CONTENTS

Appeals court reinstates lawsuit against one officer for using allegedly excessive force in the course of restraining a disturbed man, causing his death by kneeling on him while he was on the ground, and against other officers for allegedly failing to intervene to prevent the excessive use of force.

     The mother of a man who died during or shortly after police officers in Madison, Wisconsin attempted to subdue and arrest him, claimed that the officers used excessive force during the arrest, and that other officers improperly failed to intervene. A federal trial court granted summary judgment to the defendant officers, finding that there was no evidence that they did anything objectively unreasonable. A federal appeals court disagreed and reversed.

     The decedent was the son of Somali immigrants who suffered from severe Post Traumatic Stress Disorder (PTSD) because of traumatic incidents he endured as a child in his homeland, causing him to be prone to having "episodes" of disorientation and erratic behavior. One afternoon, he was having such an episode, staggering across three lanes of travel on a street, breathing heavily and in apparent physical distress. When a nurse observed this, and exited her vehicle to attempt to assist him, he attempted to climb into her vehicle, threw himself against the vehicle, ran back into traffic, threw debris at her, and then grabbed her hair and clawed at her uniform. She attempted to free herself by hitting him in the head with her cell phone, and ultimately succeeded after the man struck her once in the face.

     Police dispatches reported the fight, and when one officer arrived on the scene, the man began swinging his belt over his head by the buckle. Other officers then arrived on the scene. Several of them attempted to restrain the man and took him to the ground. Once there, he began kicking his legs, moving his arms so they could not be handcuffed, and arching his back upwards as if trying to escape. One officer allegedly placed his right knee and shin on the back of the suspect's shoulder area and applied his weight to keep him from squirming or flailing. The man stopped struggling after about 15-20 seconds of this, and the man was handcuffed, following which the officer took his weight off of him. The officer estimated that his knee and shin were on the back of the man's shoulder for approximately 30-45 seconds.

     The officers subsequently realized that the man was not breathing, and two officers who were holding onto his legs allegedly felt him go limp.

     Resuscitation efforts were of no avail, and the suspect died approximately two and a half minutes after he was taken to the ground. The plaintiff claimed that the officer who put his weight on her son used excessive force causing chest and neck trauma causing his death, and that the other officers observed him using an unreasonable amount of force, but failed to intervene.

     The appeals court found that the trial judge's grant of summary judgment for the defendants was erroneous.

     It was undisputed that the officer knelt on the suspect's shoulder or back for 30-40 seconds while he was prone on the ground, and that the decedent died roughly two minutes later of injuries consistent with pressure or crushing trauma to the chest and neck area. There was competent medical testimony that these injuries were suffered after being put on the ground by the arresting officers. The appeals court found that these facts alone created a material fact as to whether the officer used an unreasonable amount of force towards the decedent.

     The court noted that no one argued that deadly force was justified once the decedent was lying prone on the ground with his arms behind him, and yet the record supported an inference that the officer knelt on the suspect with enough force to inflict lethal injuries, rather than, as the officer maintained, merely with enough force to keep the suspect from "squirming." Therefore, it was an issue for the jury to weigh all the evidence and choose between conflicting inferences.

     The appeals court also found that, depending on how the jury evaluated the evidence of the conduct of the officer who knelt on the suspect, it could also conclude, consistent with the evidence, that one or more of the other officers could and should have attempted to prevent the suspect's injuries, so it also reinstated the claims against the other officers for alleged failure to intervene to prevent the excessive use of force.

     Abdullahi v. City of Madison, #04-4114, 2005 U.S. App. Lexis 19580 (7th Cir.).

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Sheriff and two of his deputies were properly denied qualified immunity for allegedly carrying out a campaign of harassment and retaliation, including surveillance of homes and business, accessing of confidential government information, issuance of false traffic citations, and the seeking of an arrest warrant on "trumped-up" environmental charges against two businessmen in retaliation for their support of a ballot referendum that would have reduced the powers of the sheriff's department.

     Two businessmen claimed that a former sheriff and two of his deputies carried out a campaign of harassment and retaliation against them after they supported a county referendum opposed by the sheriff which would have reduced the powers of the sheriff's department. The referendum, placed on the ballot in Forsyth County, Georgia, would have established a county-wide police force and transferred most of the powers of the sheriff's department to the county police, placing the sheriff under the supervision of county officials. The sheriff at the time opposed the referendum, and the plaintiffs, along with others, formed a committee in support of the ballot measure and sponsored a debate on the matter.

     While the referendum was defeated at the election, the plaintiffs claimed that the sheriff and his deputies formed a "Strike Force" within the department to carry out a campaign of harassment and intimidation against them in retaliation for their actions. Among the conduct complained of, they claimed that the defendants took down license plate numbers of cars at the forum they sponsored in support of the referendum, conducted surveillance of their homes and businesses, set up roadblocks near their homes, stopped their cars without reason to do so, and issued them false traffic citations, as well as accessing government databases to obtain confidential information about them. They further claim that the defendants tried to obtain a warrant for their arrest on "trumped-up" environmental charges, and mailed flyers to 35,000 homes in the county calling them the "real criminals," members of a "chain gain," and the "same type of criminals that terrorize Forsyth County."

     The plaintiffs claim that most of these events took place shortly before the 2000 election and were intended to intimidate them from opposing the sheriff's re-election. They further claim that these efforts were successful and "chilled" them from engaging in further political activities like they did during the campaign for the referendum.

     The trial court denied the defendants summary judgment on the plaintiffs' First Amendment, civil right conspiracy, and state law claims.

     A federal appeals court found that private individuals claiming that police conduct carried out for retaliatory reasons must be shown, for purposes of a First Amendment claim, to have been acts which would "deter a person of ordinary firmness from exercising his or her First Amendment rights."

     Applying that standard to the alleged facts, the appeals court readily concluded that the plaintiffs had alleged facts that a jury could find would deter a person of ordinary firmness from the exercise of First Amendment rights.

Taken in the light most favorable to the plaintiffs, the record is replete with instances where the defendants followed, pulled over, cited, intimidated, or otherwise harassed the plaintiffs. The defendants allegedly accessed confidential government databases containing information on the plaintiffs, attempted to obtain arrest warrants against the plaintiffs without probable cause, and produced and mailed to Forsyth County residents flyers depicting the plaintiffs as criminals terrorizing the county.

     Further, the plaintiffs themselves indicated that they were, in fact, actually chilled in the exercise of their rights, failing to participate in the 2000 election to the degree they would have but for the defendants' alleged actions. The appeals court also found that the law was clearly established at the time of the defendants' alleged actions that retaliation against private citizens for exercising their First Amendment rights was unlawful. Accordingly, the appeals court ruled, the trial court properly denied summary judgment and denied qualified immunity to the defendants.

     Bennett v. Hendrix, #04-12256, 2005 U.S. App. Lexis 19466 (11th Cir.).

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Police detective could reasonably have believed that he had probable cause to arrest a suspected drug dealer and convicted felon believed to be in possession of weapons, and to use force in doing so, based on information obtained from confidential informants, and was therefore entitled to qualified immunity for doing so. Appeals court also upholds searches of suspect's two apartments, based on telephone confirmation of issuance of search warrant in one case, and consent of co-occupant on the other.

