CONTENTS

Police officer who allegedly intentionally aimed and shot "less lethal projectile" at the head of a "non-threatening" suspect with suicidal tendencies was not entitled to qualified immunity in federal civil rights lawsuit.

     An Orlando, Florida man sues two police officers and the city for the alleged excessive use of force in the course of detaining him and preventing him from committing suicide. Summary judgment was granted to all defendants by the trial court. A federal appeals court, while upholding this result in general, overturned a grant of qualified immunity to one of the officers, who allegedly aimed his gun and shot at the plaintiff's head.

     The plaintiff had allegedly wrapped a telephone cord around his neck, attached the other end to a ceiling vent, and used a kitchen knife to make multiple cuts on his arms, threatening to kill himself if his wife followed through on her threats to leave him. He then allegedly grasped the knife with both hands and pointed it toward his heart. The officers arrived at the apartment after the wife called them, and entered the apartment with the wife's permission.

     The suicidal man alleged refused to obey orders to drop the knife, but also failed to make any threatening moves toward the officers. One of the officers hit the man with a Sage SL6 Launcher to subdue him. The Sage Launcher, according to the court, is a "less lethal" munition that fires a polyurethane baton that is 1.5 inches wide, travels approximately 240 feet per second and delivers a force of 154 foot/pounds of energy--approximately the energy of a professionally-thrown baseball. It is allegedly designed to be used to protect persons from self-inflicted injury, especially when using a nightstick or baton would be unsafe or impractical, and is not designed to penetrate the body, but only to leave bruises.

     The weapon was fired twice and hit the man once in the head. The officer subsequently claimed that he was aiming at the man's shoulder. The impact fractured the man's skull, resulting in brain injuries which now requires the taking of medication to prevent seizures, and causes other ailments rendering him disabled and unable to work.

     Under applicable police department policies, targeting the head or neck with the weapon is acceptable only in deadly force situations, according to the court.

     In overturning summary judgment on the basis of qualified immunity for the shooting officer, the appeals court noted that at the time of the shooting, the plaintiff was not committing a crime, resisting arrest, or posing an immediate threat to the officers, or anyone else besides himself. The court also found that, for purposes of analysis, it had to assume that the officer was aiming for the plaintiff's head, since he was trained in the use of the weapon, that the weapon accurately hits targets from distances up to five yards, and that the plaintiff suffered head injuries. The weapon can constitute lethal force if shot at a subject from close range, the court stated, and the officer was aware of this.

     If the officer intentionally aimed the Sage Launcher at the plaintiff's head under these circumstances, the appeals court found, he violated the plaintiff's Fourth Amendment rights by using excessive force. Despite the lack of prior case law with exactly similar circumstances, the court reasoned, the officer should have known that by intentionally shooting the plaintiff in the head would violate his clearly established Fourth Amendment rights.

     Mercado v. City of Orlando, No. 04-13477, 407 F.3d 1152 (11th Cir. 2005).

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Police officer who shot unarmed burglar allegedly obeying his order to exit a cabinet in which he had been hiding was not entitled to qualified immunity if the facts were as the plaintiff claimed--that he had not attempted to reach his hand into his pocket.

     A police officer went to respond to a burglar alarm at a commercial business. When he observed a man inside carrying computer equipment, he tapped on the window with a flashlight to get the man's attention, and the man took off, running because he had an outstanding misdemeanor warrant for his arrest.

     Officers subsequently found the man hiding in a cabinet inside the building. One of the officers subsequently claimed that the man in the cabinet did not heed his commands to "show me your hands," but instead reached inside his jacket with his right hand. The officer stated that he feared for his life and "instinctively fired his gun" at the suspect. Another officer present stated that he never saw the man reach inside his jacket.

     The officer fired his weapon at the man seven times, hitting him in several places in his body. The man subsequently pled guilty to breaking and entering and possessing criminal tool, but he subsequently sued the shooting officer, the police chief, and the city for alleged excessive use of force against him.

     A federal appeals court found that the officer was not entitled to qualified immunity. Under the facts alleged by the plaintiff, the officer was not faced with a serious threat of physical harm to himself or his partner which would necessitate the use of deadly force. After the officer ordered the plaintiff to exit the cabinet, according to the plaintiff he moved his right hand "from down to out" to grab onto the edge of the top of the cabinet. Nothing about that movement, the court stated, would be threatening to a reasonable officer, rather it would appear that the plaintiff was attempting to comply with the officer's command to exit the cabinet, and he allegedly never reached into his jacket pocket as the officer claimed.

     If the incident occurred as the plaintiff claimed, therefore, the officer's actions violated the plaintiff's clearly established constitutional rights, and the officer was not entitled to qualified immunity.

     Sample v. Bailey, No. 04-4174, 2005 U.S. App. Lexis 8328 (6th Cir.).

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Police officer who allegedly failed to order that arrestee be taken to the hospital when she was exhibiting symptoms of a heart attack was not entitled to qualified immunity in her estate's wrongful death lawsuit. If these actions occurred in this manner, they violated her clearly established constitutional right to receive necessary medical attention.

     The estate of a pre-trial detainee who died from a heart attack while in custody sued a police officer, claiming that he acted with deliberate indifference to the detainee's serious medical needs by failing to order that she be taken to the hospital and failing to tell his replacement that she was ill and needed transportation.

     A federal appeals court upheld the refusal of the trial court to grant the officer's motion for qualified immunity.

