegedly molested her.

      The plaintiff asserted claims for unreasonable arrest, unreasonable detention, and malicious prosecution under the Fourth and Fourteenth Amendments, and asserted claims against the county for alleged failure to properly supervise and train the deputy in conducting a reasonable investigation and in creating and presenting photographic lineups. State law claims for false arrest, false imprisonment, malicious prosecution, and negligent investigation were also asserted.

      The trial judge granted summary judgment for the defendants on all claims. He held that the plaintiff failed to create a genuine issue of fact concerning whether the defendants withheld information from the grand jury, and that the grand jury's finding of probable cause precluded the Fourth Amendment claims regarding the plaintiff's arrest and imprisonment, as well as the malicious prosecution claim. The judge further stated that even if the indictment had not been returned, the arrestee's claims would still fail because he did not show that deputy and prosecutor should be denied qualified immunity for acting unreasonably in determining that probable cause existed.

     The trial judge also found no authority for a constitutional claim for "unreasonable investigation," and that there was no evidence that the county had a policy or custom encouraging the use of unconstitutional photographic lineups. The failure to establish a genuine issue of fact on the constitutional claims, the judge stated, "doomed" his state-law claims, and, in the alternative, the deputy and prosecutor were entitled to official immunity under Texas state law.

     Upholding this result on appeal, a federal appeals court rejected the argument that the trial court erred in refusing the plaintiff's attempt to conduct depositions of the grand jurors. He argued that, since no record existed of the grand jury's proceedings, he needed to depose its members to prove that the deputy and prosecutor withheld information from it, in order to prove his malicious prosecution and civil rights claims.

     Under both federal and state law, grand jury proceedings are generally secret. Grand jury material may, however, be discovered when there is a "particularized need" for the material, such as when the material is needed to avoid a possible injustice in another judicial proceeding and the need for disclosure is greater than the need for continued secrecy. "The secrecy of the grand jury proceedings is not something that is intruded into except in rare circumstances."

     The appeals court found that the plaintiff failed to show such a "particularized need" for compelling the disclosure of grand jury information, much less deposing the grand jury members, as he did not put forward any evidence whatsoever that the deputy or prosecutor withheld information from the grand jury. The deputy had testified under oath that she presented all relevant information in her possession--both incriminating and exculpatory--to the grand jury, and this was confirmed by the prosecutor. Indeed, the court noted, for the most part, the plaintiff had not claimed that the deputy even possessed exculpatory information, but rather that she would have learned of exculpatory details if she had conducted a reasonable investigation.

     Accordingly, the trial judge had no reason to believe that any useful information would have been uncovered if the plaintiff were allowed to depose the grand jurors, so a "fishing expedition" in the grand jury proceedings was not warranted.

     The appeals court found that, on the basis of the grand jury indictment, and the failure to show that anything tainted the grand jury proceeding, the trial court properly granted summary judgment on the plaintiff's federal and state claims arising out of his arrest and prosecution. It also upheld the finding that there is no legal basis for a federal civil rights claim for "unreasonable investigation," and that there was no showing of county policies of inadequate supervision or training.

     Shields v. Twiss, No. 03-51171, 2004 U.S. App. Lexis 22059 (5th Cir. 2004).

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

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Search warrant issued on the basis of an affidavit which did not establish a link between criminal activity and the residence to be searched or even that the address was the residence of the suspect was so lacking in probable cause as to make reliance on it objectively unreasonable.

     A woman was arrested and had her home searched in Kentucky incident to a charge of selling a marijuana cigarette to a teenager. Charges against her were subsequently dropped for insufficient evidence. She sued, claiming that her constitutional rights were violated when police searched her residence and arrested her pursuant to a defective warrant obtained through a faulty affidavit.

     A federal appeals court reversed summary judgment for the defendant police chief and a defendant officer because the search warrant used in the case did not establish any link between the place to be searched and any criminal activity and therefore lacked probable cause.

     A security officer at a local high school had informed the city police department that three of its students had skipped school and smoked marijuana. The boys told police that one of them had purchased the marijuana cigarette at an apartment at a nearby housing project occupied by a woman named Lisa.