     Las Vegas, Nevada police suspected a felon with a lengthy history of arrests for possessing illegal weapons and drugs. A police detective applied for a search warrant for his apartment, stating in an affidavit that he had past and current information from reliable informants leading him to believe that the man was trafficking in drugs and possessed firearms. A detective followed the suspect when he left his apartment and drove to another apartment he had elsewhere in the city. He stopped and detained the suspect after he attempted to exit the vehicle and enter the apartment. It was disputed, subsequently, whether this was merely a detention or an arrest. Police subsequently transported the suspect back to his first apartment, where he refused to allow officers to enter to search, but allowed them to wait inside the entrance until they obtained the applied for search warrant.

     When the officers were notified by phone that the search warrant had been issued, they conducted the search. During that search, two officers returned to the second apartment, where a co-occupant provided them with oral and written consent to conduct a search there. The search at the first apartment yielded a .38 caliber revolver, a shotgun, and 2.73 grams of cocaine, while the search at the second apartment resulted in recovery of two scales commonly used to weigh narcotics, a shotgun, a bag filled with shotgun shells, and two boxes of .38 caliber bullets. The suspect was charged with being a felon in possession of a firearm and with possession of cocaine with intent to distribute. He was subsequently indicted by a federal grand jury on a firearms charge.

     The arrestee subsequently sued the detectives for allegedly violating his Fourth Amendment rights, and the trial court granted the officers' motions for summary judgment, finding that they had probable cause and did not use excessive force in making the arrest, as well as finding that the searches of the two apartments were reasonable.

     An appeals court upheld this result.

     For purposes of the appeal, it assumed, without deciding, that the encounter outside the second apartment was an arrest, and that the officer lacked probable cause to make an arrest at that time, but found that regardless of that a reasonable officer in the detective's position would have believed that he had probable cause to make an arrest at that time and to use force in doing so.

     At the time, according to the record, officers were aware that the suspect was a felon who had recently confessed to shooting his former girlfriend, and that it was highly likely that he continued to deal drugs and possess firearms. Several informants had recently stated that he had just returned from purchasing cocaine in California, and one of these informants had stated that he had seen the suspect cooking crack on the stove that very day, and that the suspect still kept a gun in the bedroom of his apartment.

     The court found that there was no reason to think that the gun in the bedroom was the only firearm that the suspect had, or that he did not have it or other weapons, while outside the apartment. When a drug dealer has shot someone and continues to commit the crime of possessing a firearm, the court stated, police " may be permitted to act on the assumption that he may be armed and dangerous." Accordingly, under the totality of the circumstances, a reasonable officer in the detective's position could have believed that there was probable cause to arrest him outside the second apartment and to use force in doing so, and he was therefore entitled to qualified immunity.

     The appeals court also upheld the legality of both searches.

     Burrell v. McIlroy, #02-15114, 2005 U.S. App. Lexis 20060 (9th Cir.).

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Federal appeals court, overturning 20-year-old precedent, rules that parents of an adult son shot and killed by a police officer could not recover damages in federal civil rights lawsuit for the loss of the companionship of their son.

     The parents of an adult son, a 22-year-old college student, who was shot and killed by a Chicago police officer, sought to recover damages in a federal civil rights lawsuit against the officer, the city, and a number of other defendants. The parents sought damages for their loss of the society and companionship of their son, relying on a prior federal appeals court decision, Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in which the court held that a parent's constitutional liberty interest in his relationship with his adult son was violated when his son was killed by police.

     A federal appeals court panel has found that the earlier case of Bell was wrongly decided and must be overruled. The court held that the U.S. Constitution does not allow a parent to recover damages in such circumstances, and on that basis, it upheld the trial judge's entry of summary judgment in favor of the defendants.

     The decedent was shot and killed by a police officer who fired a single shot through the rear window of his vehicle, once it stopped after a chase by three vehicles on an expressway. In a subsequent wrongful death lawsuit in state court on behalf of the decedent's estate, $9.6 million was awarded for the benefit of his sole heir, his son, who was born four months after his death.

     Following that, the decedent's parents filed their own federal civil rights lawsuit seeking damages for their own losses arising out of the shooting.

     In overturning Bell, and thereby denying the plaintiffs' claims, the appeals court noted that neither Bell nor the immediate case involved intentional action by the state to interfere with a familial relationship--the plaintiffs did not claim that the officer shot their son for the specific purpose of terminating his relationship with his family, and that he was an adult, and had formed a new family unit with the woman who was then bearing his child.

     The appeals court found that the ruling in Bell currently "stands alone" in allowing parents to recover damages for the loss of companionship of an adult child in the circumstances found in this case.

     Affording plaintiffs a constitutional due process right to recover against the state in these circumstances would create the risk of constitutionalizing all torts against individuals who happen to have families. Upon reconsideration, we now recognize that the finding of a violation of the parental liberty interest in Bell is no longer supportable. Furthermore, although we need not impose an absolute rule that parents of adult children lack any liberty interest in their relationship with their children, we agree with our sister circuits that minor children's need for the guidance and support of their parents warrants "sharply different constitutional treatment."

     The appeals court therefore overruled Bell insofar as it recognized a constitutional right to recover for the loss of the companionship of an adult child when that relationship is terminated "as an incidental result of state action."

     Russ v. Watts, No. 04-3628, 414 F.3d 783 (7th Cir. 2005).

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City's alleged unwritten policy banning signs and banners on highway overpasses was not unconstitutional. Appeals court rejects constitutional claims of anti-abortion protester barred from displaying her banner there.

     An anti-abortion protester, on several occasions, went to a highway overpass in Denver, Colorado to hold a banner reading "Abortion Kills Children" for motorists traveling below to see. After Denver police repeatedly asked her to stop displaying the banner, she filed a federal civil rights lawsuit claiming that the city had an unwritten policy banning signs and banners from highway overpasses which violated her First Amendment rights.

     A federal appeals court rejected this argument, and found that the defendant city was entitled to judgment as a matter of law.

     During the four specific confrontations between the plaintiff and the police officers approached her and asked her to leave the overpass or remove her banner, but were unable to cite a specific law proscribing her display. She was told, in the third encounter, that her display violated a city "posting" ordinance, and was cited by an officer, in the fourth encounter for violation of that ordinance, but the charge was dropped because she had not affixed the banner to anything, but only held it up.

     The appeals court assumed, for purposes of its review, that the city had the broadest policy reasonably inferable from the record--prohibiting all expressive conduct on overpasses that was visible to traffic below and potentially disruptive to that traffic on the underpass.

     The court found that the policy was "content-neutral," and that it was a reasonable restriction on the time, place, or manner of protected speech, narrowly tailored to serve a significant government interest, and leaving open ample alternative channels of communication.

     The appeals court found that the city could constitutionally restrict the display of signs or banners on highway overpasses, as it had a significant interest in traffic safety and in the avoidance of interference with official traffic control devices on highway overpasses. Restricting signs or banners on highway overpasses directed at motorists below was "narrowly tailored to achieve" that interest. Further, the policy affected only highway overpasses, and there were many other public places, including sidewalks, parks, and other public forums to present views and ideas to the public. violating it.

     Faustin v. City of Denver, #04-1025, 2005 U.S. App. Lexis 19834 (10th Cir.).