     Taken in the light most favorable to the plaintiff, the officer knew that the woman, who had been arrested during a fight she had with her sister, was experiencing chest pains and shortness of breath, some of the classic symptoms of a heart attacked, and believed at the time that she was three days behind in taking her heart medication, and yet failed to have her transported to the hospital and failed to inform his relief of her illness.

     These actions, if true, were sufficient to permit a jury to infer that the officer was deliberately indifferent to the detainee's serious medical needs, in violation of her clearly established constitutional right to receive necessary medical attention.

     Carter v. City of Detroit, No. 04-1005 2005 U.S. App. Lexis 9717 (6th Cir.).

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Police officers did not act unreasonably in detaining or arresting grandfather in the course of a custody dispute in which he and his wife allegedly interfered with his daughter-in-law's efforts to gain access to her son, who her estranged husband had taken to the grandparents' day care center.

     Two police officers appealed from a denial of qualified immunity in a lawsuit arising from an incident in which they placed a man in a police car during a custody dispute. He asserted claims for false arrest and excessive use of force. A federal appeals court has held that the officers were entitled to qualified immunity on the false arrest claims, but that one of them was not entitled to qualified immunity on certain excessive force claims.

     The plaintiff's adult son had left his marital home with the couple's two-year-old son, and went to his parent's house. Officers told the wife that they could not intervene because the husband had lawful custody of the child. The wife later found the child at a daycare center run by her husband's parents, and her husband's mother allegedly refused to give the child to the wife.

     An officer told a daycare center employee that they must return the child to the mother, but the husband's mother again refused. Ultimately, the police chief directed an officer to arrest the husband's father, who allegedly resisted, and was then handcuffed. The arrestee had previously had a stroke and was diabetic, as well as having recently undergone surgery. The arrestee claimed that an officer slammed the car door on his head.

     He claimed that he had been arrested without probable cause and subjected to excessive force. While the police chief was granted summary judgment on excessive force claims concerning the police car door, since he was not involved in closing the door, the trial court denied the officers' other summary judgment motions.

     The appeals court found that the officers were entitled to qualified immunity regardless of whether the grandfather was arrested or merely detained for investigatory purposes. Under the circumstances, even arresting the grandfather was not objectively unreasonable, the appeals court found, as it is clear law that a child's parents, rather than his grandparents, are his primary custodians. The officers were confronted with a situation where the child's mother claimed that another individual was keeping her son from her. Since the other individuals, the grandparents, were not the child's parents, a reasonable officer could believe that they were in some way interfering with the mother's custody of the child.

     While the handcuffing of the grandfather did not constitute an excessive use of force, the officer who allegedly angrily slammed the police car door, once on his foot and again on his head, was not entitled to qualified immunity, in light of the claim that the grandfather was not then doing anything justifying such a use of force.

     Tarver v. City of Edna, No. 04-40734, 2005 U.S. App. Lexis 9533 (5th Cir.).

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Police officers were entitled to qualified immunity for arresting for trespass a woman who broke into a house in which she had been sexually assaulted in order to retrieve her clothes. The facts within the officers' knowledge at the time were sufficient to give them a reasonable belief that she had committed the crime for which they arrested her.

     After a woman was sexually assaulted by two men, she broke a window and entered the house in which the assault took place in order to retrieve her clothes. After police officers conducted two separate investigations, concerning both the sexual assault and the break-in, the woman was charged with burglary, theft, criminal trespass, and criminal mischief.

     The charges against her were subsequently dismissed, and she filed a federal civil rights lawsuit against the officers for false arrest. A federal appeals court has ruled that the officers were entitled to qualified immunity from liability, since the facts, as known to them at the time of the arrest provided them with a reasonable belief that the plaintiff had committed the crime of criminal trespass.

     After the plaintiff's car broke down, two men who purportedly stopped to help her instead drugged her and forcibly took her to a beauty parlor one of them owned. They later took her to a home where she was held in an intoxicated state for several hours. When she awoke, she was partially undressed, and believed that she had been sexually assaulted. The men forced her out of the house, leaving her on the front porch. She subsequently broke a small window pane and reentered the building, retrieving her personal belongings as well as three plastic bags containing items including a photo of one of her attackers, several pieces of mail, two canceled checks made out to one of the men, unopened bottles of alcohol, watches, a jacket, clothes, and a cordless phone. She later told officers that she took these items to help identify her attackers.

     Later, at the hospital where she was treated for her physical injuries, she described all this to a police officer, including breaking into the house to retrieve her clothes. The sister of one of the men who allegedly assaulted her, who was the owner of the home where the assault occurred, reported the break-in to police, and a separate investigation of the break-in began.

     One of the men admitted bringing the woman to the house, but claimed that she was extremely intoxicated and had refused to leave. He also denied having had sexual intercourse with her and said that he and his friend had left the house after calling police because the woman refused to leave.

     Eventually, officers conducting the two investigations became aware of each other's work. The officer investigating the sexual assault complaint determined that it was unfounded and that there was not enough evidence to proceed. Prior to the closing of the sexual assault case, the other officer prepared an affidavit of probable cause for the woman's arrest for the allegedly burglary of the residence, and then arrested her without a warrant, listing the officers conducting both investigations as the police personnel involved. The charges against the woman were dismissed for failure to prosecute when the owner of the house failed to appear in court.