     A police officer and the police chief allegedly drove to the housing project with that boy, who pointed out the woman's residence. The officer then prepared an affidavit for the search of the woman's home and one for an arrest warrant. The warrants were issued and were executed by the officer and police chief, who found no drugs, but did find what they termed drug paraphernalia, including rolling papers and plastic baggies. (The arrestee claimed that the baggies were for her son's baseball and basketball cards, and that the rolling papers belonged to her deceased father, who used to smoke homemade tobacco cigarettes.

     The minor later retracted his statement and said he had lied about buying the marijuana from the woman, making up the earlier allegations about her. Two years later, the minor told the plaintiff that he had brought the drugs from a friend who lived in the same housing project as the plaintiff, and that the false statements about the plaintiff were "pushed upon" him during questioning by the police officer.

     The affidavit for the search warrant of the plaintiff's residence stated that the officer had received information from a male juvenile "that Lisa Mills had sole the male juvenile a marijuana cigarette for five dollars," and that the officer conducted "the following independent investigation," that "on the 1st day of March a male juvenile gave a signed written statement to officer Broughton stating that he had purchased a marijuana cigarette for five dollars from Lisa Mills." The unsworn statement of the male juvenile was not attached to the affidavit, and nothing in the affidavit was stated about why the residence was being searched.

     The appeals court noted that the affidavit did not mention that the juvenile was alleged to have purchased the marijuana at the plaintiff's residence. The underlying affidavit "neither connects the searched residence to any illegal activity nor states that a person engaging in illegal activity away from the residence lives at the searched residence." It also did not indicate that the officer or the police chief performed any investigation to determine whether the plaintiff lived at the address.

Although the officers claim that they took Cox [the minor] in a car and he identified 801 North Allison Avenue [the plaintiff's address] as the residence from where he purchased the drugs, there is no indication that this knowledge was passed on to the magistrate. The officers' independent knowledge, without some explanation in the affidavit, is insufficient to allow the magistrate to find probable cause that drugs would be found at 801 North Allison Avenue. Simply put, the affidavit does not provide the required nexus between the place to be searched and Lisa Mills.

     Under these circumstances, the warrant was so lacking in "indicia of probable cause," that it was not objectively reasonable for the defendants to rely upon it. They had presented absolutely no information in the affidavit indicating that the place to be searched was connected to the suspect. The appeals court reinstated the plaintiff's claims and ordered further proceedings.

     Mills v. City of Barbourville, No. 02-6404, 2004 U.S. App. Lexis 23753 (6th Cir. 2004).

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

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Officers did not exceed the scope of a search warrant for evidence of drug crime by seizing photographs, personal papers, jewelry, doorknobs and locks, when the warrant authorized seizure of "any other instruments of the crime."

     Missouri police officers executed a search warrant at a woman's house, where her son and her cousin also lived. The warrant authorized a search for "crack cocaine, marijuana, heroin, weapons, U.S. currency, drug transaction records and any other instruments of the crime." The officers allegedly broke entry doors and locks on interior doors, damaged drywall and furniture, and seized a firearm, doorknobs and locks, photographs, personal papers, and jewelry, and failed to provide the residents with a copy of the search warrant or an itemized receipt for the seized property.

     The three individuals were never charged with any crime, and filed a federal civil rights lawsuit challenging the issuance and execution of the search warrant. A federal appeals court found that the defendants were entitled to qualified immunity because the warrant was supported by probable cause and that the officers had not exceeded the scope of the warrant. It also ruled that the officers' alleged violation of requirements that they provide the plaintiffs with a copy of the search warrant and an itemized receipt for the seized property did not violate clearly established constitutional law, so that they were also entitled to qualified immunity on that claim.

     The appeals court rejected the argument that the officers exceeded the scope of the warrant, as the warrant authorized the seizure of "other instruments" of drug transactions. The officers reasonably could have believed that the items seized were of such an incriminating nature as to constitute evidence of criminal activity. The personal papers could have been drug records, the photographs could have depicted criminal activity, the jewelry could have been the fruits of a drug transaction, and the door locks and doorknobs could have carried fingerprints.