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Officers' initial withholding of police reports from defense attorney in prosecution of 16-year-old for murder of 9-year-old boy did not result in prejudice to his defense, precluding his federal civil rights claim. Civil rights claim was also barred by prior determination, in his appeal of his criminal conviction, that no prejudice occurred. No liability despite subsequent release of plaintiff after new evidence exonerated him of the crime.

     A Massachusetts juvenile was convicted of first-degree murder and related offenses after a jury trial, and sentenced to 18 to 20 years for the fatal shooting of a nine-year-old boy. His sentence was upheld on appeal, but five years into his sentence, the prosecutor moved to set aside the conviction in light of new evidence exonerating him and he was released.

     He then filed a federal civil rights lawsuit against the City of Boston, the Boston Police Commissioner, and three Boston police officers for violation of his federal civil rights, conspiracy, and violation of state law. Among other things, he claimed that two of the officers had violated his rights by withholding allegedly exculpatory evidence--police reports summarizing statements made by himself and his mother to the police to the effect that he was at home when the shooting occurred. The trial court granted summary judgment to these officers on all claims. A federal appeals court has upheld this result.

     The underlying case involved a nighttime shooting by two men at a group of people at a housing project. During the shooting, a nine-year-old boy whose birthday had been celebrated that day was hit and killed. The plaintiff, then sixteen years old, was arrested subsequently based on eyewitness identifications, and an officer informed the youth and his parents of his Miranda rights, but both the youth and his parents signed a waiver and agreed to have the arrestee talk to officers without a lawyer present. During an interrogation, which included the officer telling the youth he was under arrest for murder, the arrestee stated that he was home on the night of the shooting and remained there all evening. The youth's mother also confirmed this. The officer gave reports concerning these statements to the officer supervising the investigation.

     The arrestee's defense counsel allegedly repeatedly asked that reports of these statements be produced, only to be told by the prosecutor that there were no such statements. Additionally, the supervising officer allegedly initially testified that there were no such statements from the defendant. The day before the prosecution rested its case, the officer who conducted the interrogation faxed the reports summarizing the statements of the arrestee and his mother to the prosecutor, who immediately faxed them to the defense attorney. A motion to dismiss the indictments on the basis of this late disclosure was denied. When asked about this on the stand, both the interrogating officer and supervising officer claimed that the prosecutor had only asked for "taped" statements, of which they had none. The arrestee was convicted, and on appeal it was found that the late disclosure of the police reports did not prejudice the defense.

     In rejecting the plaintiff's civil liability claims, the federal appeals court agreed that the delay in disclosure of the police reports did not cause prejudice to the plaintiff and were not the cause of his conviction. It noted that the Supreme Judicial Court of Massachusetts, while finding that the initial withholding of the statements, while "improper and reprehensible," was not prejudicial to the plaintiff. While the plaintiff and his mother presented an alibi, it was "less than airtight," as he claimed to have been in his own room and neither he nor his mother could provide anyone with whom the arrestee had contact with after ten o'clock.

     Further, regardless of the statements, the defense already knew that both the arrestee and his mother could testify that he had been home, yet chose not to call them to the stand.

     The appeals court also found that the plaintiff's claims concerning the late disclosure of the reports were barred by collateral estoppel--the prior decision of the Massachusetts Supreme Judicial Court on the same issue, determining that it had resulted in no prejudice to his defense.

     Johnson v. Mahoney, #04-1745, 2005 U.S. App. Lexis 20111 (1st Cir.).

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Federal appeals court finds that arrestee could pursue a claim under RICO against the Los Angeles Police Department and its personnel for alleged economic losses, including loss of employment or employment opportunities, stemming from his purportedly "unjust incarceration" on charges he claims were based on evidence fabricated against him.

     A California arrestee filed a federal lawsuit against over two hundred people connected with the Los Angeles Police Department (LAPD) or Los Angeles city government under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968, claiming that officers had "fabricated evidence" that he had committed assault with a deadly weapon, and had also tampered with witnesses and conspired to obtain a false conviction against him. As a result, he claimed, he lost employment, employment opportunities, and wages because he was unable to pursue gainful employment while defending himself against unjust charges and while unjustly incarcerated.

     The police chief moved to dismiss the complaint, arguing that the plaintiff lacked standing because he failed to allege an injury to "business or property" as required by RICO, 18 U.S.C. Sec. 1964(c). The trial judge agreed and dismissed the lawsuit.

     A divided panel of the U.S. Court of Appeals for the Ninth Circuit upheld this result. The full Ninth Circuit Court of Appeals, ruling en banc, has now reversed, finding that the plaintiff had sufficiently claimed both a property interest and a financial loss under 18 U.S.C. Sec. 1964(c) to pursue a claim for damages under RICO.

     Two types of loss the plaintiff asserted, stemming from an intentional interference with contract and interference with prospective business relations, were established claims under California state law, the appeals court noted. His alleged financial loss was purportedly because he could not fulfill his employment contract or pursue valuable employment opportunities because he was in jail.

     The court found that if a defendant engages in a pattern of racketeering activity in a manner forbidden by the statute, and the activities injure the plaintiff in his business or property, there is a claim under Sec. 1964(c) of RICO. The appeals court acknowledged that its approach would allow more RICO claims to go forward than if it were required that the complained of activities be intended to harm a business or property interest, but noted that "these policy consequences, assuming they are undesirable, cannot blind us to the statutory language."

     The appeals court found that there was no room in the statutory language of RICO for an additional "amorphous requirement" that, for an injury to be to business or property, the business or property interest had to be the "direct target" of the wrongful acts.

     If that were the legal standard, the court found, "we would have the anomalous result that one could be liable under RICO for destroying a business if one aimed a bomb at it, but not if one aimed at the business owner, missed and hit the business by accident, or if one aimed at the business owner who happened to be in the business at the time."

     Four judges on the appeals court dissented, arguing that the plaintiff's claim of employment loss was derived from, and a secondary effect of, his alleged false imprisonment, and that any economic losses are part of the injury to his person, "not distinct injuries to his business or property" within the meaning of RICO.

     The dissenters argued that the majority, by adopting its analysis, had created a split with two other federal appeals courts, the Eleventh and Seventh, which held that monetary losses incurred as a result of personal injuries were noncompensable under RICO. See Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988), and Doe v. Roe, 958 F.2d 763 (7th Cir. 1992). The dissent further notes that the plaintiff's conviction was upheld on appeal, with both the California Supreme Court and U.S. Supreme Court denying further review, and that his federal habeas petition had also been denied. It argued, therefore, that the "premise that he was 'unjustly incarcerated,'" which was the basis of his RICO claim, was therefore "highly questionable." Further, it argued that under the majority's approach, there was likely to be an "indirect, hypothetical, and derivative loss of wages whenever there is a personal injury of a person who is otherwise employed," giving rise to a great number of RICO claims.

     Diaz v. Gates, No. 02-56818, 420 F.3d 897 (9th Cir. 2005).

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Federal regulation prohibiting airline passengers from interfering with airline screeners in the performance of their duties was not overbroad, unconstitutionally vague, or in violation of passengers' First Amendment rights.

     A federal appeals court has rejected an airline passenger's argument that a regulation prohibiting interfering with airport screeners in the performance of their duties is unlawful, overbroad, unconstitutionally vague, and in violation of his First Amendment rights. The passenger was appealing from a Transportation Security Administration decision upholding an Administrative Law Judge's determination that he had violated 49 C.F.R. § 1540.109, which prohibits any person from interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties.

