CONTENTS

Failure to instruct jury that it could impose punitive damages for officer's alleged excessive use of force against an arrestee if he acted in an "oppressive" manner required a new trial on the issue. Federal appeals court also orders recalculation of attorneys' fees award to determine whether hours plaintiff's attorney spent on unsuccessful claims were related to the time spent on the successful excessive force claim which resulted in $18,000 jury award of compensatory damages.

      In a case where a jewelry shop owner was awarded $18,000 in compensatory damages against a police officer who allegedly used excessive force against him during his arrest for operating an unlicensed pawn store, a federal appeals court has held that the jury should have been instructed that it could award punitive damages if it found that the officer acted in an "oppressive" manner.

     The arrestee was the shop manager of the jewelry store, which Compton, California police officers suspected of operating an unlicensed pawnshop. An undercover officer entered the store and managed to pawn a ring for $100. Three other officers then entered the store. The suspect was informed that he was under arrest, and handcuffed.

     The handcuffs were removed, however, in order to allow the arrestee to retrieve the pawned ring from a safe. When he reached inside, however, one of the officers yelled at him to stop, and another officer pulled him away from the safe. When the arrestee leaned forward again to reach into the safe, an officer pulled him back, knocking him to the floor. As he was pushed to the floor, he was holding the allegedly pawned ring.

     During a struggle between the arrestee and three officers, one allegedly struck him in the groin area in order to incapacitate him, doing so either with his fist or with a kick, and then punching him in the face. The arrestee also claimed that the officers stepped on his head and his hand, and finally subdued him when one put him into a carotid restraint (a chokehold) and handcuffed him again. The arrestee subsequently lost consciousness and was taken to a hospital for medical attention. There were allegedly bruises and pain in his chest, shoulders, neck, arm, hand, mouth, and groin, and blood in his urine.

     The arrestee sued, and a jury found one of the officers liable for excessive force, awarding $18,000 in compensatory damages. The trial court declined to give a requested punitive damages jury instruction including a clause stating that an act "oppressively done" could be a basis for punitive damages, saying that this was an "inaccurate statement" of the law. The court instead gave the jury the Ninth Circuit Model Civil Jury Instruction 7.5 on the subject, which states:

If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that defendant's conduct was malicious, or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety, rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law.

     After deliberating separately on the issue, the jury declined to award punitive damages. The trial court awarded attorneys' fees and costs of $134,000 and $908.25 respectively. This was a reduction from the plaintiff's request for $250,000 in fees and $2,030 in costs. The attorneys' fee reduction was based on reducing the hours included by 25% and reducing the hourly rate for the plaintiff's lawyer from $550 to $400 per hour.

     The federal appeals court ruled that the trial court erred in stating that oppressive conduct is not a proper basis for punitive damages, and that the omission of "oppressive acts" from the jury instructions rendered it "incomplete."

     The court stated that malicious, wanton, or oppressive acts or omissions are all within the boundaries of traditional standards for assessing punitive damages, and that such awards promote "deterrence and punishment" over and above that provided by compensatory damage awards. "Such acts are therefore all proper predicates for punitive damages under § 1983."

     The punitive damages instruction provided, the appeals court found, did not cover the plaintiff's theory that the officer acted oppressively in striking and subduing him. An act or omission is oppressive, the appeals court stated "if done in a manner which injures or damages or otherwise violates the rights of another person with unnecessary harshness or severity as by misuse or abuse of authority or power or by taking advantage of some weakness or disability or the misfortunes of another person." The appeals court found that a defendant's alleged misuse of authority or power or exploitation of a plaintiff's weakness is "qualitatively different than a defendant's act that is malicious or in reckless disregard of the plaintiff's rights."

     While an action may be malicious or reckless and also oppressive, the court noted, "oppressive conduct is sufficiently distinct to warrant a separate instruction." In this case, the court found, a jury could reasonably have found that the officer's use of force in the course of the plaintiff's arrest took advantage of the officer's authority and power, and the plaintiff's relative weakness. The record showed that the plaintiff was positioned close to the floor when the fight began because he was ordered to open the safe and that he was injured during the course of a struggle with three officers. The court concluded that the error in failing to instruct the jury on "oppressive" conduct was not harmless and that a jury might have, on that basis, awarded punitive damages.

     A new trial was therefore ordered on the issue of punitive damages.

     On the attorneys' fee award, the appeals court found that the trial court improperly failed to consider whether hours spent by the plaintiff's attorney on claims against defendants who were dismissed from the case, and unsuccessful claims of false arrest, illegal entry, and unreasonable search and seizure were related to the successful excessive force claim. The fee award was therefore vacated for further proceedings to determine whether the unsuccessful claims were related to the successful excessive force claim and to determine the reasonable hours expended applying the correct standard. At the same time, the appeals court rejected the argument that the reduction of the hourly rate for the plaintiff's attorney was an abuse of discretion.

     Dang v. Cross, No. 03-55403, 2005 U.S. App. Lexis 17981 (9th Cir.).

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Florida father, in being allegedly erroneously labeled as a "verified" child abuser, even if it did prevent him and his wife from adopting additional children, did not suffer deprivation of a constitutionally protected due process liberty or property interest. His claim was merely for defamation and injury to reputation, standing alone, cannot be the basis for a federal civil rights lawsuit.

     A Florida man claimed that several current and former employees of the Florida Department of Children and Families (DCF) erroneously labeled him a "verified" child abuser, and that this "stigmatizing information" resulted in his inability to adopt another child. He alleged that this violated his procedural and substantive due process rights under the Fourteenth Amendment. A federal trial court dismissed the lawsuit, finding that the plaintiff failed to allege the deprivation of a constitutionally-protected liberty or property interest, and a federal appeals court upheld this result.

     The man and his wife had both a biological daughter and an adopted son, and were hoping to add to their family through further adoption. One day, when the man was carrying his adopted son, he accidentally tripped over a child safety gate in his home, and the then nine-month-old child suffered a head injury. At a hospital emergency room, the DCF was notified of "possible child abuse," and "put a hold" on the child, delaying the release of custody to his parents pending civil and criminal investigations.

     The criminal investigation was closed based on a finding that the "child abuse" was unfounded and/or accidental, and a Florida court dismissed the civil proceedings, finding that child abuse was not shown by a preponderance of the evidence. Despite this, the DCF "verified" the child abuse allegations against the man.

     The man and his wife were subsequently unsuccessful in attempts to adopt another child, and believe that it was because his reputation was damaged by his classification as a "verified" child abuser, and the placement of his name on the Child Abuse Registry.

     In rejecting the plaintiff's due process claims, the federal appeals court noted that the U.S. Supreme Court has held that injury to reputation, by itself, does not constitute the deprivation of a liberty or property interest protected under the Fourth Amendment, citing Paul v. Davis, 424 U.S. 693 (1976). Such claims may amount to defamation under state law, but are not actionable in a federal civil rights lawsuit, unless there is something more than the "stigma" caused by reputation damaging statements.

     The appeals court agreed that there was no doubt that DCF "stigmatized" the plaintiff when it "verified" the child abuse allegations against him. But if it only defamed him--without depriving him of any "right or status" recognized under state law--then the damage did not rise to the level of a constitutional deprivation.

