CONTENTS

Off-duty police officer had probable cause to arrest two women for being in a public park after closing hours even if local police department operating procedure would arguably have cautioned against an arrest under those circumstances. Department's operating procedures were also not relevant on federal civil rights claims for excessive force, when the issue was whether the officer's use of force was "reasonable, not optimal."

     Two women arrested for being in a municipal park at 2 a.m., well after closing hours asserted federal civil rights claims and state law claims for false arrest and excessive use of force against an arresting officer, and the City of Albuquerque, New Mexico, which employed him. The trial court granted the officer's motion for judgment as a matter of law as to the false arrest claims, and the jury found for the officer on the excessive force claims.

     The women were arrested by the officer who arrived at the park in uniform and in his marked police care, but while off-duty. Teenagers that he accosted dispersed, but the two women were seen walking rapidly away from the officer, and one of them appeared to attempt to hide behind some trees, causing the officer to fear for his safety.

     When the two women refused to obey orders to sit down in front of his patrol car, and one of them started to walk past him, he attempted to handcuff one woman, and took her to the ground, where he succeeded in doing so, breaking her glasses in the process, and then handcuffing the other women without incident. They were charged with resisting arrest, disobeying an officer, and being in a park after closing, but the charges were ultimately dropped.

     On appeal, the two arrestees argued that the trial court erred in granting the officer's motion for judgment as a matter of law on the state and federal claims for false arrest. They claimed that when the Albuquerque Police Department's standard operating procedures (SOPs) and the subjective mental states of everyone involved were taken into account, the officer lacked probable cause to arrest them.

     The appeals court rejected these arguments. The plaintiffs claimed that the officer's alleged motives for arresting them, their purported ignorance of park closing times, and the requirements of the SOPs regarding off-duty arrests raised disputes about the legality of the arrest that should have been submitted to the jury.

     The appeals court noted that New Mexico law permits a police officer to make a warrantless arrest for a misdemeanor so long as the officer has probable cause to believe the offense has occurred in his presence. The "factual disputes" that the plaintiffs pointed to did not affect the determination of whether the arrests were supported by probable cause, so the trial court correctly granted judgment to the officer on the false arrest claims.

     Whether the officer's motivation for the arrest was based on the arrestee's presence in the park after closing hours or their refusal to obey his commands was not relevant. The officer observed them in the park after closing hours, and the ordinance prohibiting such presence does not require that those arrested have specific knowledge of the park's hours.

     The appeals court also rejected the argument that the arrest was invalid because the SOPs provide that an off-duty police officer may make an arrest only when "there is an immediate need for the prevention of a crime or apprehension of a suspect." The plaintiffs had claimed that "no reasonable off-duty" officer would have believed that he had cause to arrest them under the circumstances.

     That the department's own SOPs might require an officer to refrain from making an arrest under the facts of the case did not eliminate the existence of probable cause and make it a false arrest under state or federal law.

     The appeals court also upheld the exclusion of evidence of the police department's SOPs as irrelevant to the federal claims and likely to cause jury confusion on the state law claims, concerning the excessive force claims.

          The departments SOP on force provided that "where force is warranted, officers should assess the incident in order to determine which technique or weapon will reasonably de-escalate the incident and bring it under control safely. Officers shall use only that force which is reasonable and necessary to effect lawful objectives." APD SOP § 2-52-2A. The appeals court noted that to the extent that the SOP requires an assessment of an officer's choice between various techniques for "de-escalation," it went beyond the scope of the inquiry mandated by state and federal law for liability, which requires that an officer use "reasonable, not optimal, force."

     The violation of local police regulations, the court stated, is insufficient as the basis of a federal civil rights claim for excessive force, and the exclusion of the SOPs as to the state law claims was not an abuse of discretion.

     Tanberg v. Sholtis, No. 03-2231, 2005 U.S. App. Lexis 4332 (10th Cir. 2005).

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Federal Tort Claims Act did not provide jurisdiction for claim, by subsequently exonerated arrestees initially convicted of bank robberies, that FBI agents negligently failed to properly file and disclose conflicting eyewitness identifications of other suspects, resulting in their wrongful conviction. Wisconsin state law would not impose liability for negligence on private persons in similar circumstances, so there could not be liability for the U.S. government.

     Two men convicted on bank robbery charges, whose convictions were set aside by the trial court after new information was uncovered claimed that their convictions were the outcome of a series of apparent "blunders" on the part of the Federal Bureau of Investigation. They then sued the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. After a bench trial, the trial judge denied relief to the plaintiffs on the merits of the case.

     A federal appeals court affirmed, but on the alternative ground that there was no jurisdiction under the FTCA for the type of claim that the plaintiffs made.

     The case began in 1988, when two "middle-aged white men" attempted to rob a bank in Wisconsin. An FBI agent leading the investigation allegedly considered the crime a low priority since the thieves came away from the bank empty-handed, and delegated much of the responsibility for the investigation to a rookie, according to the appeals court.

     A photo array shown to four eyewitnesses to the attempted robbery resulted in identifications of two men as the robbers by two of the eyewitnesses and of one of the men by a third witnesses. Those identified, it subsequently developed, were neither the two later arrested and convicted, nor the two men ultimately determined to be the actual robbers.

     Subsequently, two middle-aged white men held up another Wisconsin bank, this time getting away with $400,000, and their description reminded one of the agents of an article describing an arrest in Massachusetts of two middle-aged white men who were accused in an armored car robbery. Photos of these two men were shown to eyewitnesses in the two bank robberies, and some of them identified one or the other of them as the robbers. During a subsequent line-up, some of the eyewitnesses, but not all, identified the two as the bank robbers. They were indicted for the bank robberies and firearms offenses.

      At trial, the prosecution relied entirely upon eyewitness identifications, including the testimony of the same three witnesses who had previously identified others as "similar" or "identical" to the offenders in the first attempted bank robbery. This time, these witnesses all made positive identifications of one or the other of the men on trial, or both. Neither the prosecution nor the eyewitnesses mentioned their earlier and inconsistent match-ups. The defense relied on alibi testimony that the defendants were in Boston when the crimes were committed, and the jury found the defendants guilty. They were both sentenced to prison.

     Despite the arrests, convictions, and incarcerations of the two men, "similar robberies" continued to plague midwestern banks, according to the court. Six years later, the FBI arrested a man on suspicion of involvement in the more recent robberies. In connection with that arrest, an FBI agent's report about the November 1988 photo array, which was exculpatory for the two plaintiffs, was finally learned of. Ultimately, the newly arrested man confessed that he and a partner had undertaken both the crimes for which the two plaintiffs had been convicted and incarcerated. A federal trial judge then vacated the plaintiffs' sentences and issued certificates of innocence.

     The two plaintiffs then sued the federal government under FTCA for malicious prosecution, false imprisonment, abuse of process and negligent supervision, as well as a federal civil rights claim against one FBI agent, who allegedly failed to place in the file some of the materials stemming from the original photo array. The trial court dismissed the malicious prosecution, false imprisonment, and abuse of process claims for failure to state claims upon which relief could be granted, and dismissed the federal civil rights claim because of lack of personal jurisdiction over the FBI agent. But it allowed the negligent supervision claim to go forward and also subsequently allowed a simple negligence claim to be added under the FTCA. Both of the claims were based on the assertion that the FBI's withholding of reports concerning the identifications in the initial photo array deprived the plaintiffs of the benefit of exculpatory evidence before and during their criminal trial and therefore led to their wrongful conviction.

     The trial court ruled for the government, holding that the plaintiffs had not proved that the FBI's failure to provide the reports had harmed them.

     The appeals court noted that under the FTCA, the U.S. government can be held liable for money damages for damages caused by the negligent or wrongful act or omission of its employees acting within the scope of their employment when the government, if a private person, would also be liable to the claimant under state law. A specific exclusion bars liability for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Another exception bars liability for the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency.

     The appeals court noted that the plaintiffs had not pointed to any instance in which Wisconsin has imposed private liability on a prosecutor or other state agent for "failure to disclose exculpatory evidence." Because the state did not impose liability on a breach of a governmental duty to disclose exculpatory evidence, the court found, "it cannot serve as a hook on which to hang federal jurisdiction here."

     Additionally, the appeals court found no basis to conclude that the state of Wisconsin would impose liability on a private person in the "same or similar circumstances" as the FBI agents in this case on the basis of negligence.