     Dearmon v. Burgess, No. 01-3096, 388 F.3d 609 (8th Cir. 2004).

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

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Assault and Battery: Physical

     Defendant state troopers were not entitled to summary judgment on excessive force claim merely because neither suspect nor his father, also present at the incident, could identify which of the two of them allegedly stomped on the suspect's ankle. The suspect was handcuffed and pinned face down at the time, and both he and his father had been pepper sprayed at the time. If one of the troopers did, in fact, stomp on the suspect's ankle while he was prone on the ground in handcuffs, he was not entitled to qualified immunity. Williams v. Atkins, No. 00 CIV. 8257(SCR), 333 F. Supp. 2d 209 (S.D.N.Y. 2004).

Defamation

     Business owners who claimed that their business reputation and good will in the community were damaged by defamatory statements allegedly made by city's mayor about the physical condition of their business premises could not recover damages for violation of their civil rights. Defamatory statements and the alleged damages, standing alone, were not sufficient to constitute a "state imposed burden" sufficient to support a federal civil rights claim. Sadallah v. City of Utica, No. 03-9055, 383 F.3d 34 (2nd Cir. 2004). [PDF]

Defenses: Bankruptcy

     A couple who asserted, in filing a bankruptcy proceeding, that they had no assets and no "contingent and unliquidated claims" of any nature, could not, after this assertion was accepted as true by the bankruptcy court, subsequently file a federal civil rights lawsuit less than a month later, asserting claims against a town and its police chief for an alleged pattern of "egregious conduct," including harassment, intimidation and threats towards the couple and their family, and an incident in which the wife was allegedly sexually assaulted by another officer employed by the town. Their assertion in the bankruptcy proceeding that they had no unsatisfied claims was inconsistent with their assertion of federal civil rights claims for conduct that pre-dated the bankruptcy. Plaintiffs were therefore "judicially estopped" from their assertion of a contrary position--that they had unsatisfied federal civil rights claims--in a subsequent proceeding. Howell v. Town of Leyden, No. CIV.A 02-30135-MAP, 335 F. Supp. 2d 248 (D. Mass. 2004).

Defenses: Collateral Estoppel

     Estate of man shot and killed by police was barred, by the doctrine of collateral estoppel, from relitigating the issue of whether the force used by the officers was excessive. Federal court had previously found that the officers acted in an objectively reasonable fashion in shooting and killing the man, a motorist, who had rammed his vehicle into an officer's vehicle and then continued to push the officer's vehicle backward. This conclusion in the federal case barred the estate from pursuing state law claims for assault and battery, negligence, and intentional infliction of emotional distress, as liability for such claims would be inconsistent with the resolution of the federal lawsuit. Vanvorous v. Burmeister, No. 248450, 687 N.W.2d 132 (Mich. App. 2004). [PDF]

Defenses: Sovereign Immunity

     Alabama deputy sheriff was entitled to sovereign immunity under state law against liability for injuries suffered by motorist his vehicle collided with while he was working within the "line and scope of his employment," as conceded by the motorist. The motorist claimed that the deputy had negligently or wantonly sped through an intersection without utilizing his blue overhead lights and his audible siren, but under Alabama law, the deputy was entitled to sovereign immunity, now called State immunity, even under these circumstances, so long as he was acting in pursuit of his official duty. Ex parte McWhorter (In re McCarley v. McWhorter), 1021638, 880 So. 2d 1116 (Ala. 2003).