     In this case, however, the plaintiff failed to show that Florida law granted prospective adoptive parents the right to adopt an unrelated child, and, in fact, Florida courts had previously held that "no such right exists." And the fact that the plaintiff and his wife had previously been approved to adopt their son did not confer on them any right to adopt additional children.

     Accordingly, the plaintiff's claim amounted to one for defamation, which cannot be the basis, standing alone, in a federal civil rights lawsuit.

     Behrens v. Regier, No. 04-14820, 2005 U.S. App. Lexis 18807 (11th Cir.).

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Police captain who led "sting" operation in which persons with outstanding arrest warrants were invited to a phony "job fair" to be arrested was entitled to qualified immunity in lawsuit by woman mistakenly arrested there who merely drove her boyfriend to the event and who had no criminal record or outstanding warrant.

      During a "mass arrest sting" designed to capture a large number of persons with outstanding arrest warrants, a woman with no prior criminal record, and who had never been subject to any arrest warrant, was allegedly mistakenly swept up in the arrest. She filed a federal civil rights lawsuit against the City of Boston, and a number of arresting officers. Summary judgment was granted to the city, but the rest of the case went to trial, and the plaintiff prevailed against a police captain who planned and commanded the operation and was the arresting officer. The jury awarded nominal damages of $1. The trial court set aside the jury's verdict, however, entering judgment notwithstanding the verdict for the captain on the basis of qualified immunity. A federal appeals court upheld this result, finding that an objectively reasonable officer could have believed, under the circumstances of the case, that his conduct would not violate the Fourth Amendment, even though the jury was entitled to conclude that the arrest was an unreasonable seizure.

     The plaintiff, an 18-year-old female student with no criminal history, and her boyfriend, received a letter in the mail. The letter, addressed to the boyfriend, purported to come from a representative of a company that was planning to act as a job broker to hire a large number of people for work on a construction project. The letter invited the boyfriend to attend a job fair on Sunday at an expo center in Dorchester, Massachusetts. The plaintiff was excited by the prospect of stable, long-term employment for her boyfriend, and encouraged him to attend.

     She drove him to the "job fair" and accompanied him into the lobby. When the boyfriend went to check in at a registration table, she went to a nearby vending machine to purchase soda. She then saw that two or more men had tackled her boyfriend, thrown him to the floor, and yelled that he was under arrest, taking him away. She approached some of the officers and asked what was happening, and they instructed her to go into the hall and "nudged" or encouraged her in the direction of the doors. She complied and entered the hall, where approximately 105 people were seated, along with her boyfriend and a larger number of police officers.

     The defendant captain told the entire assembled audience, from the podium, that they were all under arrest, and should sit calmly, which the plaintiff did. The "job fair" had been set up as a "sting" operation to arrest individuals who had outstanding arrest warrants. Approximately 14,000 letters had been sent out inviting persons who it was believed had outstanding warrants to attend. 200 people had indicated that they planned to attend.

     In response to a question about what would happen to arrestees who did not actually have an outstanding warrant, the captain allegedly responded that police would "square that away later." When the plaintiff informed an officer that she had only come to the "job fair" to drop off her boyfriend, and asked him to check to see that there was no warrant for her arrest, he told her to sit down. The captain subsequently spoke to both her and another arrestee who claimed he had no warrant, and told them that they would be free to leave if their story checked out.

     Despite this, she was handcuffed and taken to a table for processing. When she was called to the table, there was no folder for her, and an officer asked her if she had any aliases. Further checking was done on a computer system, and the captain determined that she should be released. It took approximately 30 minutes, however, both to write out an incident report, and to await a "cuff cutter" who could cut off her plastic handcuffs, at which point she had been in custody for a little under two hours. Outside, she was released, and found her boyfriend, who, in turned out, did not have an outstanding warrant either. The vast majority of the 105 attendees at the job fair, however, did have valid outstanding warrants.

     The appeals court noted that the case was unusual since there was no warrant for the plaintiff's arrest, and no officer purported to have drawn the conclusion that a crime had been committed and that the plaintiff was likely to be one of the perpetrators.

     Under these circumstances, the appeals court reasoned, there was no probable cause for her arrest, and the arrest plainly violated the Fourth Amendment. The mere fact that "most of the other people" in the room did have warrants for their arrest did not provide probable cause for the plaintiff's arrest.

     The appeals court also found that case law, prior to the 1999 date of the arrest, gave police officers "ample warning that arresting and detaining someone incorrectly swept up in a mass arrest sting aimed at individuals with outstanding arrest warrants would violate her Fourth Amendment rights," since if it was clearly established that the Fourth Amendment prohibits an arrest based on a warrant that was once valid but has since been clear, it is obviously "clearly established that the amendment proscribes an arrest based on a warrant that never existed in the first place."

     At the same time, the court found, those in the hall were supposed to have been carefully screened at the registration tables to make sure that they were only persons with outstanding arrest warrants. That made it objectively reasonable for an officer in the captain's position to believe that arresting the plaintiff would not violate the Fourth Amendment. The reasonableness of her continued detention, of course, diminished when officers became aware that the carefully prepared processing table inside the hall contained no folder or photograph for her, but officers could have believed that her folder had been misplaced, so that it was not objectively unreasonable to delay releasing her from custody pending final verification of her status, the court ruled.

     The appeals court found that the captain was therefore entitled to qualified immunity, even for the remaining thirty minutes at the end that it took to release the plaintiff from custody. The captain did order her release as soon as it was clear that there was no warrant for her, and the subsequent delay arose only from routine paperwork and the need to obtain implements to cut her cuffs.

     The appeals court upheld summary judgment for the city, finding that the operation and the plaintiff's mistaken arrest were not carried out pursuant to an official municipal policy.

     Wilson v. City of Boston, No. 04-1310, 2005 U.S. App. Lexis 18847 (1st Cir.).

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Iowa deputy violated due process rights of non-custodial father when he removed 12-year-old visiting daughter from his home after seeing her in the presence of an accused sexual offender, and failed to notify juvenile court of the removal. Father had a protected liberty interest in connection with his daughter's visitation. Jury improperly awarded $30,000 in punitive damages, however, based on improper jury instructions that failed to require a showing or either evil motive or reckless indifference to protected federal rights.

     A Woodbury County, Iowa deputy sheriff was serving warrants when he saw a 12-year-old girl in the presence of a man whom he knew to be facing sexual abuse charges. The deputy knew the child and knew her father (not the accused sexual abuser) because he was a friend of the child's mother, the father's ex-wife. The child was in the area, at her father's house, for the start of a two-week, court-ordered visitation. Concerned about the child's presence with the accused sexual offender, the deputy called a county prosecutor and asked if he could perform an emergency removal of the child.

     The prosecutor allegedly told the deputy that he could remove the child from the father's custody if he could articulate the basis for his decision to do so. Following this, the deputy drove to the father's house, and in his presence, removed the daughter. He told his supervisor of the incident and asked him to call the prosecutor's office and the state Department of Human Services, to inform them of the removal, but did not call the juvenile court or ask his supervisor to do so. He then returned the girl to her mother, the custodial parent, without informing the father of this.