     Indeed, the appeals court noted that in Bromund v. Holt, 24 Wis. 2d 336, 129 N.W.2d 149 (Wis. 1964), the plaintiff brought a negligence lawsuit against a private doctor for careless performance of an autopsy commissioned by law enforcement in the course of their investigation into the death of the plaintiff's wife, and claimed that the negligent performance of the autopsy and flawed cause-of-death opinion led to his arrest and prosecution. The court found no liability to the person subjected to unjustifiable prosecution "in the absence of malice."

The court's reasoning is instructive. In its view, law enforcement and the safeguarding of society from crime would suffer if government agents (and outsiders hired to assist in law enforcement activities) were subject to private liability for damages arising from simple negligence in the performance of their duties.

     Since Wisconsin law would preclude the imposition of private liability on a private person in circumstances similar to those of the FBI agent in this case in the absence of malice, and since there was no offer of any evidence of malice, the FTCA did not waive the federal government's sovereign immunity as to the negligence claim, the appeals court concluded. As for the "negligent supervision" claim, the appeals court found that such a claim was barred by the "discretionary function" exception to the FTCA.

This is a sad case. It shows that even the nation's premier law enforcement agency sometimes bungles. But Congress has never enacted a wholesale waiver of the federal government's sovereign immunity from suit, so it is unsurprising that the FTCA does not cover every error by a federal agent. Neither of the two claims at issue here -- one for negligence and the other for negligent supervision -- comes within the carapace of the carefully limited waiver of federal sovereign immunity that the FTCA denotes.

     Bolduc v. U.S., No. 03-2081, 2005 U.S. App. Lexis 4718 (1st Cir. 2005).

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County executive order prohibiting persons previously convicted of sex crimes involving minors from receiving permits for performance activity such as balloon sculpture that would "entice" children to gather around was not a violation of the First Amendment.

     A New York "street performer" who engaged in activity such as balloon sculpture sought a permit to engage in his activities at a county owned 279-acre recreational complex known as Playland Park. When he was initially denied the permit on the basis that the county did not consider the park a public forum, he commenced litigation claiming that the denial violated his First Amendment rights.

     While this was pending, the county learned that the "street performer" was a repeat sex offender against children, having been twice convicted of offenses involving child molestation, including one conviction involving the molestation of a boy on a day when he was performing as a clown. A second application for a permit was therefore denied on the basis of a state law providing for the denial of licenses or employment when there is a direct relationship between an individual's prior criminal offenses and the specific license or employment sought. The performer also challenged this denial.

     After a federal trial court ruled that portions of the park in question were a public forum, and that the county's permit requirement could not be constitutionally applied to preclude the plaintiff from performing his act in the public forum areas within the park, the county issued a regulation in the form of a county Executive Order prohibiting performances using props or equipment in public forum areas by persons known to have been convicted of a sexual offense against a minor if the performance or activity would "entice a child to congregate around that person." The Order required a permit for such performances using props and equipment, and denied eligibility for such permits to persons such as the plaintiff.

     A federal appeals court has rejected the argument that the county's Executive Order was a violation of the First Amendment. The court noted that it was content neutral, and targeted only the potentially harmful secondary effects of the speech in question. In this case, the court noted, the street performer's balloon act was "expressly intended" to attract small children.

     Further, the Order at issue was found to be "narrowly tailored" to serve a governmental interest in protecting minors from sexual predators. It only applied to activities that would "entice" children to gather around the performer. The fact that it was not completely effective, since it did not eliminate all possible contact between persons convicted of sex offenses against children and minors on county property, did not alter the result, when it did at least contribute to a legitimate goal of limiting opportunities for subsequent child molestation to occur.

     The appeals court also held that the order was "civil" and "non-punitive" and therefore did not impermissibly constitute a retroactive enhanced punishment on already convicted sex offenders.

     Hobbs v. County of Westchester, No. 03-7985, 397 F.3d 133 (2nd Cir. 2005)

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Although detectives' interrogation of an eleven-year-old girl, which produced her confession of involvement in the death of a two year old, was custodial and produced an involuntary statement in violation of her Fifth Amendment rights, the questioning detectives could not be held liable for her subsequent prosecution and conviction, later overturned. A decision by the trial judge to admit her confession was superseding cause of her damages.

     An eleven-year-old girl was investigated and questioned for her possible involvement in the death of a two-year-old girl. She and her siblings lived with her grandparents who were her adoptive parents. The grandparents also provided daycare in their home for several other children, including the two-year-old.

     The two year old was ill one day and was put to bed after she vomited on the lunch table. Late in the afternoon, the eleven year old allegedly came in from outside and went to the back of the house, near the bedroom where the two year old was sleeping. One of her grandparents then allegedly heard "thumping noises." Later that afternoon, when the two year old was taken to the hospital because she continued to be ill, she was pronounced dead.

     An autopsy indicated that the child's death was a homicide, and that she had suffered a severe liver injury caused by a blunt blow to the abdomen, which had broken four of her ribs and split her liver into two pieces. There were thirty other bruises to her head, ear, forehead, back, shoulder, elbow, chest and the left side of her torso. After the eleven year old was removed to a private shelter for children which contracts with the state to provide foster care, she became a suspect in the child's death.

       Two detectives and a child welfare official were asked to question the child. The detectives consulted with a prosecutor about how to interrogate her. While the child had been at the foster care home, none of the officials believed that she was in the custody of the state, and this, in their minds, removed the need for them to take her before a magistrate, as required by Texas state law for children in state custody. They gave her a Miranda warning, but did not notify her parents or attorney of the questioning.

     After two hours of questioning, the detectives elicited a confession that she had dropped the two year old and kicked her. She was charged with capital murder and injury to a child, and was convicted by a jury of negligent homicide and injury to a child after a juvenile court ruled her confession admissible. A new trial was granted and her confession was again admitted, after which she was convicted of injury to a child, and sentenced to 25 years in the custody of the Texas Youth Commission.

     The second conviction was later overturned by an intermediate Texas appeals court that ruled that the eleven-year-old had been in the custody of the state at the foster home, so that law enforcement authorities had violated state law by not taking her before a magistrate prior to interrogating her, and that her confession was therefore inadmissible.

     The girl then sued the detectives and a number of others for alleged violations of her Fifth Amendment right against self-incrimination and for alleged state law civil conspiracy. The defendants appealed from the denial of their motions for qualified immunity on the Fifth Amendment claims and for official immunity under state law.

     The trial court held, the appeals court summarized, that:

under these narrow circumstances ---- an eleven-year-old child is removed from her home, housed at a private shelter by the State for three days, interrogated there for hours by two seasoned investigators to the point of confession without an adult or advocate present to represent her interests, and is convicted largely on the strength of that confession ---- the child may, after the conviction is overturned on the grounds that the confession was inadmissible, sue under § 1983 for damages she suffered as a result of the violation of her constitutional rights.

     The appeals court held, however, that the plaintiff could not demonstrate that the defendants acted unreasonably, and that their actions did not proximately cause the damages she suffered, so she could not maintain a federal civil rights lawsuit against them for violation of her Fifth Amendment rights.

     The appeals court agreed that the child's questioning constituted custodial interrogation under the circumstances in light of all the factors, including her age. It also found that every factor examined weighed against the conclusion that the child's statement was voluntary. She could not be held to have knowingly and voluntarily waived her right to be represented by counsel and to remain silent, the court found. Additionally, the officers told her that they had already talked to everyone in her family, that everyone "knew" what happened, and that she could "help her family" only by telling the truth. The court concluded that her statement was involuntary and that its admission at trial violated her Fifth Amendment right against self-incrimination.

     Despite that, the appeals court noted that the state judge who presided over her juvenile trial had evidently heard or at least was not prevented from hearing, all of the relevant facts surrounding her interrogation before deciding to admit her confession into evidence, and still concluded that she was not in custody for purposes of Miranda or Texas law governing the interrogation of minors, and ruled that her statement to the police was voluntary and admissible.

     This admission of the confession by the juvenile judge, the appeals court found, constituted a "superseding cause" of the plaintiff's injury, relieving the defendants of liability under 42 U.S.C. Sec. 1983 for violation of her Fifth Amendment rights. This ruling on causation eliminated the necessity of considering whether the constitutional right violated was clearly established at the time, and whether a reasonable official should have known that he was violating that right. The defendants were therefore entitled to qualified immunity on the federal claims.