     The passenger went to the Hopkins International Airport in Cleveland, Ohio to board a scheduled flight. When he walked through a metal detector, he set off the alarm, and the screener responsible for that station asked him to step aside and wait for another screener operating a hand wand. The passenger told the screener that he thought it was his watch that set off the detector, and took the watch off, attempting to walk back through the detector. The screener put his arm up to stop the passenger from walking back through, informing him that he could not pass through until he was hand-wanded.

     The passenger, eager to catch the plane, told the screener that this was "bullshit," and asked whether this was "your rule" or the rule of the airport, and was informed that it was the rule developed by the security company which employs him. As the passenger waited, he became more anxious about catching the flight, and he became more belligerent toward the screener, exclaiming, "shit, man, can't you get someone over here." He also allegedly told the screener that if profanity bothered him, he was in the wrong line of work and should consider living "in a bubble," as well as that he had a First Amendment right to say what he wanted. To deal with the passenger's escalating loud and belligerent conduct, the appeals court noted, the screener had to stop his screening line and call over his supervisor. When the supervisor arrived, the passenger stated that everything that the screener said was "shit." At that point, a police officer on duty came and removed the passenger from the scene. The passenger subsequently was assessed a $700 civil penalty for violating 49 C.F.R. Sec. 1540.109.

     In rejecting the passenger's arguments, the appeals court noted that a passenger who asked a "good-faith question" to a screener could not validly be found to have interfered with the screener in the performance of his duties, even if the screener would need to divert his attention to that passenger to address the question. In fact, the regulation's preamble itself states that such questions are permissible. Additionally, a grumbling passenger, even if the grumbling includes profanities, would not be found to have interfered with a screener in the performance of his duties, and the screener involved in this case, in fact, testified that he frequently hears passengers grumbling in line about how long the screening takes.

     In this case, however, the court found, the passenger's conduct cannot be characterized as simply asking a good-faith question while using profanities or as grumbling about not being allowed to walk back through the metal detector or the delay in being hand-wanded. Instead, the passenger interfered with the screening process by "actively engaging" the screener with "loud and belligerent conduct," and, after being asked not to use profanities, by exclaiming that the screener should be in a different line of work, that he should live in a bubble, and that it was a free country in which he could say what he pleased. This went to the extent that the screener literally had to shut down his screening line and obtain assistance from his supervisor. Accordingly, the passenger interfered with the screener's duty to both thoroughly screen passengers, and to do so "in an efficient manner."

     Because the regulation was not applied to the passenger merely for using profanities, it was not, as he claimed, a "content-based" regulation of speech as applied, but rather a content-neutral regulation. The regulation was justified by a substantial government interest of preventing interference with the passenger screening process, and ensuring that those screened are not potentially carrying weapons. The regulation was not overbroad as it would be construed to only prohibit conduct which actually hinders the screening process. The appeals court further rejected the argument that the regulation was vague and that reasonable passengers would not be able to determine what was prohibited, as the regulation did not, it found, reach any "substantial" amount of constitutionally protected conduct.

     Rendon v. Transp. Sec. Admin., #04-4229, 2005 U.S. App. Lexis 20285 (6th Cir.).

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Police detective violated a couple's clearly established constitutional rights by entering their apartment to execute a search warrant when he knew that the warrant was ambiguous as to which of two apartments on the second floor of a building was to be searched. The detective acted improperly in resolving the ambiguity on his own, rather than seeking clarification from the magistrate who issued the warrant.

     While executing a search warrant for a residence, a police detective and his team of officers mistakenly entered a couple's apartment. The couple subsequently filed a federal civil rights lawsuit claiming that the detective failed to take reasonable steps to discern the proper target of the warrant before executing it, and that the detective also failed to give them sufficient time to answer the door before entering, violating the "knock and announce" rule without justification.

     The trial court denied the detective's motion for summary judgment on the knock-and-announce claim, but granted summary judgment for the detective on the basis of qualified immunity on the warrant claim.

     A federal appeals court reversed as to the claim concerning the warrant, however, finding that the detective violated the couple's clearly established rights when he executed a validly issued warrant he knew to be facially ambiguous, and "circumvented" the magistrate judge who issued the warrant resolving the warrant's ambiguity on his own. Examining the record, the appeals court also found that the record showed that there were "no genuine issues of fact" regarding the detective's deprivation of the couple's constitutional rights, and it therefore granted summary judgment to the couple on their claims concerning the execution of the warrant.

     The detective had received a tip from a first floor tenant in an apartment building indicating that some upstairs apartment residents were involved in drug trafficking, but failed to specify which of the two second floor apartments the alleged suspects lived in. The couple lived in one apartment, while another woman lived in the other apartment on the second floor. The detectives observed visitors coming to the building from both entrances. Shortly thereafter, another detective received a tip from a confidential informant indicating that the single female tenant in the other second floor apartment in the building was manufacturing methamphetamine. The first detective then obtained a warrant to search the apartment in question, but the warrant did not list the suspect's name, instead instructing officers to search the "upstairs apartment on the right" at the address.

     The detective, while driving with his team to the building to execute the warrant, realized that, as there were two staircases facing opposite directions in the building, the warrant was unclear when it directed the team to search the "upstairs apartment on the right." He decided on his own that apartment #1, where the couple lived, was the most likely location for the lab, and that since most people allegedly used the building's rear entrance, the informant's reference to an upstairs apartment "on the right" probably meant on the right as viewed from the top of the rear stairs, which also pointed toward apartment #1, the couple's home.

     Despite this, he and his team entered the building through the front door. He allegedly did not read the labels on the doorbells because he believed he had targeted the correct apartment. Once on the second floor, the team went to apartment #1, which was on the left, but would have been on the right if they had used the back entrance and stairs. On the detective's orders, a member of the team knocked on the couple's door, called out "police, search warrant," and kicked in the door. The officers entered, pressed the male occupant to the ground, and handcuffed him, and also awakened the female occupant, who was asleep in her bed, and handcuffed her.

     Once the detective saw the female occupant, he recognized her and realized that he was in the wrong apartment. The couple was released, the detective apologized, and the team proceeded across the hall where they proceeded to search the other apartment.

     The appeals court noted that the warrant clause of the Fourth Amendment requires that a warrant particularly describe the place to be searched and the persons or things to be seized. A warrant that fails to comply with this requirement is unconstitutional. The court found that the warrant was valid when it was issued despite the lack of diligence displayed by the police in failing to ensure that the suspect's name and apartment number appeared on the warrant, and despite the fact that the scope of the warrant turned out to be ambiguous.

     The detective's conduct, however, in executing the warrant, the court found, violated the couple's clearly established Fourth Amendment rights. From his prior surveillance, the detective knew that the building contained two staircases, and that if he took the back staircase, then the "upstairs apartment on the right" would lead him to the couple's apartment, and, in the alternative, if he took the front staircase, then the warrant would lead him to the woman's apartment. By his own admission, he knew before he executed the warrant that the phrase "upstairs apartment on the right" would lead him to a different apartment depending on which staircase was taken.

Where a warrant is open to more than one interpretation, the warrant is ambiguous and invalid on its face and, therefore, cannot be legally executed by a person who knows the warrant to be ambiguous.