     The father subsequently sued the county and the deputy for allegedly violating his Fourteenth Amendment substantive and procedural due process rights by removing his daughter from his care. The jury found in favor of the deputy on the substantive due process claim, but on the procedural due process claim found for the plaintiff father, awarding him $1 in nominal damages and $30,000 in punitive damages.

     A federal appeals court upheld the jury's verdict, finding that the father had a protected liberty interest that was violated, but also found that the plaintiff was not entitled to punitive damages under the facts of the case.

     The appeals court noted that under Iowa state law, a police officer who removes a child is required to inform the juvenile court of the emergency removal immediately. The deputy argued, however, that the Constitution did not guarantee the father any procedure, including a post-removal hearing, because it did not protect his right, as a non-custodial parent, to visit with his daughter.

     The appeals court disagreed, stating that if a state court gives a non-custodial parent visitation rights with a child, that parent possesses in some form, a liberty interest.

A parent with visitation rights takes part in raising the child by making decisions about care, custody, and management during the period of the visitation, and thus he or she has the sort of parental role that deserves to be protected as a liberty interest.

     In this case, the girl was scheduled to be with her father for two weeks, and not just a few days, the court noted. It found no reason to think that this period of deprivation was too short to be viable for purposes of a due process claim.

     Despite a subsequent contempt hearing that was in fact held by the juvenile court concerning the incident, the appeals court still found that the father did not "receive all of the process to which he was entitled." It found that the father was deprived of the opportunity to be heard at a meaningful time because the hearing occurred seventeen days after the removal. The "relative tardiness" of that hearing, the court commented, was "evident" when one recognizes that it occurred after the father's two-week visitation period would have ended had it not been cut short by the removal.

To put the matter otherwise, if seven days is too long for a car owner to wait for a post-deprivation hearing after his or her car has been towed and impounded, as a matter of law, a parent should not have to wait seventeen days after his or her child has been removed for a hearing.

     The appeals court found that the deputy knowingly deviated from the duties specified in Iowa state law concerning what a police officer is to do following the emergency removal of a child. The statute in question required the officer to bring the child to a place designated by court rules, make a reasonable effort to inform the parent or guardian (presumably from whom the child was taken) of the whereabouts of the child, immediately orally inform the juvenile court of the emergency removal and the circumstances surrounding it, and provide a written version of the information orally conveyed to the court.

     Despite this, however, the plaintiff was not entitled to punitive damages, which may be imposed in a federal civil rights case only when the defendant's conduct is motivated by "evil motive or intent" or involves "reckless or callous indifference" to federally protected rights. There was no allegation of evil motive or intent, and no evidence that the deputy subjectively knew that he was violating the plaintiff's federally protected rights or might be doing so.

Why would a jury, presumably composed of reasonable people, reach an unreasonable result? The answer can be found in the jury instructions. One of the instructions reads, "if you find the conduct of the defendant was recklessly and callously indifferent to the plaintiff's rights to have the Iowa Code followed when his daughter was removed, you may award punitive damages." This is an incorrect statement of law because federal law is what counts, not the Iowa Code: as pointed out earlier, the Iowa Code does not mimic federal law; it requires more in some regards. But if it were a correct statement of law, the jury's verdict would be reasonable in light of the evidence introduced at trial.

     Swipies v. Kofka, No. 04-3244, 2005 U.S. App. Lexis 16861 (8th Cir.).

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Mother of 30-year-old man shot and killed by police officer following traffic stop had no constitutionally protected due process right to the companionship of her son which could be the basis for a federal civil rights claim on her own behalf.

     A federal trial court dismissed the federal civil rights claim of a mother arising out of the death of her 30 year-old son who was allegedly killed by a City of Gainesville, Florida police officer during a traffic stop. She claimed that she suffered a deprivation of her constitutionally protected liberty interest in a continued relationship with her adult son.

     Noting that the issue had not previously been decided by it, a federal appeals court held that the Fourteenth Amendment's substantive due process protections do not extend to the relationship between a mother and her adult son, so that the trial court's dismissal of the mother's claims was appropriate.

     The case involved a motorist, the plaintiff's son, who was pulled over in a traffic stop by the officer. The officer allegedly did not use his police sirens to pull the vehicle over, nor did he use any lights to illuminate the motorist's car. When the officer approached the car, he allegedly brandished his gun and struck the window with it, and then moved in front of the car and pointed the gun at him. The motorist then allegedly started to drive away in the opposite direction, and the officer fired his gun seven times, hitting the motorist with four bullets, and causing his death a few hours later.

     The decedent's estate reached a settlement with the officer and the city, and the settlement agreement stated that this did not release any claims held by his mother.

     In upholding the trial court's rejection of the mother's claims, the appeals court noted that the son was an adult, not a minor, so that her claims were not supported by prior cases concerning state interference with a parent's raising or custody of a child. The court also found that there was no federal constitutional right of companionship with an adult child.

     The court stated that it did not mean to minimize the loss of an adult child as compared to a minor child.

The loss of a child at any age, under any circumstances, is one of the most difficult experiences a parent can endure. While the parent/adult child relationship is an important one, the Constitution does not protect against all encroachments by the state onto the interests of individuals. Instead, it is the province of the Florida legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority through an unsupported reading of the Fourteenth Amendment.

     Robertson v. Hecksel, No. 04-12367, 2005 U.S. App. Lexis 17201 (11th Cir.).

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Dismissal of plaintiff's suit under the Federal Tort Claims Act is affirmed where a reasonable factfinder could conclude that plaintiff has failed to show that defendants assaulted or maliciously prosecuted him under Ohio law.

     A former Olympic and professional boxer, who received a gold medal at the 1968 Olympics, arrived at the Cleveland Ohio airport on a flight from Fort Lauderdale, Florida, wearing a jogging suit and tennis shoes and carrying a briefcase, but wearing no overcoat, despite the January time of year. Several plain-clothes federal agents were present scanning the airport for suspicious persons and activity. Because the Drug Enforcement Agency (DEA) has designated Fort Lauderdale as a "source city" for drug trafficking, they monitored the passengers of the boxer's flight as they exited the aircraft.

     The boxer immediately went outside the airport to look for the man who was picking him up. One of the agents noticed him because he walked rapidly through the airport while looking around and was not carrying an overcoat despite the cold temperature. The agent associated these characteristics with a drug courier profile, and two agents followed the boxer to the baggage claim area.

     One agent approached the boxer and identified himself, but the boxer declined to speak with him. Agents continued to observe him as he retrieved some luggage. The boxer allegedly said something like: "I don't appreciate you and your monkeys following me and if you keep it up I'll rip your head off." He subsequently allegedly pushed one of the officers in the chest, resulting in his arrest. He was subsequently handcuffed to a chair and questioned. No contraband was found in his briefcase or bag. He was later acquitted on charges of assault on an officer.

     He sued the U.S. government under the Federal Tort Claims Act (FTCA), 28. U.S.C. Sec. 2676, which allows claims for liability against the government on the basis of actions by federal employees if their conduct would have violated state law. A federal appeals court, ruling that a reasonable factfinder could fairly conclude that the plaintiff had failed, under these circumstances, to prove that the individual defendants assaulted or maliciously prosecuted him under Ohio law, upheld the trial court's rejection of the FTCA claims on the merits.