Defenses: Statute of Limitations

     Statute of limitations was tolled (extended) during the time that court ordered mediation of the case was attempted. Plaintiff injured in a traffic accident with a county deputy sheriff could therefore pursue his personal injury claim even though the five-year statute of limitations had passed since the accident. Gonzalez v. County of Los Angeles, No. B168867, 19 Cal. Rptr. 3d 381 (Cal. App. 2nd Dist. 2004). [PDF]

Expungement

     Statute which permitted expungement and destruction of arrest records for misdemeanors but not for felonies did not violate equal protection since the classification was rationally related to legitimate governmental interests. The retention of felony arrest records, the court noted, is useful in uncovering criminal conduct, in setting bond, and in facilitating the work of correctional institutions. State v. Expunged Record No. 249,044, No. 2003-KA-1940, 881 So. 2d 104 (La. 2004). [PDF]

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest a parent for trespass after a school official told them he had asked the parent to leave the school premises and that the request had been ignored, regardless of whether the parent had actually been told to leave. Arum v. Miller, No. 00-CV-7476 (DRH)(ETB), 331 F. Supp. 2d 99 (E.D.N.Y. 2004).

     Officers who failed to provide evidence of what they were told about airline passenger's behavior aboard plane before they removed her and took her to a psychiatric hospital were not entitled to qualified immunity in her federal civil rights lawsuit asserting that they violated her right to be free from an unreasonable seizure, since the court could not determine, in the absence of such evidence, whether the officers acted reasonably at the time in seizing her. Turturro v. Continental Airlines, No. 00 Civ. 0637(PKC), 334 F. Supp. 2d 383 (S.D.N.Y. 2004).

     Officer had probable cause to arrest motorist who was driving vehicle for fleeing or attempting to elude him when she admitted that she had seen police vehicles pursuing her with lights flashing and heard their sirens and then told her husband, who was sought on suspicion of having earlier violated a motorcycle law, that she was just going to "go ahead and drive home" because she was so close to it. Wright v. City of St. Francis, Kansas, No. 02-3337, 95 Fed. Appx. 916 (10th Cir. 2004).

     Plaintiff in federal civil rights lawsuit against police officials could not show that he suffered a "seizure" for Fourth Amendment purposes when he was issued tickets to appear in court on charges for disorderly conduct and stalking. Charges against him were subsequently dropped, and there was no evidence that he was ever actually required to appear in court and answer the charges. Federal appeals court also finds that plaintiff failed to show that officers lacked probable cause to issue him the tickets. Prose v. Wendover, No. 02-1950, 96 Fed. Appx. 358 (6th Cir. 2004).

Firearms Related: Intentional Use

     Officers acted in an objectively reasonable manner in shooting and killing a man encountered in the woods armed with two knives who repeatedly refused to drop them in response to the officers' orders, and whose actions indicated that he was prepared to use the knives against them. Huggins v. Weider, No. 03-2333, 105 Fed. Appx. 503 (4th Cir. 2004). [PDF]

     Jury verdict in favor of police officer and city upheld in case where officer shot and killed a man who approached him with a knife in hand when he responded to a report of a dispute. Where the jury returned a general verdict in favor of the defendants, and was not polled by special interrogatories, the appeals court could not determine the basis on which the jury found for the defendants and had to presume that the jury "found every issue in favor of the defendants." The plaintiff therefore failed to provide a record on which reversible error could be found. Morales v. Moore, No. 24286, 855 A.2d 1041 (Conn. App. 2004). [PDF]

First Amendment

     Police department's use of officers mounted on horses to control crowd of demonstrators protesting an appearance by President Bush to the city was not unreasonable. The use of mounted officers, by itself, did not prevent demonstrators from exercising their First Amendment right to free speech and assembly. Plaintiffs were not entitled to an injunction against future use of mounted officers in similar circumstances in the absence of evidence that protester's future speech would be prevented on the basis of its viewpoint or content. Democracy Coalition v. City of Austin, No. 03-03-00235-CV, 141 S.W.3d 282 (Tex. App. 2004).

Negligence: Vehicle Related

     Officer was entitled to official immunity under Texas law from liability for injuries suffered by motorist whose vehicle struck officer's car as the officer drove around other cars stopped at an intersection during his response to a domestic violence call. The officer was acting in good faith and within the scope of his duties. His actions were reasonable in light of a report that the suspect was threatening his wife or girlfriend and was going to shoot her. Johnson v. Campbell, No. 06-04-00016-CV, 142 S.W.2d 592 (Tex. App. 2004).