     The court found that immunity also barred the plaintiff's civil conspiracy claim under Texas state law, under a similar analysis. The officers did not conceal from the Texas trial court any of the circumstances surrounding the interrogation and, therefore, did not cause the violation of her rights, so they acted "in good faith" for purposes of Texas official immunity.

     Murray v. Earle, No. 03-51379, 2005 U.S. App. Lexis 5220 (5th Cir. 2005).

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Parents of son who died from a gunshot wound to his head failed to show that city and county law enforcement failed to conduct a proper investigation which resulted in their inability to obtain damages against persons they believed killed their son. No deliberate indifference was shown to their right to access the courts, and every independent investigation reached the same conclusion, that the son had shot himself.

     A married couple brought a federal civil rights lawsuit against a city, a county, and various city and county officials after the death of their son who died after suffering a gunshot wound to his head. A police investigation concluded that he was playing Russian Roulette and suffered a self-inflicted wound. The parents argued that someone else shot their son, and that the failure to properly investigate the circumstances of the death impeded their ability to bring a wrongful death claim against the assailant, denying them their constitutional right of access to the courts.

     A federal appeals court upheld summary judgment for the defendants.

      A police evidence technician investigated the scene of the shooting, recovering the gun and fingerprinting it, collecting live ammunition rounds, taking a blood sample from the floor, and finding a bullet fragment on the floor, as well as taking photographs of the area.

     Officers conducted interviews with two individuals who were present at the time of the death, and performed observations of the decedent's hands and gunshot wounds. It was determined that an autopsy was unnecessary and the medical examiner's office and the police concluded that the shooting was accidental.

     The parents disagreed and believed that their son may have been the victim of a homicide. They indicated that they had heard "third- or fourth-hand" that he was the target of a "gang hit." Law enforcement followed up on these concerns for several years, including by sending case files to a forensics expert, requesting that the FBI test the gun, having a county medical examiner independently review the case, asking the county prosecutor to determine if any criminal charges were appropriate and conducting further interviews. None of this altered the conclusion that the son had accidentally shot himself.

     The parents brought a wrongful death lawsuit in Minnesota state court claiming that the two persons present when their son was shot, and unknown third persons killed him. The jury returned a special verdict indicating that the son shot himself. When this result was affirmed on appeal, the parents brought their federal civil rights lawsuit.

     They claimed that law enforcement officials denied them meaningful access to the courts by failing to properly investigate their son's death, which "precluded and interfered with" their constitutionally protected right to bring a wrongful death action over their son's death.

     Upholding summary judgment for the defendants, the appeals court found nothing to indicate that the defendants intentionally conspired to keep the plaintiffs out of court. The court also found no evidence that the defendants' investigation showed deliberate indifference, and noted that other independent parties arrived at the same conclusion as the defendants.

     Eight years ago, the court concluded, the plaintiffs' son died from a gunshot wound to his head. All investigations counted by a city, two county's, another county's medical examiner, the FBI, and an independent forensic analyst supported the conclusion that he accidentally killed himself. Under these circumstances, none of the parent's' allegations about alleged deficiencies in the investigation showed deliberate indifference.

     Scheeler v. City of St. Cloud, No. 04-2800, 2005 U.S. App. Lexis 5145(8th Cir. 2005).

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Trial court properly set aside jury's award of $1 in nominal damages to a man bit twice by a police dog during an attempt to apprehend him. His persistent insistence during discovery that he was not the suspect that the police were seeking at the time, until he admitted during cross-examination at trial that he was, constituted perjury for which the denial of the jury's award was a proper sanction.

     After a 911 call reporting that a man with a particular description had just broken into an apartment near where a car had been abandoned, officers spotted a man matching the description running from the location of the break-in. An officer began driving down a street, where he spotted the suspect running in the eastbound lane of traffic. He stopped, exited his car with his police service dog, and gave a loud warning. When the suspect did not stop, the officer released his police service dog, who bit the suspect on the left ankle. The officer approached him with his gun drawn and ordered him to put his hands in the air.

     While the suspect alleged that he then complied, he claimed that the officer directed the dog to bite him a second time. The dog allegedly maintained his hold on the suspect until he complied with directions to lay prone on the ground and was taken into custody.

     The suspect then sued the officer and city for alleged excessive use of force in making his arrest. During the discovery process, in his sworn answers to interrogatories and in his sworn deposition testimony, the plaintiff consistently maintained that he was not the suspect police had been chasing at the time, but had merely been walking to a friend's house after an evening playing bingo when he encountered the officer. When he testified at trial, however, he admitted on cross-examination that he had, in fact, been the suspect the police were seeking.

     The jury returned a verdict in favor of the plaintiff on his claim of excessive force, but only awarded him $1 in nominal damages. The officer argued that the jury award should be set aside and the case dismissed as a sanction for the plaintiff's admitted perjury, and the trial court did so. It did not grant a new trial, but ruled that the plaintiff's perjury should bar him from any right to recover in the case.

     The appeals court upheld this result. It noted that forcing a defendant entitled to invoke the defense of qualified immunity to proceed to trial "on the basis of a lie," undermined the entire concept of qualified immunity, since it is an immunity from suit rather than a mere defense to liability.

     Since the reasonableness of force depends on whether the force used was objectively reasonable under the totality of the circumstances, including the severity of the crime and whether the suspect posed a threat to the officers, the plaintiff's lies were relevant to the determination of whether the force used was reasonable, and material to the "determination of the central issue in the case."

     The appeals court also rejected the plaintiff's argument that he had been "punished already" by the jury's failure to award him more than nominal damages.

     Chavez v. City of Albuquerque, No. 03-2195, 2005 U.S. App. Lexis 4969 (10th Cir. 2005).

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Federal appeals court upholds constitutionality of Detroit anti-vice operation involving the use of undercover female police officers posing as prostitutes in high-crime areas to make arrests for soliciting prostitution and seize vehicles driven or utilized by males, imposing forfeiture if applicable fees and fines were not subsequently paid.

     Eleven Michigan residents sued the Detroit Chief of Police, the City of Detroit, the county prosecutor and a number of police officers, claiming that in the course of "ostensibly" enforcing the state's vice laws, the defendants had unconstitutionally applied state nuisance abatement laws against them by impounding, and threatening to effect the civil forfeiture of their automobiles, absent payment of civil fines and fees.

     The trial court granted summary judgment for the defendants, and a federal appeals court upheld this result.

     The litigation arose from a city vice-crime law enforcement effort called "Operation Push-Off" involving "nuisance abatement" impounding of cars, and the subsequent initiation of civil forfeiture proceedings against those vehicles, which were ultimately resolved by either the restoration of the vehicle to its owner if they paid assessed civil fines and fees totaling around $950 in settlement of the nuisance abatement action, the forfeiture of the auto title to the state, following the owner's failure to pay the standard "settlement" fees or to successfully oppose "nuisance abatement" forfeiture at a "show-cause" hearing, or the release of the car to its owner without payment of penalties, following the owner's successful opposition to the legal or factual basis for forfeiture at the "show-cause" hearing.

     In implementing the operation, the police department utilized undercover plainclothes female police officers posing as prostitutes to interact with men in cars within designated high-crime areas frequented by streetwalkers and their patrons. When solicitation of prostitution or similar lewdness offenses by a male inside or near a vehicle occurred, the vehicle was impounded in connection with the offender's arrest. The arrestee and any other person in his car, was furnished with a standard formal notice of the vehicle nuisance abatement and civil forfeiture procedures.

     The plaintiffs' lawsuit claimed that the defendants were motivated by a desire to enrich the city rather than to enforce the criminal law, and had allegedly conspired to deprive citizens, in the absence of any pre-impoundment hearing, of property, either vehicles or cash, and/or liberty (the freedom to drive their cars) irrespective of their actual guilt or innocence of the offenses of soliciting prostitution or other morals offenses. As part of this alleged scheme, the defendants allegedly had a standard practice of dismissing both the misdemeanor criminal sex offense prosecution and the forfeiture nuisance abatement action if the car owner paid the civil fines and fees imposed for the release of the impounded vehicle.

     Each of the plaintiffs had a vehicle they owned impounded by the city's police in the course of the anti-vice "sting" operation.

     The appeals court noted that a federal civil rights claim for deprivation of property is only available if there are inadequate available state law remedies. In the immediate case, each of the plaintiffs were allowed an opportunity to request a prompt post-impoundment "show-cause" hearing to challenge both the temporary seizure of their vehicle and the threatened permanent forfeiture, and if that challenge was successful, as it was in some instances, they received the immediate return of their vehicle without substantial monetary penalties.