     The appeals court disagreed with the argument that the federal agents maliciously charged him with assault, resisting arrest and aggravated disorderly conduct, the initial charges brought against him. The court noted that the trial court, as factfinder, had found no evidence that they brought these charges with malice, and the appeals court itself ruled that the plaintiff had not established the lack of probable cause for any of the three charges. Additionally, the plaintiff was subsequently indicted by a grand jury on the assault charge, which provided prima facie evidence of probable cause which the plaintiff had not tried to rebut by showing any irregularity in the grand jury proceedings.

     While the agents were mistaken in suspecting the plaintiff of being a drug courier, the agents testimony that, as they attempted to place him under arrest, they could "feel him resisting and trying to get loose" was sufficient to support a finding of probable cause for a charge of resisting arrest.

     The appeals court also rejected the plaintiff's argument that the agents committed assault or battery against him under Ohio state law. "The only physical contact was the shoulder-tapping, hand-holding and handcuffing, all of which agents may lawfully do when arresting an individual." Additionally, while the plaintiff claimed he had apprehension or fear when a drug sniffing dog was brought into the room where he was being questioned, and that this amounted to an assault or battery, the trial court "did not believe" his testimony regarding these events.

     Harris v. U.S., No. 04-3520, 2005 U.S. App. Lexis 19058 (6th Cir.).

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City's ordinance requiring permits for public parades or demonstrations was in violation of the First Amendment because it contained a 30-day application period, it applied to small groups which would not involve traffic or crowd control issues, and it imposed strict liability on all participants, imposing punishment even on those unaware that a particular demonstration had no permit.

     The American-Arab Anti-Discrimination Committee (ADC) and an individual previously prosecuted for violating the terms of a Dearborn, Michigan ordinance that regulates parades and demonstrations on city streets and sidewalks filed a federal civil rights lawsuit challenging the constitutionality of the ordinance. Overturning a trial court decision in favor of the city, a federal appeals court found that the ordinance violated the First Amendment.

     The ordinance, enacted in 1989, provided that a permit was required for "any special event" upon public streets, parks or public areas of the city, "unless such activity is granted approval" by a resolution of the City Counsel. An application for such a permit has to be filed at least 30 days before an event. Such permits may include time, place and manner restrictions. Violations of the ordinance are punishable by fines of up to $500 or imprisonment for up to 90 days, or both.

     Approximately 200 people took part in a march and rally in Dearborn in 2002 to protest the actions of Israeli soldiers in the Jenin Palestinian refugee camp, and the march took place without a permit, in violation of the ordinance. The individual plaintiff in the lawsuit led the march at its beginning, and was subsequently charged with protesting without a permit. He pled guilty, but later moved to vacate that plea, dropping that motion in exchange for the city's agreement to forego seeking restitution. He and the ADC filed the lawsuit to challenge the constitutionality of the ordinance at a time when the U.S. war with Iraq was imminent, claiming that the ordinance would unconstitutionally restrict their ability to conduct a protest march after the war began, in violation of the First and Fourteenth Amendments to the U.S. Constitution, in particular because of the 30-day application requirement.

     The appeals court noted that requiring permits for marches or parades on the public way is a legitimate exercise of government authority, but further pointed out that time, place, and manner restrictions such as permit schemes "must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication."

     The appeals court found it "difficult" to characterize the 30-day notice period as a "necessity," particularly as the only apparent reason for that time period was that the city council, which voted on and issued the permits, only meets twice a month. "Such a substantial inhibition on speech cannot be justified by the city council's failure to respond to requests in a more timely fashion." The court noted that other cities required substantially less time to prepare for a march, with Boston only requiring three hours of advance notice, and San Francisco only 24 hours.

     The court also noted that, in practice, the city had previously, during the period from January 2000 to February 2003, actually allowed 12 special events to be held with less than 30 days notice, with the city waiving the 30-day notice, accommodating requests for processions on streets and sidewalks, and "apparently did so without incident."

     The appeals court rejected the argument that this practice of granting waivers from the 30 day application process made the ordinance constitutional. The ordinance itself contained no provision for any such waiver, and no standards were spelled out for how the city made its waiver decisions. The ordinance, the court found, was not narrowly tailored to serve significant governmental interests, and the 30-day notice provision was invalid on its face.

     The ordinance defined special events as "any walkathon, bikeathon, or jogging group or other organized group having a common purpose or goal, proceeding along a public street or other public right-of-way" in the city. The appeals court agreed with the plaintiffs that this provision was "breathtaking in its sweep," because it could be used to require "virtually any group of two or more persons" walking on a public right of way with a common purpose or goal to obtain a permit. The court therefore also ruled that the ordinance was overly broad because it applied to small groups.

     While the city had significant interests in crowd and traffic control, the court commented, these interests were not advanced by the application of the ordinance to small groups.

Because its language applies to small groups, sweeping too broadly and improperly defining the type of public processions which fall within the city's significant interests, Section 2 of the Ordinance is unconstitutional on its face.

     The appeals court rejected, however, the argument that the ordinance was unconstitutionally vague in stating that permits shall be granted for events as long as they would not "breach the peace" or unnecessarily interfere with the public use of the streets.

     The appeals court further ruled that by imposing strict liability on all participants in unpermitted parades and demonstrations, without any requirement that they know about the provisions of the ordinance or the fact that a particular gathering had no permit, the ordinance "chills" constitutionally protected speech.

Under the Ordinance, any person who unknowingly participates in a permitless march may be arrested, fined up to $ 500, placed in jail for ninety days, or both. More importantly, the Ordinance places the onus upon every participant to be aware of whether the march has a permit, and would hold any participant liable for its violation, even in cases where the participant was mistakenly advised that a permit was issued. A good-faith belief is no excuse, and thus the potential protester cannot rely upon the assurances of participants in the march. Rather, the potential protester would be well-advised to seek personal verification from a city official that the demonstration has been authorized, or run the risk of being thrown in jail. Requiring potential march participants to seek authorization from city officials before joining a public procession or risk being jailed is antithetical to our traditions, and constitutes a burden on free expression that is more than the First Amendment can bear.

     The appeals court noted that the city had other laws, including prohibitions on breach of the peace, disorderly conduct, or non-cooperation with official commands, which could be used if particular demonstrators or demonstrations became unruly.

     The appeals court rejected the argument that it should nevertheless uphold the ordinance based on the city's offering of a "narrowing" interpretation of it under which a permit would only be required if the demonstration was one which would require the providing of "additional services" by the city. The court noted that there was testimony in the case that when determining the need for police resources at a particular event, the issue of what message was being expressed, and whether it would be offense to other people or spark counter-protests was taken into account. This, the court reasoned, would result in unpopular marches requiring a notice period and approval, while a "popular march" of the same size would not.

     This would mean that the ordinance would improperly apply or not apply based on the content of the message, and the response of other citizens to the message's content, and essentially constitute a "heckler's veto."

     American-Arab Anti-Discrimination Comm. v. City of Dearborn, No. 04-1433, 418 F.3d 600 (6th Cir. 2005).