Procedural: Jury Selection and Jury Trial Right

     Under Louisiana state law, there is no right to a jury trial in any lawsuit for injury to person or property against the state, a state agency, officer, or employee, or a political subdivision of the state or its employees acting in the discharge of his officials duties or within the course and scope of his employment. A jury trial was therefore not available on claims by the parents of a son shot and killed by an off-duty police officer, based on a determination that the officer acted in the course and scope of his employment or in discharging his official duties. Robertson v. Hessler, No. 2003-C-1060, 881 So.2d 116 (La. App. 2004).

Property

     Arrestees' claim that city had a policy of issuing incomplete, false, and misleading receipts for property taken for inventory purposes from them, and that this was intended to prevent or delay the return of non-forfeitable property could be pursued in federal court, since the deprivations allegedly did not stem from random and unauthorized acts of city employees. Plaintiffs were not required to first exhaust all state law remedies before pursuing procedural due process claims in court. Their claims, however, could not be pursued under the Fourth Amendment, since a Fourteenth Amendment due process claim provided an adequate avenue to seek redress. The federal court also found that property owners cannot state a claim under the Fifth Amendment for the taking of private property for a public use without just compensation before pursuing available state procedures for seeking compensation. Gates v. Towery, No. 04C2155, 331 F. Supp. 2d 666 (N.D. Ill. 2004).

Public Protection: Crime Victims

     County could not be held liable for death of murder victim allegedly killed by detainee who removed an electronic home monitoring restraint and left home detention before committing the crime. The county and its agencies had no "special duty" to protect the victim from the crime, and an exception to statutory immunity for injury and death that occurs within the grounds of buildings used in performance of public functions did not apply. Kennerly v. Montgomery Cty. Bd. of Commissioners, 814 N.E.2d 1252 (Ohio App. 2d Dist. 2004). [PDF]

Search and Seizure: Home/Business

     Officers were entitled to qualified immunity on claims that they unlawfully seized residents of apartment downstairs from residence of suspect when they surrounded and entered the common areas of a duplex building looking for the suspect. Defendants allegedly pointed their weapons at downstairs residents when they did not obey commands to go back inside or stay in their apartment. It is well established, federal trial court notes, that it is reasonable for an officer to temporarily display force or restrain a person "until that person's relationship to the suspect and possible reaction to the situation can be ascertained." In this case, the officers were attempting to locate and arrest a potentially armed suspect believed to be in the same building as the plaintiffs, so that their conduct did not rise to the level of a Fourth Amendment violation. Reeves v. Churchich, No. 2:02 CV 0551 DAK, 331 F. Supp. 2d 1347 (D. Utah 2004).

     Homeowner could pursue her federal civil rights claim that officers unlawfully entered her home to attempt to execute an arrest warrant for a non-resident suspected of being present there. Federal appeals court finds that there were genuine issues of fact as to whether the officers deliberately entered the home without consent, a search warrant, or exigent circumstances, in violation of the Fourth Amendment. Genuine issues also found concerning whether officers were or were not trained to attempt to get consent before entering into third-party residences to carry out arrests pursuant to arrest warrants. Maddux v. Officer One, No. 01-20881, 90 Fed. Appx. 754 (5th Cir. 2004). [PDF]

     Business owner failed to show that officers alleged violation of his reasonable expectation of privacy in making a warrantless entry into garage on the premises in search of an allegedly stolen vehicle was based on the police department's policy or custom, so that the municipality could not be held liable. Binder v. Redforce Township Police Department, No. 02-2184, 93 Fed. Appx. 701 (6th Cir. 2004).