     DNA samples later confirmed that the brother of the homeowner was the source of the semen found in the rape exam that was performed on the woman, and the two men later pled guilty to sexually assaulting her.

     The appeals court noted, however, that the plaintiff admitted to the officers that she broke a window to enter the residence and left with bags of items, some of which were unlikely to help identify her attackers, such as wine and watches. While her explanation for entering the home was a factor in any probable cause analysis, the court stated, "it is not dispositive."

     The officers evidently did not believe the woman's explanation for her entry. The standard for determining probable cause for an arrest does not require that officers correctly resolve conflicting evidence or that their determinations of credibility be accurate in retrospect.

     While the officers may have made a mistake, the court argued, their belief was not unreasonable in light of the information they possessed at the time, in light of her admission of breaking and entering, and removing items "of little or no evidentiary value" which she returned only after the officers were alerted to the fact that she had them.

     Given the existence of arguable probable cause for an arrest, the court reasoned, the plaintiff also was unable to pursue a claim for malicious prosecution.

     Wright v. City of Philadelphia, No. 03-1633 2005 U.S. App. Lexis 10370 (3d Cir.).

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Deputies who shot a sword-carrying schizophrenic man, rendering him paraplegic, after he appeared to be ignoring their orders to drop the weapon and attempted to enter a house were entitled to qualified immunity. They did not know that he could not hear their orders, or that he was attempting to enter his own home.

     A California man was shot and rendered a paraplegic by deputies after he allegedly ignored warnings and commands to stop and drop an edged sword that he was carrying and instead tried to enter a house in a residential area.

     Stating that the facts of the case were "tragic," and the case a "difficult one," a federal appeals court ruled that because the two deputies did not exceed constitutional limits on the use of deadly force when they shot the plaintiff, and that even if they did, a reasonable officer in their position would not have known that shooting him was a violation of clearly established law, they were entitled to qualified immunity.

     The plaintiff was reported to the sheriff's department as wearing a ski mask and carrying a sword while walking through a suburban residential neighborhood and "behaving erratically." Deputies were later informed that the plaintiff had been seen "licking" the sword and was now walking in the middle of the street. When they found him, he failed to heed their commands to stop or drop the 2-1/2 foot long Civil War era cavalry saber. As it subsequently turned out, the man was listening to a "Discman" music player at the highest volume using headphones concealed underneath his knit cap, and did not heard their orders or notice them at the time.

     The deputies gave a warning that they would shoot, and continued to order him to halt, but all he did was raise the sword and make a loud growling or roaring sound. The deputies were convinced, according to the court, that the man presented a risk of physical harm to themselves or others, and considered his actions to be a felony of drawing or exhibiting a deadly weapon to resist or prevent arrest.

     The plaintiff attempted to enter a home which was, unknown to the deputies, one belonging to his parents, where he lived. The plaintiff had just taken a dose of anti-psychotic medication for schizophrenia and bipolar disorder for which he was being treated. He was unable to open the door, as he had lost or misplaced his key, and began to walk around out of sight into the back of the house.

     The deputies believed that he should not be allowed to go there because of the possible danger to anyone in the yard or the house, and both of them fired, with at least one shot hitting him. They then saw him attempting to open a door into the garage through which entrance could be gained into the residence. He again ignored orders to drop the sword, and further shots were fired, with one of the bullets severing his spine, causing him to fall to the ground, and rendering him a paraplegic.

     The deputies, not knowing that the plaintiff could not hear their orders, or that he was attempting to enter his own home, could reasonably have believed him to be a danger to themselves and others. They also did not know that no one was present inside the home he was attempting to enter. Their actions, the appeals court panel's majority ruled, were either reasonable or at least they could have believed that they were reasonable under the circumstances.

     The plaintiff was armed with a dangerous weapon, and was ignoring commands to drop it. "The tragedy is that he persisted even after he admitted seeing the deputies and hearing them order him to drop the sword, resulting in a terrible injury. However, that this happened does not make the deputies' actions objectively unreasonable, or unconstitutional."

     The deputies were therefore entitled to qualified immunity, even if they may have been mistaken, but reasonably so, in thinking that the plaintiff would harm someone.

     A strong dissent by one member of the panel argued that there was no evidence that any person was in significant or immediate danger, and that the officers knew that the plaintiff had been walking the streets for some time without harming or endangering anyone. "The case is one that demands judgment by the citizens of Sacramento County assembled as a jury," the dissenting judge argued, "not immunity for the injury-inflicting police."

     Blanford v. Sacramento County, No. 03-17146, 406 F.3d 1110 (9th Cir. 2005).

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City's prohibition on the placing of leaflets on car windshields or elsewhere on vehicles without owner's consent did not violate the First Amendment, and was a reasonable content-neutral time, place and manner restriction.

     Can a city, without violating the First and Fourteenth Amendment, prohibit individuals from placing leaflets on car windshields and other parts of a vehicle without the consent of an owner? A federal appeals court has answered, "Yes."

     The law in question, the court found, represented a content-neutral restriction on the time, place, and manner of speech, narrowly regulated the problems at hand (littering, visual blight and unauthorized use of private property), and left open ample alternative avenues for distributing such leaflets, such as face-to-face on public streets or door-to-door in neighborhoods. The court found that the law had "much in common" with a ban on placing signs on utility poles upheld by the U.S. Supreme Court in Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984).