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Police officer's misrepresentations to teenager's mother that he would be questioned nearby and only for an hour concerning investigation into triple murder, allegedly made to obtain consent to his removal from the home, and resulting in him being taken to another county, interrogated for four hours, subjected to a polygraph exam, and being denied requests to leave, be with his mother, or see a lawyer, if true, would violate child's clearly established constitutional rights.

     Fire Department personnel found the bodies of a woman, her daughter, and her daughter's female friend inside a house on fire, and investigators subsequently determined that the fire had been deliberately set. Autopsies also revealed that each of the three decedents had suffered blunt-force trauma to the head. The woman's boyfriend and his 14 year old son had previously lived in the house, but the 14-year-old moved out a few months before the fire to live with his mother elsewhere.

     While investigating the fire and deaths, law enforcement personnel began to suspect that the 14 year old had committed the crimes in the household. They arrived at the home of the 14-year-old and his mother, and began to interrogate him. They asked the mother for permission to take her son to the local prosecutor's office for further questioning. When she initially objected, she was allegedly told repeatedly that her son would be back in an hour or "right back," and that it was not necessary for her to go with him.

     Once the youth was in an unmarked law enforcement vehicle, he was not taken to the local prosecutor's office, as represented to the mother, but instead to a prosecutor's office in another county, where an agent of the Tennessee Bureau of Investigation interrogated him for approximately four hours, he signed a second Miranda waiver (having previously signed one at his home), and he signed a consent for a polygraph examination. During the questioning, the agent allegedly conducted a polygraph examination, threatened the boy with life imprisonment, repeatedly called him profane names, and showed him pictures of the charred bodies found after the fire. He allegedly made repeated requests to go home, to be with his mother, and to speak with a lawyer, all of which were denied.

     Approximately six hours after the son was taken into custody, the mother was informed, via a phone call, that her son would not be returning home, and that to obtain his release she would have to obtain a court order. She subsequently claimed that the caller refused to tell her either where her son was or the reasons for his detention.

     He was placed in a foster home, taken into the custody of a state agency, and held there for more than three weeks, during which he was questioned by law enforcement officers on several occasions, before he was released to his mother pursuant to a court order. His father was subsequently indicted for the triple murder, and was convicted of three counts of first-degree murder and one count of aggravated arson.

     The son subsequently sued a number of defendants, including a police officer and the local police chief for violations of his constitutional rights. The complaint alleges that the defendants had conspired to deprive him of his constitutional rights, and that the police chief failed to properly train the defendant officer in the proper method to reasonably seize or obtain custody of a minor for interrogation. The trial court subsequently granted both the officer and police chief summary judgment.

     In overturning this ruling, the appeals court noted that neither the defendant officer nor any other law enforcement official had any judicial authorization to take the minor into custody when he was initially seized, and there was not probable cause to arrest him for the crime. The court also stated that the evidence in the record only indicated that the mother consented to her son being removed from the home after the officer falsely represented that he would be questioned close by and would be returned within an hour. Instead, he was taken for a one-hour drive to another county, interrogated for approximately four hours, and did not return until three weeks later.

     Even if there was consent, the court stated, the facts alleged showed that the detention "ceased to be consensual." Because the child was detained in police custody without probable cause, judicial authorization, or valid consent, the court held, his Fourth Amendment right to be free from an unreasonable seizure was violated. If the plaintiff minor was able to prove his allegations at trial, the court ruled, there would be sufficient evidence to impose liability on the officer.

     The appeals court also held that the officer was not entitled to qualified immunity, since a reasonable officer would have known that the child's clearly established constitutional rights were being violated.

     The appeals court also found that the trial court's grant of summary judgment to the police chief on the plaintiff's inadequate training claim was premature, and that the plaintiff should be allowed to conduct further discovery on the issue.

     Myers v. Potter, No. 04-6022, 2005 U.S. App. Lexis 19248 (6th Cir.).

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

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Seizure of trailers from a field on a man's property, even if the administrative warrant used to do so was invalid, did not violate his Fourth Amendment rights when the field was not within the curtilage of his home and the public could both view and access the area. Under these circumstances, the plaintiff had no reasonable expectation of privacy.

     Illinois state revenue agents, accompanied by county sheriff's deputies entered a man's property to execute a warrant authorizing the administrative seizure of several boats based on his failure to pay certain back taxes. After determining that the boats could not then be seized without damaging them, they instead seized several trailers which were present which also belonged to him, but which were not listed in the warrant.

     The man filed a federal civil rights lawsuit, claiming that this action violated his Fourth Amendment rights. A state court also ordered the return of the property. In the federal lawsuit, the trial court rejected the defendants' claims of qualified immunity and granted summary judgment to the plaintiff on liability, after which a jury awarded him $1,000 in damages.

     On appeal, the defendants conceded that the administrative warrant did not meet the requirements of the Fourth Amendment. The appeals court stated that, absent a valid warrant, the defendants would have violated the Fourth Amendment if the plaintiff had a legitimate privacy interest in the area in which the trailers were seized, i.e., if they were located within the "curtilage" of his home, where the warrantless entry into the area would violate his rights.

     In this case, however, the trailers were seized from a field surrounded by a fence and separated from the rest of the property. The trial court ruled that the inadequacy of the fence, along with the field's apparent use only for storage and the relatively unimpeded view from the street into the field meant that the field was not curtilage for Fourth Amendment privacy considerations. It further held that it was not clear that a reasonable agent or officer in 1995 would have understood that entering this field violated the plaintiff's constitutional rights.

     The federal appeals court upheld this result. Because the field was separated from the living area, used for nonresidential purposes, and open to the public both to observe and to access, the plaintiff had no reasonable expectation of privacy there, and the search therefore "did not implicate" his Fourth Amendment rights."

     Because the plaintiff failed to show the violation of a constitutional right, the defendants were entitled to qualified immunity.

     Bleavins v. Bartels, No. 04-2415, 2005 U.S. App. Lexis 17212 (7th Cir.).

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

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Police officer who ordered a landlord to open a door to an apartment so that a woman's ex-boyfriend could retrieve his possessions was not entitled to qualified immunity on woman's claim that he violated her Fourth Amendment rights by becoming actively involved in an ex parte private repossession.

     After a woman's relationship with her boyfriend deteriorated, she obtained an order of protection granting her exclusive right of possession of their apartment. Pursuant to that order, the boyfriend was required to immediately retrieve all of his belongings. The trial court denied a request that he be allowed to return to pick up furnishings and other items that would be difficult to remove during he first trip.

     The man's attorney sent a letter to the woman informing her that he would go to the apartment at a particular time to retrieve his remaining belongings. A copy of the letter was sent to the woman's landlord and to the local police department. A police officer was sent to the apartment at the time designated in the letter in order to "keep the peace" at the repossession, and the landlord was also present at that time. The woman, who claimed never to have received the letter, was not there.

     The officer allegedly directed the landlord to unlock the door so that the man could retrieve his property. After this was done, and when the woman returned, she found the apartment in "disarray," and claimed that many items were missing, including some not included in the ex-boyfriend's list of his property.