     The argument that some of the persons subjected to the arrests and forfeitures may have been innocent of the underlying vice offenses did not alter the result, as both the criminal arrests and the related civil nuisance abatement property seizures required merely probable cause, not the certainty of guilt beyond a reasonable doubt, to be legally justified.

     Indeed, the court found, by alleging that the law enforcement officers had "entrapped" the arrestees, the plaintiffs had conceded that the challenged arrests were supported by probable cause.

    The appeals court also rejected the argument, put forward by two plaintiffs, that the impoundment of their vehicles was unlawful because the sex offenses charged against them occurred outside of their cars. State law, the court noted, allows the nuisance abatement of vehicles as being used for the purpose of lewdness, assignation or prostitution if they have been used to transport the criminal perpetrators to the sites of their crimes.

     The appeals court also found that the post-impoundment procedures made available were constitutionally adequate, providing reasonable notice and a fair post-impoundment-but-pre-forfeiture opportunity to contest the ultimate forfeiture.

     The appeals court rejected the argument that the fines and fees were "grossly disproportionate" to the gravity of the alleged offenses.

Solicitation of prostitution, lewdness, public indecency, and other sexual vice crimes of the types material to the subject litigation may impact adversely the health, safety, welfare, and morals of the affected neighborhood and the larger community. Those lascivious and irresponsible activities offend law-abiding citizens; degrade the moral fiber of their participants as well as society; rend bonds of marriage and family; transmit dreaded social diseases including AIDS, syphilis, and other often-incurable degenerative and/or deadly venereal diseases; attract and facilitate the abuse of, and trafficking in, dangerous controlled substances; and incite other violent felonies including common street crimes.

Consequently, those activities cannot be tolerated in a civilized and well-regulated commonwealth. The civil fines and fees alleged herein, which did not exceed approximately $ 2,000 in any single instance, manifestly were not grossly disproportionate to the gravity of the deterred and/or punished offenses. .

     Ross v. Duggan , No. 02-1987, 2004 U.S. App. Lexis 28049 (6th Cir. 2004), recommended for full publication, 2005.

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Alleged failure of police and prosecutors to protect 15-year-old girl from being killed on orders from murderer she agreed to testify against could not be a basis for liability, even if they made promises of protection they did not keep. Witness was not in custody, and the defendants' actions did not create the danger to her.

     A 15-year-old girl was shot dead in front of her house in Rhode Island to stop her from testifying at a murder trial that she saw the defendant in the trial fleeing from the scene of the murder of another man. The defendant, who allegedly ordered her killing, was convicted of her murder and sentenced to life plus twenty years. The girl's mother filed a federal civil rights lawsuit claiming that the police violated her constitutional substantive due process right to life by failing, after promising to do so, to protect her from the danger posed by the murderer if she agreed to testify against him.

     In addition to claims against individuals involved in the case, the complaint asserted that the city had a policy and practice of not protecting endangered witnesses who were given assurance of protection.

     Upholding the dismissal of all these claims, a federal appeals court stated that it would be "inhumane" not to feel a sense of outrage over the girl's death or a "sense of deep sympathy" for her mother, who has lost her daughter.

But our question is one of federal law, not one of sympathy. The Supreme Court has said that only in very rare situations will the state's failure to protect someone amount to a constitutional violation, even if the state's conduct is grossly negligent. The Court has cautioned that "the doctrine of judicial self-restraint requires courts to exercise the utmost care whenever they are asked to break new ground in this field." Collins v. City of Harker Heights, 503 U.S. 115 (1992). Based on the facts alleged in the complaint, we conclude that this is not one of those rare cases.

     In this case, the murdered girl was not in the state's custody. To assert a claim that the individual defendants' actions had "created" the danger to the decedent in violation of due process, a possible exception to the general rule that government does not have a constitutional duty to protect particular people, the governmental actions must "shock the conscience" of the court, the appeals court stated.

     The plaintiff dropped the claim, on appeal, that there was a special relationship between the defendants and her daughter that imposed a duty to provide protection. What was left was an argument that the officers, prosecutor, and other defendants "created" the danger to the girl by their actions of identifying and securing her as a witness, providing her with false promises of protection on which she relied, compelling her to act in the capacity of a witness, and issuing a subpoena to her to confront the killer in open court.

     The appeals court noted that taking steps to identify the girl as a witness, and taking her statement in the course of investigating a murder compelled her to testify, and may well have "enhanced" the danger to her, but both are "necessary law enforcement tools, and cannot be the basis to impose constitutional liability on the state."

     Similarly, issuing a subpoena to testify may have increased her risk, but this did not constitute a "state created danger." Every witness involved in a criminal investigation who is issued a subpoena to testify faces "some risk," and the use of such subpoenas is a "vital prosecutorial tool," which cannot become the vehicle for a constitutional claim for liability.

     Finally, the court found, while false promises of protection, if given, and relied on, may have induced the girl into a false sense of security rendering her more vulnerable to the danger posed by the murderer and his confederates, "merely rendering a person more vulnerable to risk does not create a constitutional duty to protect." The appeals court found that the claims asserted in the complaint were ultimately "indistinguishable" from those in DeShaney v. Winnebago Cty. Soc. Servs. Dept., No. 87-154, 489 U.S. 189 (1989), in which the U.S. Supreme Court found that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. In DeShaney, the state was allegedly aware of the risk, expressed promises of help, and then failed to protect a young boy from his abusive father, but the Court found no liability.

     In this case, the defendants' alleged promises, whether "false or merely unkept," did not deprive the girl of the liberty to act on her own behalf or force her, against her will, to become dependent on them. The defendants also did not take away her power to decide whether or not to continue to agree to testify. "Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger," the court argued, cannot be used as an "end run around DeShaney's core holding."

     Once the plaintiff failed to establish that any constitutional deprivation occurred at all, the claims against the city for alleged policies causing such deprivations also must necessarily fail, the court concluded.

     Rivera v. State of Rhode Island, No. 04-1568, 2005 U.S. App. Lexis 4626 (1st Cir. 2005).

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U.S. Supreme Court: Police officers did not act unreasonably in detaining an occupant of a home in handcuffs during the execution of a search warrant, and they also did not violate her rights by questioning her, during the detention, concerning her immigration status.

      The U.S. Supreme Court has ruled that police officers executing a search warrant for a residence did not act unreasonably by placing an occupant of the home in handcuffs during the search, and also did not violate her rights by questioning her about her immigration status, which was unrelated to the purpose of the search.

     In the case, a woman who found herself detained by SWAT team members at gunpoint when she awoke was awarded $60,000 against two officers involved in the search of her family home, pursuant to a warrant. She was allegedly detained in handcuffs and questioned for almost three hours in a garage where she was taken barefoot in the rain during the search of the residence.

     Because she appeared to be of Hispanic or Latino ethnic origin, she was also questioned about her immigration status or citizenship and her purse was inspected for immigration documents, despite this having nothing to do with the purpose of the search authorized by the search warrant. Indeed, the detainee was not suspected of any crime, and the search warrant concerned other residents of the home, including suspected gang members, one of whom was a suspect in a shooting.

     A federal appeals court previously found that the officers exceeded their authority to detain occupants of the residence for a limited time during the authorized search, and that the questioning on immigration status was improper. The appeals court also found that the officers were not entitled to qualified immunity. Mena v. Simi Valley, Calif., 332 F.3d 1255 (9th Cir. 2003),

    In vacating the appeals court decision, the Supreme Court ruled that the plaintiff's detention in handcuffs for the length of the search was not a Fourth Amendment violation, but was consistent with the ruling in Michigan v. Summers, No. 79-1794, 452 U. S. 692 (1981) (officers executing a search warrant for contraband have the authority "to detain the occupants of the premises while a proper search is conducted.").

     A substantial justification for detaining an occupant during such a search is the goal of minimizing the risk of harm to the officers, and an officer's authority to detain incident to such a search does not depend on the "quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure," but rather is "categorical," and includes the authority to use reasonable force to carry out the detention.

     In the immediate case, the use of handcuffs to detain the plaintiff was reasonable for the purpose of minimizing the risk of harm to both occupants and officers. The governmental interest in minimizing such risks was at its "maximum," the Court found, in cases such as this where the search warrant authorized a search for weapons and it was known that a wanted gang member lived on the premises.