     The law was challenged by the head of the local American Legion who, with no apparent knowledge of the local ordinance, began distributing leaflets on behalf of the American Legion by placing them under the windshield wipers of cars parked on public property. He was fined $500 as a result, and was evidently the first person against whom the city enforced the ordinance. He then filed a federal civil rights lawsuit claiming that the law was a violation of his free speech rights.

     While distributing leaflets is clearly within the scope of First Amendment freedoms, the appeals court noted, reasonable time, place, and manner restrictions on leafleting have been upheld numerous times, so long as they are content-neutral.

     An appendix to the appeals court decision gathers similar statutes and ordinances from one State, one territory, and 38 cities in 19 other States, all prohibiting placing leaflets on car windshields.

     The appeals court rejected the plaintiff's argument that the city had regulated a public forum, finding that, just like utility poles on public streets and sidewalks, private cars temporarily parked on public streets do not constitute a public forum to be used for the communication of ideas. Parking a car on a public street, the court commented, is not an "invitation to place literature on the car or, worse, to become a vehicular sandwich board for another citizen's message of the day."

     Jobe v. City of Catlettsburg, No. 04-5222, 2005 U.S. App. Lexis 7890 (6th Cir.).

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Issuance of a citation requiring two men to appear in court on charges of trespass did not constitute a Fourth Amendment "seizure," and therefore they could not pursue a federal civil rights lawsuit for malicious prosecution after the charges were subsequently dismissed. Jury award of $173,237 in damages was properly vacated.

     Two men campaigning for positions on a local municipal governing body in New Jersey passed out literature to persons on public property and also posted signs at an intersection. They had a verbal confrontation with one of their political opponents, who drove by, and they suspected that he then called the police chief to pressure him to stop their campaigning.

     A police officer came by and told them to leave the area, which they refused to do. The officer issued a summons for "defiant trespass," allegedly on the basis that their approach of cars stopped at the intersection was dangerous and that their signs were blocking motorists' views. They were convicted twice, and both times the convictions were reversed on appeal, after which the charges were dismissed.

     They filed a federal civil rights lawsuit for malicious prosecution, and a jury awarded them $78,237 in compensatory damages (including the costs of legal fees in relation to the criminal prosecutions and appeals), $75,000 in punitive damages against the police chief, and $20,000 in punitive damages against the police officer. The trial judge vacated the jury's awards however, finding that there had been no Fourth Amendment seizure as required in a malicious prosecution civil rights action.

      A federal appeals court upheld this result. It found that the mere issuance of a citation to appear in court to the plaintiffs had not constituted a Fourth Amendment seizure. "Pretrial custody and some onerous types of pretrial, non-custodial restrictions constitute a Fourth Amendment seizure." The plaintiffs' attendance at trial did not qualify as such a seizure.

     DiBella v. Borough of Beachwood, No. 03-4892, 407 F.3d 599 (3d Cir. 2005).

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Owner of dog failed to assert a viable constitutional claim in seeking damages for the loss of 60 days of the companionship of her pet on a theory that her due process property rights had been violated by the dog's detention. Plaintiff ordered to show cause why she should not be sanctioned for making a "frivolous argument in a meritless case."

     A resident of a Milwaukee, Wisconsin suburb owned a 95-pound Doberman Pinscher dog that was allegedly constantly getting loose and "frightening the neighbors." She had received nine citations for violation a municipal ordinance that forbids people to let their dogs run wild, which cost her fines and attorneys' fees of $25,000.

     The next time the dog got out, the local humane society picked it up and the town authorities allegedly told them to hold the dog as a "stray," despite knowing that it was not a "stray," but rather the woman's "notorious animal."

     The dog owner filed a federal civil rights lawsuit claiming that the town had deprived her of her property without due process of law, seeking injunctive relief and damages. After holding the dog for 60 days, the humane society returned it to her, so her lawsuit "became one for the loss of 60 days of animal companionship."

     A federal appeals court commented that "if ever the resolution of a dispute belonged at the local level of government, it is this dispute over what to do about the plaintiff's inability, or, more likely, unwillingness to control her intimidating Doberman."

     The court stated that it was "impossible to discern a federal interest" in the case. There was no suggestion that the plaintiff belongs to a "discriminated-against minority," that the officials were irrationally hostile to dog owners, that the town intended to sell the dog in order to retire the town debt, or that the dog owner was a political opponent of the town's mayor. The leash laws involved were not asserted to challenge values contained in the U.S. Constitution or federal laws, and there was no facts suggesting that the dog's detention was intended to retaliate against the plaintiff for asserting her federal rights.

This is a neighborhood squabble over a dog, a squabble properly to be resolved at the neighborhood or local level rather than by federal judges sitting in Milwaukee and Chicago. Such hotly litigated issues as whether a neighbor's two-pound dog the scruff of whose tiny neck the Doberman clamped its jaws on was a puppy that the Doberman was playing sweetly with or a minute adult that the Doberman was terrifying do not engage the expertise of federal judges.

     While the dog was seized without notice and an opportunity for a pre-seizure hearing, this was necessarily the case, since the seizure occurred in the street. "Only a post-deprivation hearing was feasible," and the plaintiff could have gotten that by filing a petition in the local state court for the return of an animal wrongfully withheld. No more due process than that was required.

     Characterizing the case as "nuisance litigation that the federal judiciary does not need," the appeals court upheld a judgment for the defendant municipality, but also ordered that the plaintiff show cause why she should not be subject to sanctions for "making a frivolous argument in a meritless case."