     Officer was entitled to qualified immunity for his search of a mobile home he was sent to secure when he had been told that minor found dead there may have been a victim of sexual abuse and also that a search warrant for the premises had been signed. Myers v. Medical Center of Delaware, Inc., No. 03-2373, 105 Fed. Appx. 404 (3rd Cir. 2004). [PDF]

Search and Seizure: Search Warrants

     Occupants of a home mistakenly identified in a search warrant and subjected to a no-knock search by members of a Special Weapons and Tactics (SWAT) team presented an arguable issue as to whether the city's policies or lack of policies concerning the issuance of no-knock search warrants caused a violation of their Fourth Amendment rights. Because of the "hyper-intrusive" nature of such searches, the court comments, the government should show more than the standard requirement of probable cause to obtain such a warrant. At the same time, the court rejected the argument that the city was required to demand that the officer in charge of an investigation personally provide visual verification of the address in a search warrant, finding that a policy of allowing such verification by other officers was reasonable. Solis v. City of Columbus, No. 2:02-CV-788, 319 F. Supp. 2d 797 (S.D. Ohio 2004).

Search and Seizure: Vehicle

     It was clearly established prior to August of 1999 that a traffic stop of a vehicle was not permitted without some reasonable and articulable suspicion of criminal activity, so that officers were not entitled to qualified immunity on a claim that they stopped a vehicle merely because it was observed at an "odd hour" driving through a "high crime" area in violation of the Fourth Amendment. Holeman v. City of New London, No. 3:00CV1608 (DJS), 330 F. Supp. 2d 99 (D. Conn. 2004).

Towing

     Vehicle towing company could not recover damages under Illinois state law against city and its mayor for their alleged request to the owner of a private parking lot to cease doing business with them and switch to a local towing company. The alleged action by the mayor was a "discretionary act" for which immunity was available under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq. Kevin's Towing, Inc. v. Thomas, No. 2-03-1118, 814 N.E.2d 1003 (Ill. App. 2nd Dist. 2004).

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

     Article: "Expert Testimony and Risk Assessment in Stalking Cases," by Eugene Rugala, James McNamara, and George Wattendorf, 73 FBI Law Enforcement Bulletin No. 11, pgs. 8-18.(November 2004). [PDF] "The FBI's National Center for the Analysis of Violent Crime represents a valuable resource pertaining to stalking cases." Also available in .html format.

     Article: "Managing Joint Terrorism Task Force Resources," by James Casey, 73 FBI Law Enforcement Bulletin No. 11, pgs. 1-6 (November 2004). [PDF] "Effectively handling joint terrorism task force resources provides an important key for law enforcement agencies to combat terrorism." Also available in .html format.

     Article: "Managing the Problem Employee," by Thomas Q. Weitzel, 73 FBI Law Enforcement Bulletin No. 11, pgs. 25-33 (November 2004). [PDF] "Law enforcement agencies need to know how to recognize and effectively handle problem employees. Also available in .html format.

     Publications: COPS Gangs Toolkit. The COPS Gangs Toolkit, consists of five publications, and provides details of community policing solutions to youth crime and school violence. The topics covered are: Addressing School-Related Crime and Disorder, Bullying in Schools, Disorderly Youth in Public Places, Graffiti, Gun Violence Among Serious Offenders, as well as a Parents Quick Reference Card. Each publication can be downloaded in .PDF format, or ordered from the U.S. Department of Justice Response Center at 800.421.6770.

     Publication: Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies, by Dr. David Carter, Michigan State University. Funded by COPS (Community Oriented Policing Services). "Dr. Carter's guide promises to help law enforcement agencies develop or enhance their intelligence capacity and enable them to be instrumental in fighting terrorism and other crimes while preserving hard-won community policing relationships." Downloadable executive summary and 12 downloadable chapters, as well as appendices. (November 23, 2004). [PDF]

     Publication: Managing a Multijurisdictional Case: Identifying the Lessons Learned from the Sniper Investigation, by Gerard R. Murphy and Chuck Wexler, with Heather J. Davies and Martha Plotkin, an Office of Justice Program, BJA-supported publication, has been released by the Police Executive Research Forum (PERF). The report details a number of "lessons learned" and recommendations on how other police agencies can prepare for high-profile crimes that involve multiple jurisdictions. The report is based on the experiences detailed by more than 100 individuals closest to the DC sniper case, as well as focus groups and extensive information collection efforts. October 2004, 210 pgs. [PDF]