     Further, the officers' actions were all the more reasonable because they needed to detain multiple occupants, making the use of handcuffs effective. While the length of a detention can have an impact on the balance of interests, in this case the burden of the 2 to 3 hour detention in handcuffs did not outweigh the government's safety interests during the search.

     The Supreme Court also found that the officers did not violate the plaintiff's Fourth Amendment rights by questioning her about her immigration status during the detention. The appeals court incorrectly assumed that the officers had to have independent reasonable suspicion to question her about this subject.

     The Supreme Court noted that it had previously repeatedly held that "mere police questioning does not constitute a seizure." As the plaintiff's initial detention was reasonable and there was no finding that the detention was extended in length by the questioning, there was no additional seizure for Fourth Amendment purposes, and no further justification was needed to inquire about the plaintiff's immigration status.

     Muehler v. Mena, #03-1423, 125 S. Ct. 1465 (2005).

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Officers did not act unreasonably by entering an apartment without knocking, searching the premises, and attempting to awaken a naked man found on a bed inside when there were signs of what appeared to be a possible burglary, including a broken window.

     A Marion County Indiana Sheriff's deputy shot and killed a man early one morning after being summoned to the man's apartment after neighbors saw the man breaking into the apartment. The resident, who had been drinking, had given his keys to a friend and took a taxicab to his home where he forced entry into his own apartment. The neighbors, who evidently did not recognize him called 911 but hung up before completing the call.

     The deputy, who was working for the local police department that evening, volunteered to respond to the incomplete 911 call, and was told by a neighbor that he had seen a man breaking a window who claimed to be the occupant of the apartment, and that the man had been "belligerent."

     The deputy observed the broken window and an ice chest pushed up against the front door. He called for backup, and another deputy arrived. They entered the apartment with guns drawn and tactical lights attached to the barrels of their guns to illuminate the dark residence. Neither of the deputies knocked, but one of them stated that he announced that he was from the sheriff's office and that he urged the man inside to "come out now. Show yourself."

     They found the resident naked and uncovered on his bed, face up, with his eyes closed. At one point, the officers claimed, he jumped up from the bed and lunged at one of the deputies, wielding a 15-inch bowie knife. The man allegedly continued to advance toward a deputy with the knife, ignoring orders to drop the knife. The deputy then fired four shots at him, hitting him three times, and killing him.

     A federal civil rights lawsuit by the decedent's family claimed that the deputies violated his rights by unlawfully searching the apartment, unlawfully seizing him, and using excessive force against him by shooting him.

     The trial court declined to grant summary judgment to the plaintiffs on the basis that a jury could find that the seizure was "not unreasonable' under the circumstances known to the officers at the time. The plaintiffs reached a settlement with the non-shooting deputy, and the trial court granted in part (on a due process claim) and denied in part (on search and seizure and excessive force claims) a motion for summary judgment made by the shooting deputy.

     The trial court found that exigent circumstances justified the officers' warrantless entry into the apartment, but that the way in which the officers entered without knocking may have violated the constitution, and that there was a question of fact as to whether, once inside the apartment, the shooting officer behaved in an objectively unreasonable manner by searching the apartment and allegedly not announcing his identity. The trial court also denied summary judgment on the excessive force claim because it could not determine as a matter of law that the decedent had posed a threat of death or serious bodily injury to the deputy.

     The appeals court found that the facts in the case, even in the light most favorable to the plaintiffs, did not allege a constitutional violation with respect to the entry into the apartment, and the manner in which it was carried out. The deputy could reasonably have believed that a burglary was occurring and that people inside the apartment might be in danger. The entry was justified by exigent circumstances, therefore. In this case, the appeals court further stated, the circumstances known to the officer provided the officers with a reasonable basis to conclude that knocking and announcing themselves would have been dangerous.

     The search that followed, the court characterized as a "protective sweep," justified by the officers' reasonable concern for their safety. Even after the officers saw the resident lying on the bed, they could not have been sure that they would not be surprised by another person until they had conducted such a search.

     Even if the deputies' conduct towards the resident on entering his bedroom could be considered a seizure, the appeals court found, it was reasonable as a matter of law. They did not then know his identity. Attempting to wake him by nudging him could "hardly" be called intrusive, as it was aimed at determining who he was and why he was present.

     The sole remaining claim concerns whether the use of deadly force was justified under the circumstances, which remains pending.

     Leaf v. Shelnutt, No. 04-1318, 400 F.3d 1070 (7th Cir. 2005).

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Search warrant used to search warehouse for machine guns was defective in failing to specify items to be searched for and seized, so federal agents were not entitled to qualified immunity on civil rights lawsuit by operator of warehouse and owner of stored firearms. Warrant's reference to sealed affidavit in court file which contained those details and did not accompany warrant during search was insufficient to correct defect. Federal appeals court allows civil rights lawsuit to go forward despite upheld criminal conviction of importer of machine guns.

      A company which operates a warehouse and a man who owned property which was stored there sued fifteen unknown agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and six named ATF agents for alleged violation of their Fourth Amendment rights in searching the warehouse pursuant to a search warrant and seizing hundreds of firearms and accessories belonging to the man.

     The trial court found that the defendant agents were entitled to qualified immunity despite the alleged lack of particularity in the search warrant used, and that the facts did not show a violation of any clearly established constitutional rights. It also ruled that the lawsuit was barred by Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) because an award of damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), would necessarily imply that the conviction of the owner of the firearms for an offense related to the importation of the guns was invalid. Under Heck, a federal civil rights claim for damages is barred if success would necessarily imply the invalidity of a criminal conviction which has not been set aside.

     The search warrant was obtained by an ATF agent who claimed in his affidavit that the man storing weapons at the warehouse, a licensed importer of firearms, had conspired with others to import law enforcement restricted machine guns for resale, and that these machine guns were being stored at the warehouse, which was a customs bonded facility.

     Another suspect, a previously convicted felon, had allegedly assumed a false identity to operated a federally licensed firearms business and an ATF investigation resulted in him being apprehended with over 700 machine guns and firearms, and documents suggesting a relationship between himself and the subject of the search warrant.

     The agent further explained in his affidavit that the subject of the warrant had imported about 500 machine guns which were ostensibly dealer samples for sale to law enforcement, which is lawful, but had removed at least 49 of them from the bonded warehouse after submitting letters purportedly from the Farber, Missouri police chief requesting a demonstration of the machine guns. That police chief, however, allegedly told the agent that he had no intention of receiving a machine gun demonstration and admitted that he had "fraudulently composed the letters with the expectation of remuneration."

     The search warrant authorized a search of the warehouse and as to the property to be searched for or seized, referred to the affidavit. When the ATF agents arrived at the warehouse with the warrant, the affidavit referenced in it was not attached. An ATF agent told the manager of the warehouse that the affidavit was part of the court records, which were sealed. Once in the basement, which was identified by the manager as the custom bonded warehouse portion of the building, the ATF agents seized 372 firearms and 12 wooden crates containing firearms parts.

     The importer of the weapons was indicted for conspiracy to import machine guns by making knowingly false entries on applications and other records. The trial court in the criminal proceeding denied a motion to suppress the guns and crates, finding that the defendant had not demonstrated that the statements in the affidavit were false, and found that the facts in the affidavit were sufficient to support probable cause. The defendant was found guilty, and the guns and crates were ordered forfeited. The conviction was upheld on appeal, as well as the forfeiture order.

     The civil rights lawsuit by the gun importer and warehouse operator followed.

     The federal appeals court found that it was clear that the warrant that the ATF agent procured for the search of the warehouse was "plainly invalid" in violation of the Fourth Amendment's particularity requirement, because it provided no description of the type of evidence sought and did not describe the items to be seized, referring only to the building where the items allegedly could be found. The fact that the agent's affidavit and application for the warrant adequately described the things to be seized (425 machine guns) did not alter the result, the appeals court stated because particularity is required in the warrant, not in the supporting documents.

     The warrant used "appropriate words of incorporation," but the court noted that the supporting documents that the warrant purported to incorporate did not accompany the warrant. Because the agent leading the raid on the warehouse did not possess a warrant particularly describing the things he intended to seize, the court held, proceeding with the search was "clearly unreasonable."

     The appeals court also ruled that the defendants were not entitled to qualified immunity for conducting a search based on the defective warrant. In particular because the procuring ATF agent prepared the invalid warrant, he could not argue that he "reasonably relied" on the magistrate judge's assurance that it was sufficiently particular and therefore valid.