     Wall v. City of Brookfield, No. 04-313, 406 F.3d 458 (7th Cir. 2005).

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New York's highest court, in two cases involving police interactions with motorists, finds that there was no special relationship with injured parties and the officers, barring liability for failure to protect them. City was therefore not liable for injuries to man struck by car when officer instructed motorist to move at the scene of an accident, and county was not liable for injuries ill motorist suffered when he lost control of his vehicle after officer instructed him to move it from the side of the highway.

     Under New York state law, municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, including the providing of police protection, except when the plaintiffs establish a "special relationship" with the municipality.

     In two cases consolidated for appeal, the highest court in New York recently examined questions of municipal liability for the actions of police officers in traffic situations, and in both instances found that the plaintiffs had not established a special relationship, so that they claims should be dismissed.

     In the first case, a woman driving a car collided with a vehicle carrying security officers from a county hospital. When police officers arrived on the scene, one of them told her to move her car forward and out of the middle of the intersection where it had stopped. The driver moved the vehicle backward instead of forward, crushing the legs of a person standing between her car and the one behind her. The injured man claimed that the officer acted negligently in telling the driver to move her car while she was unfit to drive from the result of the accident. A jury found the city 100% responsible for the man's injuries, even though it found that the driver was also negligent. The case was retried after an intermediate appeals court stated that it was impossible for the driver to have been negligent but not in some degree responsible for the plaintiff's injuries. On retrial, the jury found the city 97% at fault.

     The New York highest court reversed, finding that the officer was exercising his discretion when he told the motorist to move her car. Additionally, there was no special relationship with the injured man. The officer's contact was with the driver, not the plaintiff. "Not only was there a lack of a special relationship between plaintiff and the police officer, there was no communication or relationship at all." Under such circumstances, the city could not be held liable.

     In the second case, a highway patrol officer spoke to a motorist who had pulled his car over to the shoulder of the expressway. The motorist alleged that he told the officer that he had chest pains and was not feeling well, but did not claim that he told the officer that he was too ill or dizzy to drive. The officer, after explaining that it was not safe to park on the side of the road, told the motorist to move his car to the nearest gas station.

     The motorist drove off, but lost control of his car, suffering serious injuries after he drove it into a guardrail and a telephone pole. He sued the county, claiming that the officer, with whom he alleged a special relationship, was to blame for his injuries. The trial court denied the county's motion for summary judgment. The New York high court ruled that the motion should have been granted.

     Liability for a special relationship requires "knowledge on the part of a municipality's agents that inaction could lead to harm" In this case, the motorist never expressly told the officer that he was too sick to drive, and it was not a case in which it was "manifestly clear" to the officer that the motorist was so disabled that he was unable to drive a short distance to a safer location.

     The officer was therefore not on notice that instructing the motorist to remove his car from the shoulder of the expressway could lead to harm.

Under these circumstances, we cannot expect the police to make a refined, expert medical diagnosis of a motorist's latent condition. Requiring them to do so would improperly burden police in carrying out their duties.

For there to be special relationship-based liability, a municipality's agent must be clearly on notice of palpable danger, as where it is so obvious that a layman would ascertain it without inquiry, or where a person unambiguously communicated his incapacity to the officer. At that point, the officer would have to weigh the danger of leaving the car in a dangerous situation (at least until help arrived) against the danger posed by having the driver move the car. This calls for discretion and could result in liability only when it is clear that the danger in having the driver move the car outweighs the danger inherent in leaving the car in place for some time. In this case, however, the highway patrol officer was not adequately on notice to satisfy this test.

     The plaintiffs in both cases failed to establish the existence of a special relationship which could be the basis for municipal liability.

     Kovit v. Estate of Hallums, #62, 63, 2005 N.Y. Lexis 1057.

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Police chief should have known that the warrantless seizure of 70 "derelict" vehicles from salvage yard property was unlawful and that ordinance providing for such seizures without pre- or post-deprivations hearings violated due process. His supposed reliance on the ordinance and consultation with a city attorney did not excuse him from knowing the applicable law.

     A Wyoming police chief seized over 70 "derelict" vehicles from a woman's property. She sued the chief, along with the city and the mayor, claiming violations of her Fourth Amendment right against unreasonable seizures and her Fourteenth Amendment right to due process.

     The trial court found that the chief's actions had violated the plaintiff's clearly established rights, but held that he was immune from suit because his consultation with the city attorney constituted "extraordinary circumstances" preventing him from knowing the clearly established law. The plaintiff settled her claims with the city and mayor, and appealed the trial court's grand of immunity to the police chief.

     The plaintiff owns a salvage yard, in which she stored an assortment of vehicles and scrap metal, on property parts of which were zoned industrial and part of which was zoned residential. Fairgoers who went to the county fair and rodeo on property across the street apparently found the derelict vehicles unsightly, and complained to the city. The city attorney sent the owner a letter stating that the vehicles violated a derelict vehicle ordinance and had to be removed within 30 days.

     The police chief discussed the matter with the city attorney and city manager, and subsequently tagged vehicles on the property. The plaintiff moved all but a few vehicles from the residentially zoned part of the property to the industrially zoned portion, where, based on a 1982 settlement agreement with the city, she believed she had a right to store the vehicles.

     The city then proceeded to tow over 70 vehicles from the property to its landfill. The plaintiff's lawsuit claimed that her rights were violated by the seizure of her property without a warrant or hearing.