     The violation of the couple's rights was not based on the ambiguity of the warrant, the court reasoned, but rather because the detective knew that the warrant did not particularly describe the place to be searched based on his prior surveillance of the building, but failed to immediately stop execution of the warrant and seek the necessary clarification of the warrant to make sure that it did particularly describe where to search.

     The detective acted improperly in applying his earlier surveillance and subsequent deductions to resolve the warrant's ambiguity rather than presenting these observations to a magistrate for determination. His decision that the informant was more likely to have used the rear door, and thus to have described apartment #1, the couple's apartment constituted an evaluation of probable cause that the Fourth Amendment requires be left to the magistrate in the absence of exigent circumstances. Because the detective had prior knowledge of the building's layout before executing the warrant, the court reasoned, he did not qualify for any "good-faith exception."

Where an officer executing a warrant knows or should have known that a warrant, which was valid when issued, now lacks the necessary particularity, then that officer cannot legally execute the warrant. Furthermore, if an officer obtains information while executing a warrant that puts him on notice of a risk that he could be targeting the wrong location, then the officer must terminate his search.

     The appeals court also upheld the denial of summary judgment on the couple's knock-and-announce claim, noting that there was nothing in the warrant itself or the particular circumstances of the search which provided exigent circumstances justifying an exception to the knock-and-announce requirement. The evidence in the case, taken in the light most favorable to the plaintiffs, moreover, suggested that the officers waited only two seconds after knocking before kicking in the door, which was too short a time to comply with the knock-and-announce requirement.

     Jones v. Wilhelm, No. 04-1261, 2005 U.S. App. Lexis 21386 (7th Cir.).

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Officer acted properly, while investigating a prowler call, in stopping the only car observed in the area, which had tinted windows obstructing his view inside, and he and another officer acted properly in attempting to conduct a pat-down search of a passenger outside the vehicle who was known to be a convicted narcotics felon. Appeals court fails to reach issues of whether officers acted lawfully, however, in shooting passenger, and in hitting him and using a dog against him after the shooting, in light of disputes as to whether he was actually armed with a gun and continued to pose a threat after he was shot.

     Two New London, Connecticut police officers who participated in a traffic stop that ended in the death of a passenger in the vehicle were sued by the man's estate for alleged violation of his Fourth Amendment rights. A federal appeals court found that the officers were entitled to qualified immunity for their actions during the traffic stop and attempted pat-down of the passenger, while finding that it lacked jurisdiction to address issues concerning one officer's use of deadly force and the two officers' post-shooting use of force.

     One officer stopped the vehicle, which had tinted windows, and appeared to be taking a "circuitous route" through a "troubled neighborhood," while investigating a call reporting a prowler. As he spoke with the driver, he was joined by another officer. When one officer checked out the names of the driver and passenger, he learned that the passenger was on parole for a narcotics felony. The driver consented to a search of the car, and the passenger was asked to step out so that the search could be conducted. When the passenger stepped out, one officer attempted a pat-down search, but he was allegedly "uncooperative and aggressive," and stated that "I'll show you what I got in my pocket." When the passenger moved his hands towards his pocket, both officers attempted to restrain him and a fight ensued.

     According to one of the officers, the passenger then drew a small silver handgun and pointed it at the head of the other officer. The first officer then struck the passenger with three shots. The officers stated that they could not then see the passenger's hands to tell whether he was still armed, and he did not respond to their commands to show his hands. One of the officers then allegedly struck him several times in the head, and commanded a police dog to "engage" the passenger, which the dog did. The officers testified that the passenger then showed his empty hands, and was handcuffed.

     Paramedics arrived on the scene and found a small silver handgun near the passenger. The plaintiffs in the lawsuit claimed that this gun was "planted" by the officers. The paramedics found the passenger to be uncooperative and combative, and that they had to strap him to a board to restrain him from injuring himself or others, despite his gunshot wounds and being handcuffed. He died at the hospital soon after.

     In deciding that the traffic stop was a violation of the Fourth Amendment and objectively unreasonable, the trial court reasoned that the circumstances cited by the police were insufficient to support the stop. The court mentioned hesitating and stopping at a stop sign, after turning at the stop sign, following a route it had already traveled, being present in a different town than where it was registered, the fact that it was 4:30 a.m., and that the car was in a "high crime" area. The appeals court agreed that, if these were the only circumstances, it might agree that they did not amount to a reasonable suspicion justifying a stop.

     The appeals court found, however, that the officer making the stop relied on three other uncontested facts that the trial court improperly failed to consider--the fact that he was investigating a prowler call in the area, that the stopped vehicle was the only car he saw on the road, and that the car had tinted windows, which obstructed his view into the car, and might provide an independent basis to support the stop. The appeals court found that these additional factors made the officer's stop objectively reasonable as a matter of law. Additionally, the officer was entitled to qualified immunity, as no clearly established case law held that the combination of these facts was not enough for an investigatory stop of a vehicle.

     While there might be a dispute about the scope of the driver's consent to a search of her vehicle in this case, and whether she consented to the removal and pat-down of her passenger, the appeals court noted, once the passenger was out of the car, the officers were clearly justified in performing a pat-down search for their own safety, particularly in light of the facts that they were in a high-crime area late at night and that they knew that the passenger was a convicted narcotics felon who was acting suspiciously. The officers were therefore entitled to qualified immunity for claims relating to the pat-down search.

     Because there were disputed issues of material fact concerning the use of deadly force and the use of force after the shooting, however, the appeals court found that it lacked jurisdiction on appeal to consider claims arising out of the shooting, beating, and use of the dog. It was disputed whether the passenger was in fact armed with a gun, and whether he presented a continued threat after being shot.

     Holeman v. City of New London, No. 04-5031, 2005 U.S. App. Lexis 21213 (2nd Cir.).

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Officer's alleged premature termination of breathalyzer test when motorist was initially unable to produce an acceptable breath sample, resulting in driver's license being suspended for purported refusal to submit to the test, was not a "conscience-shocking" act sufficient to support a claim for violation of substantive due process.

     A Northfield, New Hampshire police officer arrested a motorist during the early morning hours on suspicion of driving while intoxicated, and transported him to a police station in nearby Laconia to administer a breach alcohol test, The motorist subsequently conceded that probable cause existed for the arrest.

     Once at the station, the officer used an "Intoxilyzer 5000" machine to measure blood alcohol content (BAC). This machine computes a driver's BAC based on two breath samples, and to generate a valid sample, the driver has to exhale continuously into a tube connected to the machine for four seconds and provide the machine with approximately one liter of air. Each sample has to be given during a separate two-and-one-half minute window, and if a testable sample is not provided within either the first or second window, the machine automatically cancels the test.

     Under state law, a driver's refusal to submit to a breath test results in an automatic driver's license suspension, regardless of whether the person is ultimately convicted of anything. It took the motorist three tries to produce a full sample, which rated a BAC at 0.04 percent, well below the state's level for presumed intoxication. The motorist then failed to provide a testable second sample on at least two attempts. When his further efforts proved unsuccessful, the officer pressed a button on the machine that recorded the motorist's "refusal," and terminated the test. At that time, the two-and-one-half minute window for receiving the second breath sample had allegedly not yet ended.