     The appeals court relied, in part, on the U.S. Supreme Court's ruling in Groh v. Ramirez, No. 02-811, 540 U.S. 551 (2004), reported in 2004 LR May, in which the warrant neither described the items to be seized, nor cross-referenced a document that described those items, so that the ATF law enforcement agents in that case were found to have had no basis to believe that the warrant was valid. In Groh, the Court rejected the argument that the ATF agents were entitled to qualified immunity, finding that no reasonable officer could believe that a warrant which failed to comply with the particularity requirement was valid.

     As for the Heck v. Humphrey issue, the appeals court stated that "a hypothetical judgment in this litigation that the search of the warehouse and the seizure of the machine guns was unconstitutional would not "necessarily imply" the invalidity of the criminal conviction for conspiracy to illegally import machine guns. The trial court in the criminal case denied the motion to suppress the guns, but indicated that it did not necessarily believe that the machine guns were even "relevant" to the case, and on appeal, the appeals court in the criminal case stated that even if the weapons should have been suppressed, their admission was "harmless error" because the documents and testimony proved the government's case.

      The gun importer's Bivens claim was barred by Heck, however, the appeals court held, to the extent he sought damages for the lost economic value of the weapons, since they were forfeited pursuant to his criminal conviction. An award of such damages would imply the invalidity of the forfeiture order. But he could seek to recover damages for his injured reputation and mental anguish, as well as punitive damages.

     The appeals court further found that nothing in Heck "contemplates extending the bar against civil damages actions" to third parties like the warehouse operator, who was not convicted of any criminal conduct.

     A strong dissent by one judge on the three-judge panel argued that the ATF agents were entitled to qualified immunity, and pointed to prior case law which had upheld the practice of a search warrant making reference to a sealed affidavit.

     Baranski v. Unknown ATF Agents, No. 03-5582, 401 F.3d 419 (6th Cir. 2005).

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California officers who presented a car owner with the choice of being arrested on the basis of a "repo man's" citizen complaint or agreeing to allow him to repossess the vehicle did not violate her Fourth Amendment or due process rights. They were faced with conflicting versions of who had last had possession of the vehicle and were trying to peacefully resolve a late-night confrontation.

     Two California residents sued two police officers and the city which employed them for allegedly violating their Fourth and Fourteenth Amendment rights during a vehicle repossession dispute. They claimed that the officers unlawfully intervened in a vehicle repossession. The trial court denied the officers qualified immunity, after they asserted that they did not violate the plaintiffs' constitutional rights, and that, in the alternative, those rights were not clearly established.

     A federal appeals court reversed this result. Under California law, a secured creditor of property purchased under an installment contract can repossess the vehicle or other property "without judicial process" if it can do so without "breach of the peace." Prior caselaw, however, Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir. 1981), indicates that police officers who assist a self-help repossessor may be liable for federal civil rights violations, either when the officer actually "takes" the property, or assists in the repossession over the objection of a debtor or "so intimidates a debtor as to cause him to refrain from exercising his legal right to resist a repossession.

     Something more than merely standing by in case of trouble, however, the court noted, is insufficient to convert a repossession into state action, but when officers actively intervene and aid in the repossession, it is state action.

     One of the plaintiffs had financed a vehicle through a county employees credit union, and when she became delinquent in her car payments, the credit union hired a company which in turned hired an individual to repossess the car. The "repo man" arrived at the debtor's home at three o'clock in the morning, knocking on the door and demanding the keys to the car. The debtor argued that there was already a valid arrangement for payment of the debt, and an argument ensued. The debtor told the repo man that he was trespassing, and asked that he hold off until she could call her insurance company and the credit union to resolve the problem, but he refused to wait.

     The debtor attempted to get in the car and drive away, but the repo man blocked her efforts to close the door, and allegedly attacked her, trying to remove her forcefully from the car. A fight ensued, including participation by the debtor's mother. The repo man called 911 while a companion of his blocked the car with another vehicle, and the debtor allegedly screamed for her father to get his shotgun. Seven police officers arrived on the scene.

     Both the repo man and the debtor showed one of the officers papers purporting to establish their right to the car, and each told their own conflicting version of the fight. Both sides indicated that they wanted to effect a citizen's arrest against the other for assaulting them.

     The officer, having satisfied herself that the repo man had a right to take the car, asked him if there was any way to resolve the situation peacefully, and he replied that he would not press charges if the debtor and her mother would let him take the car.

     The officer allegedly told the plaintiffs that either they were going to let the repossession occur, "or we are going to arrest you." Another officer was summoned and confirmed that giving the car to the repo man was the plaintiffs' only option to avoid arrest. Feeling that they had "no choice," they did so.

     The trial court found that, while there were substantial disputes about the details of what had happened, viewing the facts in the light most favorable to the plaintiffs, there was a breach of the peace, and the repo man therefore had no right to take the car. It therefore held that the officers were not entitled to summary judgment on the basis of qualified immunity, as the law concerning repossession of cars was well established.

     The federal appeals court, however, found that, under the facts of the case, the officers did not violate the plaintiffs rights, and that, as they argued, if they did, they were entitled to qualified immunity. In this case, the officers, rather than coming to the scene initially to guarantee that the plaintiffs did not protest the repossession, were "summoned to a scene not of their making." When they arrived, it was clear that there was a "breach of the peace" in progress.

     The officers, the appeals court found, heard conflicting stories about whether the repo man had taken effective possession of the car prior to the breach of the peace commencing. He claimed to have used a tool to open the car door, gaining possession of the vehicle, and then to have knocked on the debtor's door to ask her to remove her other property from the car. The debtor, on the other hand, claimed that it was she who had been in the possession of the vehicle, and that the repo man had assaulted her to take it away from her.

     The officers, therefore, were "caught" between the conflicting provisions of California state law on repossessions--one stating that the repossessor can take back the property if he can do so without breaching the peace, and a second that says the repossession is complete when the repossessor gets access to the car.

Even if the officers understood how those two sections are supposed to work together, the officers had little means for resolving the dispute over possession of the car at the scene.

     Both the repo man and the debtor wanted to then make a citizen's arrest of the other, which they could do for offenses committed in their presence. Under California law, the citizen may delegate taking the arrestee into custody to an officer, and an officer who makes that arrest pursuant to a citizen's complaint cannot be liable for false arrest or imprisonment. He or she does not have to make the arrest, but if it turns out that there were grounds for the complaint, and the officer fails to take the suspect into custody, the officer may be subject to fines or imprisonment under Sec. 142(a) of the California Penal Code.

     Accordingly, once the repo man told the officers that he wanted to press charges, they could decline to arrest the debtor only if they determined that there was "no ground" for the arrest, but their risk of error for failure to make the arrest was criminal fines and imprisonment. The officers were equally bound to arrest the repro man. By asking whether there could be any peaceful resolution, the officers were trying to "extricate" two persons out of a mutually difficult situation which was likely to result in both of them being arrested.

     The officers, the court found, "simply presented" to the debtor her "options," i.e., that she could assert her rights to the car, and the repo man would press charges, and the officers would have to arrest her, or that she could avoid arrest and fight the repo man and credit union at another time. "She could, of course, have pressed her own charges" against the repo man, but if he was being arrested, she would likely be arrested too.

     The appeals court reasoned that presenting the debtor with a choice between two "unpleasant consequences" did not violate her due process or Fourth Amendment rights.

     Even with a copy of the Harris case in their back pockets, the appeals court commented, the officers could not have known that they were violating the plaintiff's clearly established constitutional rights. They could not have determined at what point in the middle of "this messy repossession" they allegedly deprived the debtor of her property without due process of law. The debtor might have a right to be "unhappy," but the officers could not be faulted, the court concluded, for "attempting to settle this late-night confrontation peacefully." It would not be clear to a reasonable officer, the appeals court found, that their conduct was unlawful in the situation confronted.

     Meyers v. Redwood City, No. 03-15872, 400 F.3d 765 (9th Cir. 2005).

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Assault and Battery: Physical

     A police officer used reasonable force against a murder witness he was taking into protective custody when he placed his knee over the top of the witness's back and shoulder area while handcuffing him. The officer, at the time, had grounds to believe that the witness might pose a threat and did not have a description sufficient to distinguish the witness from the perpetrator. There were, however, genuine issues of material fact as to whether a second officer on the scene, who allegedly "pounced" on the center of the witness's back and injured him, used excessive force, precluding summary judgment for him. Davis v. Brouillette, No. 2:03-CV-175, 349 F. Supp. 2d 847 (D.Vt. 2004).