     The police chief, on appeal, did not challenge the trial court's finding that he violated the plaintiff's Fourth and Fourteenth Amendment rights, which were clearly established, as neither exigent circumstances nor special needs justified the warrantless seizure of the vehicles, so it was unreasonable, and violated due process as it was done without a hearing.

     The appeals court rejected the police chief's arguments that he was prevented by "extraordinary circumstances" excusing him from knowing the clearly established law--his consultation with the city attorney and his reliance on the provisions of the city's "derelict vehicle" ordinance.

     In this case, however, the police chief and city attorney allegedly never once discussed the applicable constitutional law governing the complained of conduct. The court rejected the argument that a consultation with an attorney who never mentioned the requirements of a warrant or notice-and-hearing--somehow "prevented him from knowing that these procedures were constitutionally required."

     This amounted, the appeals court stated, to an argument that officers should not be held responsible for knowing the law in the first place, not that consultation with the city attorney somehow "interfered" with that knowledge. A reasonably competent public official should "know the law governing his conduct."

     The appeals court further found that the police chief should have known that the ordinance in question was unconstitutional, since it failed to provide any hearing at all, whether pre- or post-deprivation. This, the court concluded, was clearly unconstitutional.

     Since the police chief should have known that his conduct was unlawful, he was not entitled to qualified immunity, and the claims against him were reinstated.

     Lawrence v. Reed, No. 04-8030, 406 F.3d 1224 (10th Cir. 2005).

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Police officer's alleged pat-down search of protest organization's office manager during execution of a search warrant was unreasonable when carried out without any individualized reasonable suspicion that he was involved in criminal activity or possessed weapons. In light of the fact that the warrant was not for weapons or contraband, but rather for protest documents and photographs, it did not justify generalized detention and pat-down of all those present in the absence of such reasonable suspicion.

     A protest organization called the Denver Justice and Peace Committee filed a federal civil rights lawsuit challenging the search of their offices pursuant to a warrant. The organization's office manager, who was on the premises at the time, also challenged one officer's pat-down search of his person. The officer appealed from the denial of his motion for qualified immunity. A federal appeals court upheld this result, finding that the pat-down search was unreasonable and prohibited under the circumstances.

     The search warrant was issued as part of an investigation into an incident of vandalism during a protest the group organized at a local department store. The warrant authorized the seizure of various pamphlets, papers and flyers related to the protest, as well as videotapes and photos of persons protesting any organization or business, and the membership list for the group.

     The plaintiff office manager arrived on the scene after the police began to execute the warrant. He explained his presence and provided identification. The defendant officer allegedly immediately put his hands on the office manager and conducted a pat-down search without his consent. The officer also asked him whether he had any knives or other weapons, which he denied possessing. No weapons were found. No one else present had been frisked, and the plaintiff was allegedly the only one present with dark skin and an apparent Hispanic appearance.

     The appeals court stated that it was satisfied, based on the record, that the plaintiff had sufficiently alleged that he was frisked without any reasonable suspicion that he was involved in any criminal activity or possessed any weapon. The appeals court rejected the argument that during the execution of a lawful search warrant, police should have the authority to frisk persons who "enter" an area where a search warrant is being executed, even without such reasonable suspicion.

     The court also noted that the police were not searching, in this instance, for weapons, the proceeds of a violent crime, or contraband, but rather searching for potentially First Amendment protected materials concerning protest activity. While they were investigating an incident of alleged vandalism, neither the organization, the office manager, nor anyone else at the scene was necessarily implicated in the incident.

     Under the circumstances, it should have been clear to the officers executing the search warrant that the circumstances of the search did not involve possible danger or the presence of contraband that would have permitted detention of persons present at the scene. Instead, a pat-down search of an individual would be prohibited, absent reasonable, individualized suspicion.

     Denver Justice Comm. v. City of Golden, No. 03-1470, 405 F.3d 923 (10th Cir. 2005).

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

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Assault and Battery: Handcuffing

     Officers did not use excessive force in the course of handcuffing a motorist arrested for a non-violent traffic offense, even though she had a reverse shoulder prosthesis in her shoulder, and suffered a broken humerus when her hands were handcuffed behind her back. Evidence showed that the arrestee smelled of alcohol, refused to take field sobriety tests, was "combative" during her handcuffing and detention, and failed to inform the officers of the prosthesis until after the handcuffing process had begun. Schultz v. Hall, No. 3:04CV242, 365 F. Supp. 2d 1218 (N.D. Fla. 2005).

Assault and Battery: Physical

     Motorist's allegation that an officer broke her arm during the course of an arrest by "jerking" her arms after she raised them in a "surrender" gesture stated a viable claim for excessive use of force, so that the trial court improperly dismissed the complaint. Byrd v. Cavenaugh, No. A04A2013, 604 S.E.2d 655 (Ga. App. 2004).

Defenses: Qualified Immunity

     Federal appeals court lacked jurisdiction to review a denial of qualified immunity when the defendant police officer made assertions on appeal which challenged the trial court's factual findings in a lawsuit concerning his shooting of an arrestee, and whether the shooting was accidental or intentional. Henry v. Purnell, No. 04-1810, 119 Fed. Appx. 441 (4th Cir. 2005). [PDF]

     Arresting officers who had at least arguable probable cause to believe that the suspect was one of the robbers they saw committing a crime and attempting to escape were entitled to qualified immunity from false arrest and false imprisonment claims. Wray v. City of New York, No. 01-CV-04837, 340 F. Supp. 2d 291 (E.D.N.Y. 2004).