     Publication: Picking Up The Pieces: Your Rights and Responsibilities as a Crime Victim. Jim Petro, Attorney General, State of Ohio. 61 pgs. [PDF]

     Publication: Police Chief's Desk Reference: A Guide for Newly Appointed Police Leaders. International Association of Chiefs of Police New Police Chief Mentoring Project. Includes sections on IACP Resources, Leadership, Ethics, Policy and Procedures, Best Practices Guides, Funding, Accreditation, and other resources. 350 pgs. [PDF]

     Statistics: Crime in the United States 2003. Annual report by the FBI. [PDF]

     Statistics: Hate Crime Statistics 2003. Annual report by the FBI. [PDF]

     Statistics: Homicide Trends in the United States: 2002 Update Outlines the primary findings from the updated section of the BJS website (www.ojp.usdoj.gov/bjs/homicide/homtrnd.htm) about homicide patterns and trends since 1976. Topics covered include long term trends in murder and non-negligent homicide, demographic trends, multiple victims and offenders, infanticide, eldercide, homicides by intimates, law enforcement officers killed, justifiable homicides, weapons trends, clearances, regional trends, and trends by city size. The data analyzed are from the FBI Uniform Crime Reporting Program’s Supplementary Homicide Reports. (November 2004). NCJ 204885 Acrobat file (337K) | ASCII file (34K)

      Statistics: Indicators of School Crime and Safety, 2004 Presents data on crime at school from the perspectives of students, teachers, principals, and the general population. A joint effort by the Bureau of Justice Statistics and National Center for Education Statistics, this annual report examines crime occurring in school as well as on the way to and from school. It provides the most current detailed statistical information to inform the Nation on the nature of crime in schools. Information was gathered from an array of sources including: - National Crime Victimization Survey (1992-2002) - School Crime Supplement to the National Crime Victimization Survey (1995, 1999, and 2001) - Youth Risk Behavior Survey (1993, 1995, 1997, 1999, 2001, and 2003) - School Survey on Crime and Safety (2000) - School and Staffing Survey (1993-94 and 1999-2000). Highlights include the following: Students age 12-18 were victims of about 309,000 serious violent crimes away from school, compared with about 88,000 at school. Between 1993 and 2003, the percentage of students in grades 9-12 who reported being in a fight anywhere declined from 42 percent to 33 percent. In 2003, 5 percent of students ages 12-18 reported being victims of nonfatal crimes, 4 percent reported being victims of theft, and 1 percent reported being victims of violent incidents. (November 2004) NCJ 205290 Press release ASCII file (34K) Acrobat file (906K)

     Statistics: Law Enforcement Officers Killed and Assaulted 2003. Annual report by the FBI. [PDF]

     Statistics: Tort Trials and Verdicts in Large Counties, 2001 Presents findings about tort cases disposed of by jury and bench trial in general jurisdiction courts in the Nation's 75 largest counties during 2001. Information from the Civil Justice Survey of State Courts is analyzed about types of tort cases and litigants, type of trial, plaintiff winners, compensatory and punitive monetary damages awarded to plaintiff winners, and case processing time. Analyses are presented describing trends in tort jury trials. Information on plaintiff and defendant post verdict activity at the trial court and appellate levels are also described. Highlights include the following: Plaintiffs won in 52% of tort trials in 2001. The 7,218 tort jury trials disposed of in 2001 represents a 23% decline from 9,431 tort jury trials disposed of in these counties in 1992. Litigants filed notice of appeal to a State appellate court in 13% of tort trials disposed of in 2001. (November 2004). NCJ 206240 Acrobat file (543K) | ASCII file (34K) | Spreadsheets (zip format 37K)

     Terrorism: The President's Memorandum to the Director of Central Intelligence regarding the strengthening Central Intelligence Agency capabilities and Memorandum to the Attorney General regarding further strengthening of Federal Bureau of Investigation capabilities (11-23-2004).

     Reference:

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

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