     Officers were entitled to qualified immunity on claims arising out of the amount of force they used in arresting a man during a civil disturbance, including allegedly using a takedown technique that was "too aggressive," when he refused to leave the area after being told several times to do so, and he resisted arrest, subsequently being convicted of resisting. Under the circumstances, it would not be clear to a reasonable officer that their conduct violated the arrestee's rights. Rosenberger v. Kootenai County Sheriff's Department, No. 29777, 103 P.3d 466 (Idaho 2004). [PDF]

Defamation

     Statements made by county attorney about a defendant in a press release and press conference after charges of murder against him were dropped were not protected by absolute immunity since they were not made incidental to the termination of the judicial proceeding. There were genuine issues as to whether or not the statements were opinion protected by the First Amendment, and whether the statements, stating that the former defendant had committed the murder, were made with actual malice. Federal trial court denies summary judgment to defendant county and county attorney in former defendant's libel and slander lawsuit under Iowa state law. Harrington v. Wilber, No. 4:03-CV-90616, 353 F. Supp. 2d 1033 (S.D. Iowa 2005).

Defenses: Absolute Immunity

     Assistant state's attorney was entitled to absolute prosecutorial immunity on civil rights claims asserted by arrestee arising out of his alleged false arrest and wrongful conviction for murder. The prosecutor's conduct in interviewing witnesses and the arrestee, reading the arrestee his Miranda rights, and approving the charges brought against him were all part of his job as a prosecutor in initiating and prosecuting the state's case against the accused. The arrestee failed to show that the prosecutor in any way acted beyond the scope of his authority or that he acted in a manner that was illegal, malicious, or intentional, rather than carried out for the purpose of furthering the state's interests. Hampton v. City of Chicago, No. 04C3456, 349 F. Supp. 2d 1075 (N.D. Ill. 2004).

Defenses: Duty to Defend

     City of St. Louis Board of Police Commissioners, and city police officers, sued for actions they took in their official capacities, were entitled to coverage under a Missouri State Legal Expense Fund for the cost of defending against the lawsuits, and for any judgments against them. Smith v. State of Missouri, No. SC 86050, 152 S.W.3d 275 (Mo. en banc 2005).

False Arrest/Imprisonment: No Warrant

     Officer had probable cause for arrest of suspect and was therefore entitled to qualified immunity when he conducted an objectively reasonable investigation, including asking the crime victim to personally identify the arrestee as the person who had purportedly threatened him with death. Alhofen v. Monteilh, No. 03-16960, 118 Fed. Appx. 170 (9th Cir. 2004).

     Officers could rely on statements from a man's former wife accusing him of having violated a court order of protection to place him under arrest, when there were no circumstances that created doubts about her veracity. Accordingly, the officers could not be held liable for false arrest, false imprisonment, or malicious prosecution. Coyle v. Coyle, No. 03CV 3286, 354 F. Supp. 2d 207 (E.D.N.Y. 2005).

     Undercover policewoman posing as a prostitute was not entitled to qualified immunity for arresting a man for patronizing a prostitute when there was a genuine issue of material fact as to whether they discussed sex and whether the arrestee had offered to pay money for sex, as well as whether she had made knowingly false statements in order to initiate a criminal proceeding against him. Brockington v. City of Philadelphia, No. Civ.A.03-5014, 354 F. Supp. 2d 563 (E.Pa. 2005).

     Man convicted of assaulting police officers could not pursue federal civil rights claims arising out of his arrest, prosecution and conviction when his conviction had not been set aside, based on the rule stated in Heck v. Humphrey, 512 U.S. 477 (1994). He could, however, pursue claims concerning the officers' alleged use of excessive force against him during the incident, if he amends the complaint to provide more specifics of those claims. Velez v. Hayes, No. 04 Civ. 1306, 346 F. Supp. 2d 557 (S.D.N.Y. 2004).

False Arrest/Imprisonment: Warrant

     Officers' arrest of suspect for alleged commission of three robberies in one evening, pursuant to an arrest warrant, was sufficiently supported by probable cause when there was both forensic evidence and witness statements implicating the arrestee in those crimes, and mere "conclusory" statements that the officers had coerced the witnesses into making their statements was insufficient to alter the result. Vines v. Callahan, No. CIV.A. 3-99-CV-1746, 352 F. Supp. 2d 211 (D. Conn. 2005).

Firearms Related: Intentional Use

     U.S. Border Patrol agent who shot and killed arrestee acted reasonably after the arrestee escaped by kicking the window out of her patrol car and escaped, subsequently biting her hand, pulling her hair, hitting her on the head, and attempted to take her gun away from her. Under these circumstances, and because the arrestee weighed approximately 60 pounds more than the agent, she reasonably feared that the arrestee might kill her or seriously injure her, justifying the use of deadly force. Mason v. United States, No. 03-55560, 120 Fed. Appx. 40 (9th Cir. 2005).

Firearms Related: Licenses, Regulations, and Other Issues

     City and police officers did not violate an arrestee's Second Amendment right to bear arms or his Fourteenth Amendment right to due process before being deprived of his property when his handgun was taken away during his arrest for various criminal charges, and was subsequently destroyed on court order. The court noted that the confiscation of one weapon did not infringe on the arrestee's right to lawfully acquire another weapon, and that the arrestee was provided with notice of the court hearing regarding the disposition of his pistol, and was in attendance at the court proceeding at which the order for its destruction was issued. Garcha v. City of Beacon, No. 04 CIV.5981, 351 F. Supp. 2d 213 (S.D.N.Y. 2005).

     While a convicted felon had no right to personally possess the firearms that were seized from his home, he did have some property rights in the weapons which were protected under state law. Accordingly, further proceedings were required on his claim that the county, by continuing to retain the weapons, and refusing to either restore the property to him through a designee or through the sale of the property and remittance of the proceeds to him violated the due process and eminent domain portions of the Maryland state constitution. Serio v. Baltimore County, No. 17, Sept. Term 2004, 863 A.2d 952 (Md. 2004). [PDF]

First Amendment

     Arrestee failed to satisfy her burden of presenting proof that officers "stalked" and "harassed" her in retaliation for having filed a previous lawsuit against police arising out of an arrest. The evidence she presented, which concerned unidentified police officers and vehicles, was insufficient, as it did not alleged adverse actions by particular officers or show that her exercise of her First Amendment rights were "chilled." Marczeski v. Gavitt, No. 3:02 CV 894, 354 F. Supp. 2d 190 (D. Conn. 2005).

Freedom of Information

     Citizen who was initially improperly denied release of information concerning an investigation of alleged harassment by a sheriff's deputy was also entitled to an award of costs, attorneys' fees, and punitive damages of $500, as well as an order requiring the full release of a redacted memorandum supplied to him by the sheriff. A memo from one non-attorney to another non-attorney within the sheriff's department giving instructions regarding a case file was not covered by attorney-client privilege and therefore was subject to full disclosure under a Michigan freedom of information act. Krug v. Ingham County Sheriff's Office, No. 250111, 691 N.W.2d 50 (Mich. App. 2004). [PDF]

Homeless Persons

     Homeless persons were entitled to preliminary injunction against alleged police "harassment" aimed at allegedly removing them from the downtown area of St. Louis, Missouri. Activities enjoined include directing or allowing the removal of homeless persons or homeless-appearing persons from public areas "where such citizens have a lawful right to be" without probable cause to believe that a crime has been or is being committed, or a need to clear such public areas for reasons of "security or public safety." Johnson v. Board of Police Commissioners, No. 4:04 CV 01266, 351 F. Supp. 2d 929 (E.D. Mo. 2004).

Native American Police Officers & Agencies

     Non-Indian domestic violence suspect could be detained by tribal police officers while he was on a reservation, and the officers also had the authority to search his vehicle. U.S. v. Terry, No. 04-2595, 400 F.3d 575 (8th Cir. 2005). [PDF]

Negligence: Vehicle Related

     Neither deputy nor sheriff's office was liable for damages motorist suffered when the deputy's vehicle entered an intersection against a red light during his response to a domestic violence call, even though the deputy had not activated his emergency lights and siren. The deputy had mistakenly believed that the light had changed to green when he proceeded and he was only driving 5 to 7 miles per hour at the time. The deputy was entitled to sovereign immunity from ordinary negligence claims under the circumstances, and did not act in a grossly negligent manner. Muse v. Schleiden, No. 1:04CV880, 349 F. Supp. 2d 990 (E.D. Va. 2004).