Defenses: Statute of Limitations

     Federal civil rights claim for detective's alleged unlawful seizure of computer from man's apartment accrued at the time the seizure occurred, or, at the latest, when the owner learned of the seizure, and his federal civil rights lawsuit was therefore time barred under an Indiana two year statute of limitations. Holly v. Anton, No. 03-1653, 97 Fed. Appx. 39 (7th Cir. 2004).

     Claims for excessive use of force during drug possession arrest accrued on the date of the arrest, even though the plaintiff claimed not to realize the permanent nature of his injuries from the officers' alleged choking and hitting until three months later. His lawsuit, therefore, was time barred under the Ohio statute of limitations. Hodge v. City of Elyria, No. 03-3296, 126 Fed. Appx. 222 (6th Cir. 2005). [PDF]

     Lawsuit asserting claims under Kansas state statute concerning legitimate procedures for strip and body cavity searches was governed by three-year statute of limitations applicable to statutory claims, rather than one-year statute of limitations governing privacy claims or two-year statute of limitations applicable to federal civil rights claims in the state. The arrestee's lawsuit, therefore, was not time barred and was reinstated. McCormick v. City of Lawrence, No. 90,853, 104 P.3d 991 (Kan. 2005).

Dogs

     A police dog bite of a handcuffed vehicle passenger at the scene of a traffic stop was not a Fourth Amendment seizure, because the police officer did not intentionally use the dog to seize the passenger or direct the dog to bite him. Cardona v. Connolly, No. 3:03CV1838, 361 F. Supp. 2d 25 (D. Conn. 2005).

Expert Witnesses

     Expert witness's proposed flat rate fee for a deposition at his office in a federal civil rights lawsuit concerning alleged excessive use of force was "exorbitant and unreasonable," without an explanation as to why he blocked out a full day for a deposition, which might be a short one. Additionally, the court finds that the issues on which he was to render an opinion were not complex, and that the flat fee would amount to over $600 per hour. A reasonable fee, the court rules, would be $250 per hour. Massasoit v. Carter, No. 1:04CV00151, 227 F.R.D. 264 (M.D.N.C. 2005).

False Arrest/Imprisonment: Mental Illness Confinement

     Officers did not violate any clearly established constitutional rights by transporting a man, who had engaged in "strange behavior" to a hospital for a psychiatric examination without his consent. Must v. West Hills Police Dept., No. 03-4491, 126 Fed. Appx. 539 (3rd Cir. 2005). [PDF]

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest the plaintiff for providing false information about a crime when they had reason to believe that he had falsely told police that a particular person had broken into or forced his way into his home. Granger v. Slade, No. CIV.A. 302CV1209LN, 361 F. Supp. 2d 588 (S.D. Miss. 2005).

     Off-duty police officer had probable cause to arrest motorist for driving while intoxicated based on his observations, including erratic driving, the strong odor of alcohol, and the motorist's bloodshot and glassy eyes, slurred speech, and staggering, as well as the observation of an open, and mostly consumed, bottle of wine in the driver's vehicle. Delong v. Domenici, No. A04A2222, 640 S.E.2d 695 (Ga. App. 2005).

     Factual issues as to whether officers reasonably relied on statements by the arrestee's ex-wife in deciding to arrest him, or should have reasonably made further inquiries precluded dismissal of a false arrest lawsuit against them. Fausto v. City of New York, 793 N.Y.S.2d 165 (A.D. 2nd Dept. 2005).

     The arrestee's possession of a prescription steroid medication provided probable cause to arrest him even though he had "at one time" had a prescription for the drug when there was no evidence that he possessed the drug under a current prescription at the time of the arrest. Burdeshaw v. Snell, No. 2:03cv1220, 365 F. Supp. 2d 1194 (M.D. Ala. 2005).

     Officers could have believed that they had probable cause to arrest motorist for driving under the influence of an intoxicant other than alcohol based on his alleged reckless driving, appearance, difficulty in exiting the vehicle, verbal confrontation with an officer, and refusal to take field sobriety tests. Meadows v. Thomas, No. 03-5609, 117 Fed. Appx. 397 (6th Cir. 2004). [PDF]

Firearms Related: Intentional Use

     Officers acted reasonably in using deadly force against a suspect who allegedly pointed a weapon at them through the doorway of his apartment. Estate of Sowards v. City of Trenton, No. 03-2036, 125 Fed. Appx. 31 (6th Cir. 2005). [PDF]

Interrogation

     Motorist's privilege against self-incrimination under the Fifth Amendment was not violated at the scene of a traffic accident by an officer's demand that he provide evidence of auto insurance. The privilege is not violated unless a suspect is compelled to give self-incriminating testimony utilized in court. Burrell v. Virginia, No. 02-2347, 395 F.3d 508 (4th Cir. 2005). [PDF]

Off-Duty/Color of Law: Firearms Related

     Factual issues concerning whether off-duty officer shot bar patron, and whether in doing so, he was acting under color of law and within the scope of his employment barred summary judgment for city in patron's federal civil rights lawsuit over the incident. Coles v. City of Chicago, No. 02C9246, 351 F. Supp. 2d 740 (N.D. Ill. 2005).