     She sued the officer, the landlord, the police chief, the police department, and the Township Board, claiming that her Fourth Amendment rights were violated. The trial court granted summary judgment for all defendants, and held that the officer was protected by qualified immunity because he "acted reasonably." The court also held that the landlord was not acting under color of law or in concert with the officer. The court also found no evidence of alleged inadequate training of the officer by the remaining defendants.

     On appeal, the federal appeals court reversed the summary judgment in favor of the officer, holding that a police officer actively involved in an ex parte private repossession of property may be engaged in state action in violation of the Fourth Amendment. It agreed, however, that the landlord, who opened the door at the direction of the officer, was not engaged in state action, and upheld the result as to the remaining defendants.

     The appeals court rejected the officer's argument that his conduct was not state action and that he was "merely" present at a private repossession. There was evidence, including the testimony of the landlord, that the officer directed the opening of the door, and that she never would have opened it without the officer's instructions. If this was true, the officer played a "principal role" in the entry and seizure of the property, and a reasonable jury could conclude that he used his public authority to help the ex-boyfriend gain entry and take the property from the apartment. The record supported a finding that he was not a "mere spectator."

     Additionally, the law was "unquestionably clear" at the date of the incident, September 1999, that the Fourth Amendment prohibited unreasonable searches and seizures of a person's home by the police without a warrant. The court also found that if the officer concluded that the woman had consented to the repossession merely on the basis of a copy of the letter, to which the woman did not respond (and which she claimed she never got) that was not reasonable. "A reasonable officer at least would have refused to assist with opening the door until he was satisfied that consent was given."

     That he was ordered to be present to keep the peace "should be irrelevant," the court stated, since his actions "went well beyond merely keeping the peace."

     Harvey v. Plains Township, No. 04-1148, 2005 U.S. App. Lexis 18756 (3d Cir.).

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

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Officers who allegedly knocked and announced their presence "simultaneously" with breaching the door to a residence to execute a search warrant were not entitled to qualified immunity in homeowner's lawsuit.

     During an investigation into a suspected drug operation by the New Orleans, Louisiana police, a search warrant was issued and executed for a married couple's home. The investigation involved several local, state, and federal officers. The search did not uncover any evidence of illegal activity, and the couple filed a federal civil rights lawsuit against those allegedly involved in the obtaining and execution of the warrant. They claimed that the officers utilized "stale information" to claim, in connection with the warrant application, that the husband's stepbrother had stashed drugs at the home. They also claimed that officers executing the warrant failed to comply with the Fourth Amendment's "knock-and-announce" rule.

     A federal appeals court held that two defendants were entitled to qualified immunity for claims based on the procurement of the warrant because neither of them prepared, presented, nor signed the application for the search warrant. But it found that there were material issues of fact as to the conduct of five defendant officers in the forcible entry of the home, so that the denial of qualified immunity to them was upheld.

     There were material issues as to whether these officers did in fact knock, and if so, whether they waiting long enough for the occupants inside to respond, in violation of the knock and announce rule of the Fourth Amendment. The plaintiffs claimed that the officers announced their presence "simultaneously" with breaching the door to the residence. The appeals court, therefore, ordered further proceedings on the claims against five officers for the forcibly entry into the home.

     Michalik v. Hermann , No. 03-30780, 2005 U.S. App. Lexis 17529 (5th Cir.).

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

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Parole agents who allegedly entered a home where a parolee resided in a rented room, without a warrant and without knocking and announcing their identity and purpose, were not entitled to qualified immunity. If the facts were as the plaintiff homeowner and his girlfriend claimed, the entry in this manner was an invasion of their privacy in violation of the Fourth Amendment.

     A unmarried couple rented a room in their residence to a state parolee, who had previously been convicted of criminal sexual assault against a minor. The parolee was on electronic monitoring. Parole agents subsequently entered the residence to search for the parolee, prompting the couple to file a federal civil rights lawsuit for violation of their Fourth Amendment rights for entering the home without a warrant and without knocking and announcing who they were.

     A federal appeals court overturned a grant of qualified immunity to the defendant officers, based on their alleged failure to comply with the Fourth Amendment's knock and announce rule in entering the residence.

     As a condition of his parole, the parolee had executed an agreement expressing his understanding that his residence could be searched at any time, and that he consented to such searches. He did not indicate that anyone else lived there, and the couple who rented him the room, although aware that he was on parole, had no knowledge of the agreement or its conditions.

     The parolee allegedly refused to allow the agents into the residence when they came there, informing them that he was renting a room and that the owner of the premises was not home, and would not want them to go inside. They left, after telling the parolee that they would return later that day, and that he should inform the homeowner of this. Later that day, after the couple had returned to the residence, the agents returned and allegedly entered the house through the unlocked front door. It was disputed whether or not they first knocked and announced their presence before entering. They then handcuffed the parolee.

     A discussion then ensued, lasting from thirteen minutes to an hour, at the end of which the parolee was released, and the homeowner signed a statement consenting to future searches of the residence.

     The federal appeals court, in overturning summary judgment for the agents granted by the trial court on the basis of qualified immunity, noted that unannounced entry into a home may be reasonable when there is a threat of physical violence to the officers, when it is necessary to apprehend an escaped prisoner, or when the officers have reason to believe that evidence would be destroyed.

     The appeals court assumed, for purposes of the appeal, that the plaintiffs' version of the incident was true and that the agents entered the home without knocking or announcing their presence and purpose, failing to comply with the knock and announce rule of the Fourth Amendment, and that the homeowner did not know their identity.

     In this case, the agents themselves did not claim that there was a threat of imminent danger to them or of destruction of evidence, or that they were in pursuit of an "escaped prisoner," which would excuse compliance with the knock and announce rule.

     The appeals court also rejected the argument that the homeowner consented to the entry by knowingly hosting a parolee. While the parolee had consented to the search of his residence, the homeowner did not know of this at the time of the entry.

     Under these circumstances, where there was no "exigency," it was an "unreasonable invasion" of privacy for the officers to fail to afford the parolee, the homeowner, or his girlfriend, who lived there, an opportunity to prepare for their entry, the court stated.

More importantly, the entry alleged presented significant dangers for the officers, who, in entering unannounced, exposed themselves to the risk that an occupant would mistake their entry for an invasion and reasonably would take defensive measures to protect himself from the perceived, though mistaken, threat.

     The appeals court stated its belief that if the facts were as the plaintiff stated, the agents could not reasonably belief that there was a justification for entry without complying with the knock and announce rule. They were therefore not entitled to qualified immunity.

     Green v. Butler, No. 04-2993, 2005 U.S. App. Lexis 18141 (7th Cir.).

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

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Assault and Battery: Chemical

     Officers did not use excessive force in utilizing pepper spray against suspect, handcuffing him, using control holds against him, tripping and hitting him, and putting him in a prone position until medical personnel could arrive when he was hallucinating and "obviously deranged," had armed himself with two weapons, had previously stabbed his wife, and showed his intent to harm the officers by rushing at them with a screwdriver. No liability for injuries which allegedly resulted in suspect's death. Wheeler v. City of Philadelphia, No. Civ.A. 04-3792, 367 F. Supp. 2d 737 (E.D. Pa. 2005).