     The motorist later claimed that he was coughing and having trouble breathing and that he requested a blood test rather than a breath test. The officer, however, believed that the motorist was obstructing the test either by holding his breath or by placing his tongue over the opening in the tube. The motorist was released and went to a hospital where he obtained a blood test two hours later which suggested he had a BAC of 0.03 percent at the time of the breath test. The officer proceeded with the DUI charge, although it was later dropped, and the state suspended the motorist's license for two years for the alleged refusal to submit to a breath test (based in part on a prior conviction for driving while intoxicated).

     The motorist subsequently had the driver's license suspension set aside on the basis of medical testimony that he suffered from occupationally induced asthma which likely prevented him from producing the required breath samples, with the court finding insufficient evidence that the motorist had willfully refused to submit to the breath test.

     The motorist's federal substantive due process civil rights lawsuit against the officer was based on the officer's alleged premature termination of the breath test.

     The trial court granted summary judgment for the officer, finding that his conduct was not sufficiently "conscience-shocking" to constitute a violation of due process.

     A federal appeals court agreed. It found that the officer's conduct, "whether or not letter perfect," was reasonable under the circumstances and "proportionate to the governmental interest at stake." Even under the motorist's version of the events, the officer's actions were not "so extreme, egregious, or outrageously offensive as to shock the contemporary conduct," and therefore did not violate substantive due process.

     The court noted that the whole incident began with an arrest based on probable cause following the officer's observation of the plaintiff's erratic driving, the odor of alcohol coming from the car, and the motorist's admission that he had been drinking, as well as his inability to pass two out of four roadside sobriety tests.

     The court stated that police officers who administer sobriety tests have to remain on the lookout for "creative evasions" designed to "cloak refusal" to submit to the test "in the raiment of compliance." The officer acted reasonably in being suspicious when the driver displayed a "serial inability" to perform the simple breath test, especially since, by the driver's own admission, he did not inform the officer of any medical condition which might prevent him from performing the test. While New Hampshire allows a motorist asked to submit to a breath test to obtain blood testing at his own expense, but does not allow the motorist to make a choice between different forms of testing, leaving that up to the arresting officer's discretion.

     The officer's "legally authorized" decision to insist on the breath test over the motorist's objection, carried out without any knowledge of his asthma, is not, the court concluded, the kind of "conscience-shocking" act on which a substantive due process claim can be based.

     Depoutot v. Raffaelly, No. 05-1529, 2005 U.S. App. Lexis 21444 (1st Cir.).

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Towing service operator failed to show that new sheriff modified his towing area in retaliation for his support of another candidate for sheriff, or that the sheriff and his undersheriff engaged in a pattern of racketeering activity in violation of RICO in connection with maintenance of a list of favored tow service operators.

     A Lake County, Illinois towing business operator claimed that a new sheriff and one of his employees improperly modified his allocated towing area in retaliation for his support of another candidate for sheriff. The lawsuit also attempted to assert a claim for violation of the Racketeer Influenced Corrupt Organization Act (RICO), 18 U.S.C. §§ 1962(c) and 1962(d).

     A federal appeals court upheld summary judgment for the defendants, finding that no reasonable jury could find that the action was taken in retaliation for the plaintiff's support for the other candidate for sheriff.

     The county sheriff had a list of "approved" towers, each of which is assigned a particular territory within the county. When the department required the services of a tow truck, the sheriff's dispatcher calls the towing company of the vehicle operator's choice, but if no tower is specified, the dispatcher calls the listed tower whose territory includes the location of the vehicle in question.

     The plaintiff had customarily purchased tickets for fundraisers for the incumbent sheriff, and had historically always supported the incumbent sheriff during elections, and had been assigned a specific towing territory which remained relatively unchanged from 1980 through at least 1999. When the incumbent sheriff retired in 1996, the undersheriff was appointed as his replacement for the remainder of the term, and he, in turn, delegated responsibility for all towing matters to his replacement as undersheriff. In 1997, the new sheriff began a campaign to be elected to a new term in his own right.

     While the plaintiff initially supported the campaign of the new sheriff, he later decided to switch his support to the sheriff's challenger in the primary election, after hearing a rumor that another towing company "had the ear" of the new sheriff, and was working to exclude his company from a new towing area coming open due to another operator being dropped from the list.

     The new sheriff, however, won the primary election, and shortly thereafter, the plaintiff made a donation to his general election campaign. Subsequently, in early 1999, the new sheriff decided to change the towing boundaries, and discussed the matter with the undersheriff. The plaintiff, and at least four other towers experienced changes in their towing boundaries, and the plaintiff believed that his business suffered "significant loss" of territory as a result.

     The plaintiff claimed that he and his business were unlawfully punished for supporting the sheriff's primary opponent and that the sheriff and undersheriff operated a corrupt "pay-for-play" system for towing in the county, in which they intimidated towing operators into donating money to the sheriff's campaign to remain on the towing list and solicited bribes from towing operators seeking to buy a spot on the approved list.

     While the plaintiff's support of the sheriff's primary opponent was constitutionally protected, the appeals court found, he presented very little evidence that his political support of the opponent was a "substantial or motivating" factor in the modification of his towing area. Instead, he merely showed that his towing area changed at some point after he failed to support the sheriff in the primary, and that the sheriff's department lacked written guidelines for devising towing areas, allegedly giving the sheriff "opportunity" to punish dissenters and reward supporters.

     The appeals court ruled, on the basis of the record, that "no rational jury" could conclude that the sheriff modified the plaintiff's towing area in retaliation for his support of the primary opponent. The court pointed to a "substantial lapse in time" between the plaintiff's support of the primary opponent and the alleged retaliation--almost fourteen months. "Such a long stretch between the protected conduct and alleged retaliation significantly weakens any inference of a causal connection."

     Further, the court noted, the plaintiff and his brother were not the only towing operators whose assigned areas were changed under the new plan, and one company which donated even more money than the plaintiff did to the primary opponent had their area modified "slightly or not at all." One company that supported the sheriff's primary opponent, the court argued, actually had its area increased under the new plan. Further, while the plaintiff complained about the reduction of his area, claiming a "significant loss," his company still ranked either second or third among all twelve listed towing companies since 1999 in terms of volume of business generated by sheriff's department referrals.

     The appeals court also noted that there were no local laws, regulations or guidelines that required the sheriff to maintain a list of favored towing operators, let alone that he do so in a prescribed manner. The fact that the plaintiff had some First Amendment protection did not mean that he had some "constitutional guarantee to a particular towing area."

     The appeals court further found that no rational jury could find for the plaintiff on the RICO claims either. The court stated that it was no surprise that the towers made up a disproportionate percentage of the sheriff's campaign contributions, given the long practice of maintaining a list of approved towers.

This is the very nature of politics, and in the absence of evidence indicating some wrongdoing independent of legal solicitation of campaign contributions, this proportional disparity is evidence of nothing.

     Illinois state law expressly allows for solicitation of political contributions from companies such as the plaintiffs, so that "merely accepting cash is not evidence of extortion, especially when there is no separate evidence of an explicit, promised quid pro quo." The plaintiff failed to show a pattern of racketeering activity, as required for a RICO claim.

     The trial court had also awarded the defendant county and sheriff $110,331.50 in attorneys' fees and $4,154.74 in costs, based on a finding that the plaintiff's claims against them were frivolous. The appeals court found that the claims against the sheriff, while ultimately found to be too weak to support liability, were not frivolous, but that claims against the county, which was dismissed as a defendant earlier in the proceedings, were frivolous, entitling it to an attorneys' fees award under 42 U.S.C. Sec. 1988. On remand, the trial court must determine the correct amount of attorneys' fees to award to the county.