Procedural: Discovery

     City, county, and police department were not entitled to a stay of all discovery pending the resolution of motions for summary judgment on the basis for qualified immunity. Limited discovery, which is not overly broad, may be necessary even in relationship to qualified immunity issues, and the court notes that qualified immunity defenses do not apply to municipal liability claims, so that some materials not discoverable in relationship to claims against individual officers may be discoverable from the municipal defendants. Rome v. Romero, No. 03-MK-1902, 225 F.R.D. 640 (D. Colo. 2004).

Property

     Boat storage facility failed to show that the county had an official policy or custom which caused its alleged deprivation without due process of a property interest it had in a lien against a boat stored there, based on alleged return of boat to purported true owner, caused by sheriff's deputy's threat of arrest if the boat was not returned. Payne v. County of Sullivan, 784 N.Y.S.2d 251 (A.D. 3d Dept. 2004). [PDF]

Search and Seizure: Home/Business

     The question of whether police officers were entitled to qualified immunity on their warrantless entry into home, during which they gave breath tests to all minors present depended on a disputed factual issue of whether they were seeking to achieve law enforcement objectives or else merely to ensure the welfare of the children present. Accordingly the appeals court could not resolve the issue of qualified immunity on appeal. Strutz v. Hall, No. 04-1451, 124 Fed. Appx. 939 (6th Cir. 2005). [PDF]

Search and Seizure: Person

     Federal trial court declines to set aside jury's verdict for defendant officers in a lawsuit against them by a pedestrian they stopped for investigatory purposes when he was observed carrying a knife in the woods. The issue of whether the stop was reasonable, in light of the fact that it was not unlawful, by itself, to carry an open knife in a public place, was for the jury, rather than an issue of law for the court. Zirlin v. Village of Scarsdale, No. 03CIV.9903, 365 F. Supp. 2d 477 (S.D.N.Y. 2005).

     Search warrant requiring suspect to submit to DNA testing in connection with a murder investigation was adequately supported by probable cause and therefore did not violate the suspect's constitutional rights. Kohler v. Englade, No. CIV.A.03-857, 365 F. Supp. 2d 751 (M.D. La. 2005).

Search and Seizure: Vehicle

     Officer had reasonable suspicion to make an investigatory traffic stop based on a number of factors, including traffic violations, and the location and time of day, entitling him to qualified immunity on racial profiling claims asserted by vehicle's occupants. Anderson v. Bott, No. 03-16169, 127 Fed. Appx. 266 (9th Cir. 2005).

Strip Searches

     Unwritten custom of allowing city police investigators "unfettered discretion" in conducting their administrative investigations into alleged police misconduct resulted in unconstitutional strip searches of police officers during investigation of motorist's claim that the officers stole from him during a traffic stop. Monistere v. City of Memphis, No. 03-5412, 115 Fed. Appx. 845 (6th Cir. 2004). [PDF]

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     Article: "Juvenile Arson," by Paul Zipper and David K. Wilcox, 74 FBI Law Enforcement Bulletin No. 4, pgs. 1-9 (April 2005). "Law enforcement agencies serve an important role in the coordinated approach required to effectively address juvenile firesetting." [PDF]

     Article: "Enforcing Criminal Law on Native American Lands," by M. Wesley Clark, 74 FBI Law Enforcement Bulletin No. 4, pgs. 22-31 (April 2005). "Policing in and adjacent to land within 'Indian country' depends on a variety of factors" [PDF]

     Drug Abuse and Treatment: Drug Courts: An Effective Strategy for Communities Facing Methamphetamine (NCJ 209549), Bureau of Justice Assistance, May 2005. PDF Describes the history, mission, and success of drug courts, which combine intensive rehabilitation services with the justice system to effectively intervene with drug users to promote drug abstinence, community safety, and family welfare. This Bulletin provides an overview of the debilitating effects of methamphetamine, the program components of a drug court, examples of successful drug court programs in areas deeply affected by methamphetamine use, and policy recommendations for implementing a drug court that will target a methamphetamine-using population.

     Sex Offenders: National Sex Offender Public Registry. The U.S. Department of Justice Bureau of Justice Administration (BJA) has recently embarked on a National Sex Offender Public Registry (NSOPR). On May 20, Attorney General Alberto Gonzales announced NSOPR in his “First 100 Days” speech and directed the Office of Justice Programs’ BJA to have at least 20 state public sex offender registries connected and available for use in 60 days. Via web services and the U.S. Department of Justice’s (DOJ) Global Justice XML which allows systems to “speak” to each other, this national web site will provide parents and concerned citizens with a free-of-charge, reliable national portal to access already existing public state and territory sex offender registries. NSOPR will not collect or retain any control over sex offender data, and there will be no cost to the state or territory to link to the national site. For details on this public safety initiative, contact David Lewis, BJA Senior Policy Advisor for Information Sharing, at 202-616-7829. Press Release. Fact Sheet. [PDF] Major Points.[PDF] FAQ.[PDF]

      Terrorism and Homeland Security: Country Reports on Terrorism 2004. The U.S. Department of State's annual report on terrorism around the world. (Called "Patterns of Global Terrorism" in prior years). (136 pgs. April 2005). [PDF] Statistical data formerly found in this report is now presented in another document prepared by the National Counterrorism Center, entitled "A Chronology of Significant International Terrorism for 2004." (92 pgs. April 2005) [PDF]

     Reference:

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

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