Assault and Battery: Handcuffs

     Officer's alleged over-tightening of arrestee's handcuffs did not constitute excessive force when the arrestee failed to complain that they were too tight at the time, and no physical injury occurred. Liiv v. City of Coeur D'alene, No. 03-35821, 130 Fed. Appx. 848 (9th Cir. 2005).

Assault and Battery: Physical

     Deputies were entitled to qualified immunity on arrestee's claims that they used excessive force against him during his arrest. Given the seriousness of the narcotics offenses of which he was suspected, they could reasonably believe that he was an immediate threat to them when they observed him reaching down by his feet while he was in his vehicle, and that they needed to take action to subdue him when he began to run away after he was handcuffed. Davis v. Lowers, No. 04-12816, 132 Fed. Appx. 302 (11th Cir. 2005). [PDF]

     Sheriff who was not present when his deputy entered a residence and allegedly used excessive force against an arrestee was not liable under theories of either inadequate supervision or training when the reports of both the deputy and children's service workers present during the arrest did not indicate either unlawful entry or excessive use of force, and no evidence of the inadequacy of the training provided. Loy v. Sexton, No. 04-3971, 132 Fed. Appx. 624 (6th Cir. 2005). [PDF]

Defamation

     Plaintiff's federal civil rights lawsuit seeking damages for the release by police of allegedly false information concerning his conduct to the press, which had their origin in his ex-wife's claim that he had violated the terms of a restraining order was properly dismissed on the pleadings. It essentially asserted a claim for defamation, which cannot be pursued as a federal civil rights cause of action. Pasdon v. City of Peabody, No. 04-2314, 417 F.3d 225 (1st Cir. 2005).

Defenses: Notice of Claim

     City of New York was not prejudiced by plaintiff's delay in filing notice of claim concerning actions of police called to the scene of an assault, which allegedly resulted in a man's death, when the city knew all of the essential facts of the incident. Denial of motion to serve a late notice of claim, therefore, was an abuse of discretion. Schiffman v. City of New York, 797 N.Y.S.2d 450 (A.D. 1st Dept. 2005).

Defenses: Statute of Limitations

     While plaintiff's federal civil rights claims arising out of the search of his residence were barred by Oklahoma's two-year statute of limitations, his claims arising out of his subsequent arrest three months later, and the alleged use of excessive force against him were not time barred. Trial court erred in utilizing the date of the search as the applicable date from which all of the plaintiff's claims accrued. Price v. Philpot, No. 04-7121, 2005 U.S. App. Lexis 18050 (10th Cir.).

Domestic Violence

     Man arrested in domestic violence investigation failed to show that his right to equal protection of law was violated by the failure of the county and its prosecutor to investigate his complaint against his ex-wife in the same manner as they investigated her complaint against him. Staley v. Grady, No. 03CIV.7949, 371 F. Supp. 2d 411 (S.D.N.Y. 2005).

False Arrest/Imprisonment: No Warrant

     Sheriff's deputy could not reasonably believe that there was probable cause to arrest a dog's owner for assault and battery merely on the basis that her arm was scratched by the claws, teeth or collar of the dog as it brushed past her. The deputy was not, therefore, entitled to summary judgment in the arrestee's false arrest lawsuit. Gaines v. Brewer, No. 04-3496, 132 Fed. Appx. 67 (8th Cir. 2005). [PDF]

     Officer had probable cause to make an arrest for public intoxication after observing a man staggering around on and off the road, and subsequently found him unconscious and smelling of alcohol. Nichols v. Town of Cedar Lake, No. 03-4301, 131 Fed. Appx. 488 (7th Cir. 2005). [PDF]

     Probation agent had probable cause to arrest a probationer for making "terroristic threats" during a confrontation at the probation office. Johnson v. Knorr, No. 04-2870, 130 Fed. Appx. 552 (3rd Cir. 2005). [PDF]

     Officer had probable cause to arrest three campers for violations of "quiet hours" rules at state campground, even though they were not making noise at the time of the arrest, based on information he received in a report from another officer concerning noise they had allegedly previously made. Swindell v. N.Y. State Department of Environmental Conservation, No. 1:03CV00770, 371 F. Supp. 2d 172 (N.D.N.Y. 2005).

Firearms Related: Intentional Use

     Officers acted objectively reasonably in shooting and killing a man they were in the process of arresting for a drug offense when he used his car as a weapon, knocking one officer backwards, and there was a threat that he would then run over the fallen officer. Gaxiola v. City of Richmond Police Department, No. 03-16871, 131 Fed. Appx. 508 (9th Cir. 2005).

First Amendment

     Minority civil rights advocacy organization was not entitled to an injunction against prosecutors and police officers questioning, threatening, or detaining its members while they engaged in lawful advocacy of the rights of African-Americans in criminal cases when it failed to show the likelihood of the future reoccurrence of alleged past harassment. NAACP v. Brackett, No. 04-1059, 130 Fed. Appx. 648 (4th Cir. 2005). [PDF]

Freedom of Information

     Justice Department Office of Legal Counsel legal memorandum on the issue of the authority of state and local police to enforce immigration laws was not exempt from disclosure under either the deliberative process or attorney-client privilege exemptions to the Freedom of Information Act, 5 U.S.C. Sec. 552. National Council of La Raza v. Dept. of Justice, 411 F.3d 350 (2nd Cir. 2005). [PDF]

Malicious Prosecution

     Arresting officer's observation of motorist swerving his vehicle while driving, the odor of alcohol on the driver's breath, and the fact that the driver failed a field sobriety test provided probable cause for an arrest and prosecution, precluding a malicious prosecution claim. Joseph v. West Manheim Police Dept., No. 04-3828, 131 Fed. Appx. 833 (3rd Cir. 2005). [PDF]

     Deputy was not entitled to either absolute or qualified immunity on malicious prosecution claim when there were genuine issues of fact as to whether he fabricated the evidence which resulted in the prosecution of an arrestee for battery on him. Chweya v. Baca, #03-56226, 130 Fed. Appx. 865 (9th Cir. 2005).

Negligence: Vehicle Related

     City could not be held liable for either injuries suffered by pedestrian struck by car or injuries suffered by motorist when police officer ordered motorist to move her car forward after accident and she moved it backwards instead, crushing the pedestrian's legs. There was no special relationship between the pedestrian and the officer, and they had no direct contact with each other. In a second case, a county could not be held liable for injuries a motorist suffered after being told by an officer to move his car to a nearby service station, despite the motorist's statement that he had chest pains and was not feeling well. The motorist subsequently lost control of his car and suffered serious injuries after driving it into a guardrail and a telephone pole. The motorist did not, the court noted, tell the officer that he was too ill to drive, and "we cannot expect the police to make a refined, expert medical diagnosis of a motorist's latent condition." Kovit v. Estate of Hallums, 829 N.E.2d 1188 (N.Y. 2005). [PDF]

     Jury's finding that a police officer was negligent in suddenly stopping his vehicle in order to avoid a possible traffic accident, resulting in injuries to a passenger in his vehicle, was not supported by the evidence, resulting in the overturning of a $100 damage award. Appeals court also overturns $1.5 million award for passenger against city for allegedly violating his constitutional rights of due process and equal protection in failing to offer him a settlement in the case, even though it had purportedly offered settlements in other similar cases. The passenger's claims against the city were barred by governmental immunity under North Carolina law, and the decision to offer a settlement under such circumstances was a matter of discretion. Clayton v. Branson, No. COA04-884, 613 S.E.2d 259 (N.C. App. 2005).