     Roger Whitmore's Auto. Serv. v. Del Re, #04-1978, 2005 U.S. App. Lexis 20296 (7th Cir.).

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Assault and Battery: Batons/Nightsticks

     Officers did not use unreasonable force in employing swinging batons at waist level and then hitting striking workers who refused to disburse or move. Evidence showed that the crowd's violent behavior caused personal injuries and at least 91 incidents of property damage, and that the striking workers' behavior affected not only non-striking workers at the struck factory, but also persons on their way to work at another nearby business. Further, there was testimony that objects were being thrown at the officers as they started marching toward the strikers. Thurmond v. City of Huntsville, 904 So. 2d 314 (Ala. Civ. App. 2004).

Assault and Battery: Physical

     Jury properly awarded damages both for deputy sheriffs' excessive use of force against arrestee and for negligence under California state law in injuring him during the arrest while ousting him from an adult bookstore, as well as in reducing the negligence award for the contributory negligence of the arrestee. Prevailing plaintiff's time for filing a motion for an award of attorneys' fees was tolled (extended) pending the outcome of post-trial motions asking for a new trial. Bailey v. County of Riverside, #03-56545, 414 F.3d 1023 (9th Cir. 2005). [PDF]

     Man arrested during officers' response to domestic violence call failed to show that excessive force was used against him. While officers allegedly hit him about the neck, shoulders, and wrist with their nightsticks and wrestled him to the ground, the arrestee refused to cooperate with the officers, fought with them, disarmed one of them, and grabbed a second officer by the groin. Under these circumstances, the amount of force used by the officers was not objectively unreasonable. Plaintiff arrestee also failed to establish, as he claimed, that the city had a "widespread practice" of abusing "men of color" who dated white women. McLaurin v. New Rochelle Police Officers, #03 CIV. 10037, 373 F. Supp. 2d 385 (S.D.N.Y. 2005).

     Defendants in arrestee's excessive force lawsuit were not entitled to a stay in the proceedings until after the criminal proceedings against him were concluded. The excessive force claims had no bearing on the particular criminal charges against the arrestee. The court rejects, as valid reasons for a stay, the fact that the plaintiff arrestee could obtain, through the discovery process in the civil lawsuit, access to materials he would not otherwise obtain in the course of defending his criminal case, and the fact that he could, while the criminal prosecution was ongoing, assert his Fifth Amendment privilege against self-incrimination in refusing to respond to the defendants' discovery requests in the civil case. Scheuerman v. City of Huntsville, Alabama, No. CIV.A.CV-05-S-843, 373 F. Supp. 2d 1251 (N.D. Ala. 2005).

Defenses: Absolute Immunity

     State prosecutor and trial judge were both entitled to absolute immunity from liability from arrestee's claim that they conspired together to have him arrested on false charges by having an arrest warrant issued concerning traffic offenses which they allegedly knew had previously been dismissed. Lyghtle v. Breitenbach, No. 04-3296, 139 Fed. Appx. 17 (10th Cir. 2005).

Domestic Violence

     Deputy sheriff was not liable for failing to arrest man allegedly suspected of fighting with his girlfriend, who subsequently murdered her, since the duties imposed on him under a Kentucky domestic violence statute were discretionary. Plaintiffs also failed to show that the deputy had "created" or enhanced the danger to the girlfriend for purposes of the "state-created-danger" doctrine. Howard v. Bayes, No. CIV.A. 7:02-204, 378 F. Supp. 2d 753 (E.D. Ky. 2005).

False Arrest/Imprisonment: Mental Illness Commitment

     Officers who were aware that a man had made threats to "blow out his brain" with a gun and expressed threats of physical violence towards others did not violate his Fourth Amendment rights or Missouri state law in placing him on a 96-hour psychiatric hold at a hospital. The detainee also failed to show that the officers used excessive force in restraining him, as he himself admitted that he resisted them when they attempted to take him into custody, requiring them to restrain him through force and handcuff him. Additionally, his restraint only caused minor cuts and abrasions. Lacy v. City of Bolivar, Missouri, No. 04-2702, 416 F.3d 723 (8th Cir. 2005). [PDF]

False Arrest/Imprisonment: No Warrant

     Officer had probable cause to arrest a man for allegedly violating an order of protection when the alleged victim filed a sworn complaint that he was harassing her via telephone and e-mail. The officer acted properly, verifying the existence of the protective order and viewing the threatening e-mails allegedly sent by the arrestee, and the officer could reasonably have believed that the e-mails were sent by the arrestee, even though it turned out that they were "fakes" sent by someone else bearing the arrestee's e-mail address. McLaurin v. New Rochelle Police Officers, No. 03 CIV. 10037, 379 F. Supp. 2d 475 (S.D.N.Y. 2005).

     Officers had probable cause to arrest suspect for alleged heroin distribution based upon tip from informant, although uncorroborated, and the fact that the suspect fled upon the officers' approach. Bradley v. Village of Greenwood Lake, No. 04CV973, 376 F. Supp. 2d 528 (S.D.N.Y. 2005).

False Arrest/Imprisonment: Warrant

     Detective who prepared arrest warrant which was issued on the basis of his "conclusory" claim that the arrestee had transported her fugitive son, sought on a rape charge, to another location to escape arrest could not rely on the warrant to justify an arrest. His statement was insufficient to provide probable cause to arrest the mother for hindering the apprehension of her son. Butts v. City of Bowling Green, No. 1:04CV-129, 374 F. Supp. 2nd 532 (W.D. Ky. 2005).

     Deputy sheriffs were entitled to qualified immunity for their arrest of a man under a bench warrant issued by a judge in connection with child support proceedings, despite the erroneous nature of the warrant, since it was facially valid and they had no reason to believe otherwise. Cogswell v. County of Suffolk Deputy Sheriff's Dept., No. 02CV 4281, 375 F. Supp. 2d 182 (E.D.N.Y. 2005).

     Officers had qualified immunity from liability for arresting a man for alleged sexual assault, false imprisonment, and harassment of a co-worker based on the alleged victim's "credible" account which was supported in part by hotel records, and the fact that a trial judge signed an arrest warrant based on these submitted facts. Mitchell v. Obenski, No. 04-3730, 154 Fed. Appx. 548 (3rd Cir. 2005). [PDF]

     U.S. marshal acted reasonably in mistakenly arresting a woman in her apartment while executing a valid arrest warrant for another person. The defendant marshal had grounds to believe that the suspect sought lived in the arrestee's building and acted reasonably in relying on the building manager's identification of the tenant when shown pictures of the suspect sought. Favors v. U.S., No. 04-1069, 137 Fed. Appx. 493 (3rd Cir. 2005). [PDF]

Firearms Related: Intentional Use

     Factual issues concerning whether or not a man was holding a toy gun or otherwise threatening an officer before the officer shot and killed him barred granting summary judgment on the basis of qualified immunity to the officer in the surviving family's federal civil rights lawsuit. Finks v. City of North Las Vegas, No 04-15806, 135 Fed. Appx. 976 (9th Cir. 2005). [PDF]

     Officer's shooting and killing of man's pet dog was not an unreasonable seizure under the Fourth Amendment. The officer could have, under the circumstances, reasonably believed that the dog posed an imminent threat to his safety, based on its weight of 55 to 60 lbs, its speed in traveling 15 feet in five seconds, and the fact that it would have reached him in five seconds had he not shot it. While the dog owner did yell that the dog would not hurt the officer, the officer did not have to wait until the dog was within biting range before taking action to protect himself. Dziekan v. Gaynor, No. 3:03CV1486, 376 F. Supp. 2d 267 (D. Conn. 2005).