     Police officer and city were not entitled to summary judgment under Indiana state law on claims asserted by a motorist for damages allegedly suffered in a collision with the officer's vehicle when it went through a red light and entered an intersection. Intermediate appeals court rules that a state statute creating a duty on the part of the driver of emergency vehicles to "drive with due regard" for the safety of all persons governed the facts of the case, rather than another statute providing immunity to government employees engaged in enforcing the law within the scope of their employment. Patrick v. Miresso, No. 45A03-0405-CV-224, 821 N.E.2d 856 (Ind. App. 2005).

Public Protection: Crime Victims

     Police officers' failure to arrest a parolee after he surrendered to them at a police station under outstanding bench warrant did not make them liable for his murder of one woman and rape of another six days later. The officers initially failed to find a record of the warrant, and, while the parolee had previously pled guilty to indecent assault, there was nothing to put the officers on notice that he was capable of committing the kind of "violent, heinous" crimes he subsequently committed, or the identity of his possible victims. Nothing showed that the officers' conduct created the danger to the crime victims. Liedy v. Borough of Glenolden, No. 03-3539, 117 Fed. Appx. 176 (3rd Cir. 2004). [PDF]

Public Protection: Motoring Public and Pedestrians

     Police officer questioning motorist at the side of his vehicle at the site of a multi-vehicle collision could not be held liable for injuries he suffered when another car going by pinned to motorist against his car. The officer made a discretionary decision not to use flares or cones for the purpose of redirecting traffic around the accident scene. In asking the motorist to speak to her at the scene of the accident for purposes of an investigation, she did not take the motorist into custody or make him surrender his freedom of movement or judgment. Lassiter v. Cohn, No. COA04-672, 607 S.E.2d 688 (N.C. App. 2005).

     No liability for death of motorcycle driver and injuries to motorcycle passenger based on deputy sheriff's earlier failure to arrest motorist who did not have a valid driver's license. Unlicensed driver, who drove away from the encounter with the deputy, subsequently collided with the motorcycle. Deputy owed no special duty to protect the motorcycle driver or passenger, but only a duty to the general public, which was insufficient to impose liability under Georgia state law. Holcomb v. Walden, No. A04A2333, 607 S.E.2d 893 (Ga. App. 2004).

Public Protection: 911 Phone Systems

     Because there was a genuine issue of fact as to whether a 911 emergency operator gave express promises to an assault victim that police were being dispatched to the scene, or were already there, summary judgment in favor of the county was precluded in victim's negligence lawsuit. Court rules, however, that the county sheriff could not be held vicariously liable for the alleged negligence of county employees merely because he was their supervisor. Harvey v. County of Snohomish, No. 53449-1-I, 103 P.3d 836 (Wash. App. 2004).

Search and Seizure: Home/Business

     Incidental damage to a house resulting from deputies' entry to execute a search warrant, and accidental injuries suffered by a resident at the moment of entry were not violations of the Fourth Amendment. Appeals court also rules that the alleged actions of the deputies in detaining the residents in a living room for a period of time between two and three hours was not unreasonable, nor did it become unreasonable because the deputies allegedly, at some point during that time period, refused to allow access to the bathroom and/or denied one resident's request to take medicine. Steele v. County of Los Angeles, No. 01-57183, 117 Fed. Appx. 507 (9th Cir. 2004).

     Police could reasonably believe that they had exigent circumstances sufficient to support a warrantless entry into a home based on their knowledge that there were minors drinking liquor in a home and their observation, through a window, that an individual inside was not responding to a bright light shined onto his face, a ringing phone, or knocking on the door and window. Court also finds that a deck attached to the home was not part of the home's curtilage, so that the officers' warrantless entry onto it did not violate the homeowners' rights. Further, even if it did, the officers were still entitled to qualified immunity, as their entry onto the deck did not violate clearly established law. Hardesty v. Hamburg Township, No. CIV.03-72054, 352 F. Supp. 2d 823 (E.D. Mich. 2005).

     •Return to the Contents menu.

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

     Budget Data: Fiscal Year 2005 Budget and Performance Summary, U.S. Department of Justice.

     Conference: The National Center for Victims of Crime 1st National Conference, entitled "Forging Alliances - Building Leadership," will be held June 20-22, 2005 at the Omni Shoreham Hotel in Washington, D.C. According to its sponsors, it will feature more than 130 leading experts, 65 skill-building workshops, and opportunities to "forge alliances and build leadership." Topics will include human trafficking, victim confidentiality, high-tech stalking, criminal profiling, youth leadership to help crime victims, mass violence and community resilience, repeat rapes by undetected offenders, and the "neurobiology of trauma." For a detailed agenda, click here.

      Less-Than-Lethal Weapons: IACP Executive Brief on Electro-Muscular Disruption Technology (EMDT), entitled: "Electro-Muscular Disruption Technology: A Nine Step Strategy For Effective Deployment." (25 pages). The increased use of these less than lethal weapons has raised concerns about the safety of EMDT devices – devices that use a high-voltage, low power charge of electricity to induce involuntary muscle contractions causing temporary incapacitation. The IACP has developed an Executive Brief to inform law enforcement leadership on deployment challenges surrounding EMDT technology. An appendix of references and resources related to the EMDT technology is also included in the brief. [PDF] Links to 16 other resources on the general topic may be found at the International Association of Chiefs of Police (IACP) website at: http://www.iacp.org/research/rcdcuttingedgetech.htm The IACP also recently issued a press release on April 4, 2005 concerning the release of the Executive Brief.

     Statistics: Contacts between Police and the Public: Findings from the 2002 National Survey. Bureau of Justice Statistics. Presents data on the nature and characteristics of contacts between residents of the U.S. and the police over a 12-month period. Findings are provided from a nationally representative survey of nearly 80,000 residents age 16 or older. Detailed information is presented on face-to-face contacts with the police, including the reason for and outcome of the contact, resident opinion on police behavior during the contact, and whether police used or threatened to use force during the contact. The report provides demographic characteristics of residents involved in traffic stops and use-of-force encounters and discusses the relevance of the survey findings to the issue of racial profiling. Highlights include the following: * About 25% of the 45.3 million persons with a face-to-face contact indicated the reason for the contact was to report a crime or other problem. * In 2002 about 1.3 million residents age 16 or older — 2.9% of the 45.3 million persons with contact — were arrested by police. * The likelihood of being stopped by police in 2002 did not differ significantly between white (8.7%), black (9.1%), and Hispanic (8.6%) drivers. * During the traffic stop, police were more likely to carry out some type of search on a black (10.2%) or Hispanic (11.4%) than a white (3.5%). 04/05 NCJ 207845 Acrobat file (886K) | ASCII file (62K) | Spreadsheets (zip format 25K)

     Statistics: Punitive Damage Awards in Large Counties, 200. Bureau of Justice Statistics. Presents findings on civil trials concluded in 2001 in the Nation's 75 largest counties that produced a punitive damage award. Information reported in numerical tables includes the types of civil cases receiving punitive damages, punitive damage award amounts, a comparison of punitive damages in bench and jury trials, and types of litigants in trials with punitive damages. In addition, information on plaintiff and defendant post-trial and appellate activity in civil trials with punitive damages is presented. Trends in punitive damage awards in civil jury trials during the 1992 and 2001 study periods are also described. This is an electronic only report. Highlights include the following: * Plaintiff winners received $50,000 or more in punitive damages in half of the estimated 356 civil trials concluded in 2001 with punitive damage awards. * Punitive damages exceeded compensatory awards in 39% of the 356 civil trails with punitive damages. * The type of tort cases in which plaintiff winners were most likely to receive punitive damages included slander/libel (58%), intentional torts (36%), and false arrest/imprisonment (26%) cases. 03/05 NCJ 208445 Acrobat file (521K) | ASCII file (7K) | Spreadsheets (zip format 13K)

     Terrorism and Homeland Security: Interim National Preparedness Goal, March 31, 2005 [PDF], published by the Department of Homeland Security for the guidance of federal agencies and departments, and state, local, territorial, and tribal officials, as well as the public and non-governmental organizations in strengthening preparedness for emergencies, including major disasters and terrorist attacks.

     Reference:

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

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