     Sheriff who shot and killed a man while responding to a dispatch call about an armed and possibly suicidal person acted in an objectively reasonable manner when the man had grabbed and raised his rifle and struggled with the sheriff for possession of the rifle as the sheriff sought to disarm him. Under the circumstances, the sheriff could reasonably believe that his own life was in danger. Burnette v. Gee, No. 04-5551, 137 Fed. Appx. 806 (6th Cir. 2005). [PDF]

     When officers shot at motorist's car leaving the scene after the occupants ignored orders to exit their vehicle, and hit the car, but not any of its occupants, resulting in the motorist leaving unimpeded, the occupants were not "seized" within the meaning of the Fourth Amendment, so an occupant's excessive force claim had to be analyzed under the Fourteenth Amendment's "shocks the conscience" due process legal standard rather than the Fourth Amendment's reasonableness standard. In this case, the plaintiff did not appeal the trial court's conclusion that the officers' conduct did not "shock the conscience," but unsuccessfully argued that it was excessive and unreasonable because the Fourth Amendment applied. Ferrante v. Peters, No. 04-3459, 135 Fed. Appx. 846 (6th Cir. 2005). [PDF]

     New York intermediate appellate court upholds jury's award of $1,375,799.06 for lost earnings and pain and suffering to the estate of a man shot and killed by officers when he peered out from where he was standing, after hearing the officers' shots ring out. The court found that there was evidence that the officers were aware that a "bystander" was on the street at "this wee hour of the morning," and that the man who had flagged them down had pointed out the decedent. Cusanelli v. New York City Transit Authority, 799 N.Y.S. 2d 36 (A.D. 1st Dept. 2005).

Freedom of Information

     A privacy exception to New York's freedom of information law applied to tapes and transcripts of calls made to the City's 911 emergency service on September 11, 2001 during the terrorist attack on the World Trade Center, and any public interest in the words of the callers was outweighed by the privacy rights of the callers and their surviving family members who wished the content of their calls to stay private. Communications between Fire Department dispatchers and other employees of the Department, however, were subject to disclosure under the law insofar as they contained instructions affecting the public or factual statements. Other portions of those communications were "intra-agency materials" protected from disclosure. New York Times Company v. City of New York Fire Department, 829 N.E.2d 266 (N.Y. 2005). [PDF]

Pursuits: Law Enforcement

     The question of whether a police high-speed chase of a stolen tow truck was reasonable was for a jury, and expert testimony was not required to determine whether the officers acted in reckless disregard for the safety of others in chasing the vehicle, which collided with a car, seriously injuring one of the occupants. Issues of highway safety and traffic laws were not matters outside of the common knowledge of the jury. New trial ordered on plaintiff's claims, overturning trial court's judgment as a matter of law for the defendants. Seide v. State of Rhode Island, No. 2003-521, 875 A.2d 1259 (R.I. 2005). [PDF]

Racial Discrimination

     Factual disputes concerning a traffic stop barred summary judgment for deputy sheriffs who stopped motorist who claimed that the stop was based on racial profiling rather than legitimate suspicion of violation of traffic laws concerning speeding. Court finds no basis, however, for claims against the county or sheriff as there was not a history of alleged race-based traffic stops, and the deputies involved had been trained to enforce laws without regard to race or ethnicity. Christopher v. Nestlerode, No. CIV. A. 104CV0977, 373 F. Supp. 2d 503 (M.D. Pa. 2005).

Search and Seizure: Home/Business

     Officer who entered a residence without a warrant to "make sure everything is ok" was entitled to qualified immunity based on a complaint concerning noise coming from within, the fact that no one responded to his knock, an unlocked door, and his knowledge of past disturbances and domestic violence incidents between the resident and her sister, and numerous other episodes of "eccentric" interaction between the resident and law enforcement during the past five to six month period. Burr v. Hasbrouck Heights Police Department, No. 04-1121, 131 Fed. Appx. 799 (3rd Cir. 2005). [PDF]

     City's inspection of dance clubs for fire code violations, building code violations, and under-age drinking were not Fourth Amendment "searches" when they took place while the clubs were open to the public for business, and inspectors did not go beyond the areas where the club's customers could go. 1064 Old River Road, Inc. v. City of Cleveland, No. 04-3541, 137 Fed. Appx. 760 (6th Cir. 2005). [PDF]

     Police officers' entry onto property to allegedly abate nuisances (such as housing code violations and drug activity) under a non-criminal administrative search warrant was a violation of the Fourth Amendment when it was issued by a court that lacked jurisdiction from any statute or municipal code section to issue it. Individuals who relied on the warrant, however, were entitled to qualified immunity, when prior case law concerning the invalidity of such warrants involved only state and not federal law. Factual issues remained, however, concerning whether the city could be held liable, under the circumstances, for federal civil rights violations. Bosteder v. City of Renton, No. 74934-5, 117 P.3d 316 (Wash. en banc. 2005).

     Officer did not violate rights of deceased man's girlfriend when he ordered her to stay outside the dead man's home while allowing the decedent's widow, who had been separated from him before his death, to enter and search the house and remove her property. The girlfriend, as a mere guest of the decedent, had no possessory interest in the house, and the officer was acting in a reasonable manner to merely keep the peace, rather than actively collaborating with the wife. Ostensen v. Suffolk County, No. 01-CV-05625, 378 F. Supp. 2d 140 (E.D.N.Y. 2005).

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     Annual Report:  Assessment of U.S. Government Activities to Combat Trafficking in Persons, September 2005 (9/30/05). [PDF].

     Publications: Intelligence-Led Policing: The New Intelligence Architecture presents key concepts in intelligence in law enforcement, including a succinct history, a summary of current issues, and an outline of what needs to be done in the future. U.S. Department of Justice, Bureau of Justice Assistance. (Sept. 2005). [PDF]

     Statistics: National Crime Victimization Survey, Bureau of Justice Statistics, September 2005 Presents estimates of national levels and rates of personal and property victimization for the year 2004. Rates and levels are provided for personal and property victimization by victim characteristics, type of crime, victim-offender relationship, use of weapons, and reporting to police. A special section is devoted to trends in victimization from 1993 to 2004. Estimates are from data collected using the National Crime Victimization Survey (NCVS), an ongoing survey of households that interviews about 76,000 persons in 42,000 households twice annually. Violent crimes included in the report are rape/sexual assault, robbery, aggravated assault and simple assault (from the NCVS), and homicide (from the FBI's UCR program). Property crimes examined are burglary, motor vehicle theft, and property theft. Highlights include the following: The rate of violent crime dropped 9% from the period 2001-02 to the period 2003-04. During 2004, 22% of all violent crime incidents were committed by an armed offender; 6% by an offender with a firearm. Between 2001-02 and 2003-04 violent crime decreased 17% in the West, from 31 to 26 victimizations per 1,000 persons age 12 or older. 9/05 NCJ 210674 (9/28/05) [PDF].

     Reference:

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

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