Police Plaintiff: Premises Liability

     Building owner was not liable for injuries police officer suffered on the premises when one of the steps on a stairway broke. Officer failed to show that the owner created the alleged defect on the stairs or had prior notice of it, or that there was a violation of a city building code provision. Crespi v. M.E.I.T. Associates, LLC, 795 N.Y.S.2d 275 (A.D. 2d Dept. 2005).

Police Plaintiff: Training Injuries

     Neither District of Columbia nor physicians at police medical clinic were liable for injuries officer allegedly suffered during "attack exercise" utilizing baton, which was part of his training. Feirson v. District of Columbia, No. CIV.A. 01-0905, 362 F. Supp. 2d 244 (D.D.C. 2005).

Search and Seizure: Home/Business

     Officers had exigent circumstances to enter a house without waiting for the occupant, a suspected methamphetamine drug dealer, to answer, based on various evidence giving them reason to believe that he was likely to be armed. Officers also did not act unreasonably in returning the suspect's gunshots, and suspect could not assert a claim for excessive use of force when he was not struck by the officers' bullets. Cabell v. Rousseau, No. 04-1258, 130 Fed. Appx. 803 (7th Cir. 2005).

     Police officer who entered and searched a home without a warrant and arrested the homeowner for resisting the search was entitled to qualified immunity when a reasonable officer would have believed that the entry was justified by a radio dispatch indicating that that another officer was pursuing a criminal suspect fleeing on foot in the vicinity of the residence. Payne v. City of Olive Branch, No. 04-60125, 130 Fed. Appx. 656 (5th Cir. 2005). [PDF]

     City health inspectors and police officers did not need a warrant to enter homeowner's front yard in connection with complaints concerning sanitary conditions there based on her keeping of up to nineteen dogs on the premises when the property was not fenced in, and was viewable by the public, as she had no reasonable expectation of privacy in the yard under those circumstances. Esmont v. City of New York, No. CV025560, 371 F. Supp. 2d 202 (E.D.N.Y. 2005).

Towing

     Truck owners "conclusory" allegations that the county and the company which towed his vehicle were engaged in a "conspiracy" to operate a "shakedown racket" and deprive truckers of their property was insufficient to state a federal civil rights claim. Hansel v. All Gone Towing Co., No. 04-14710, 132 Fed. Appx. 308 (11th Cir. 2005).

Wiretapping & Video Surveillance

     Undercover police officer did not violate suspect's rights by using a body wire for purposes of protecting his safety while investigating his possible involvement in the running of a prostitution ring, as the use of the wire was authorized by a New Hampshire statute. Mills v. Merrimack New Hampshire Police Department, No. 04-2016, 130 Fed. Appx. 481 (1st Cir. 2005).

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  Body Armor: The Department of Justice (DOJ), as part of its ongoing Body Armor Safety Initiative testing, announced on August 24, 2005 that test results indicate that used Zylon-containing body armor vests may not provide the intended level of ballistic resistance. As a result, DOJ will adopt new interim requirements for its body armor compliance testing program, and will add an additional $10 million to the $23.6 million already available to law enforcement through DOJ's Bulletproof Vest Partnership (BVP) program to assist in the replacement of Zylon-based body armor vests. The National Institute of Justice (NIJ), the research, development, and evaluation arm of DOJ, conducted extensive testing on used Zylon-based body armor. The testing was carried out as part of the Attorney General's Body Armor Safety Initiative, which began in November 2003. The latest report, NIJ's Third Status Report to the Attorney General on Body Armor Safety Initiative Testing and Activities, is available at https://vests.ojp.gov. NIJ performed ballistic testing on 103 Zylon-containing used armor vests from law enforcement agencies across the United States. Of these vests, 60 (58 percent) were penetrated by at least one round during a six-shot test series. Of those that passed penetration testing, 91 percent showed excessive "backface deformation," an indicator of the potential blunt trauma experienced by an officer wearing the armor. Only four used armor vests tested met all performance criteria under NIJ's body armor standard for new body armor. In the tests, age and appearance of used Zylon-based vests were ineffective predictors of potential ballistic performance. NIJ's research also showed that ballistic-resistant material, including Zylon, can degrade as a result of exposure to environmental conditions, such as moisture and light. It is likely that the ballistic performance degradation in Zylon-containing armor is closely related to the chemical changes found in what is known as the oxazole ring. Breakage of the oxazole ring correlates with degradation of the mechanical properties of Zylon fibers.

     The Department is issuing a Body Armor Standard Advisory Notice to alert law enforcement to the potential risks associated with the use of Zylon in body armor, and will adopt new interim requirements for its body armor compliance testing program. As a result, body armor models that contain Zylon will not be compliant, unless their manufacturers provide satisfactory evidence to NIJ that the models will maintain their ballistic performance over their declared warranty period. Also, until the new requirements become effective, Zylon-containing armor vests will not be eligible for purchase with federal funds through the BVP program. Documents issued include:

• Executive Summary (Adobe Acrobat File)
• Full Text of report (Adobe Acrobat File)
• Q&A: Third Status Report to the Attorney General on Body Armor Safety Initiative Testing and Activities
• Fact Sheet: Third Status Report to the Attorney General on Body Armor Safety Initiative Testing and Activities
• Body Armor Standard Advisory Notice #01-2005, SUBJECT: Poly-p-phenylene benzobisoxazole (PBO or Zylon®)
• NIJ 2005 Interim Requirements for Bullet-Resistant Body Armor

    Child Abuse: Investigating Child Fatalities. This Guide, the latest in the U.S. Justice Department Office of Juvenile Justice and Delinquency Prevention (OJJDP) Portable Guides to Investigating Child Abuse series, provides concise, practical information to assist law enforcement officers in investigating child fatalities in which investigators believe abuse or neglect caused or contributed to the fatal injury. The guide explains how child fatalities differ from other types of homicide cases and offers specific guidelines for conducting the investigation, documenting the case, interrogating suspects, and testifying in court. (NCJ 209764) Full text of the report: PDF

     Firearms Sales: Survey of State Procedures Related to Firearm Sales, Midyear 2004. Provides an overview of the firearm check procedures in each State and State interaction with the National Instant Criminal Background Check System (NICS), operated by the FBI. The report summarizes issues about State procedures, including persons prohibited from purchasing firearms, restoration of rights of purchase to prohibited persons, permits, prohibited firearms, waiting periods, fees, and appeals. Supplemental tables contain data on 2003 applications to purchase firearms and rejections, as well as tabular presentations of State-by-State responses. This is one of a series of reports published from the BJS Firearm Inquiry Statistics (FIST) project, managed under the BJS National Criminal History Improvement Program (NCHIP). This is an electronic only document. 8/05 NCJ 209288 Acrobat file (1M) | ASCII file (299K) | Spreadsheets (zip format 60K)

     Racial Profiling and Traffic Stops: "Guide for Citizens and Other Stakeholders on Race Data from Police Vehicle Stops," issued by the Police Executive Research Forum (PDF) [If not a PERF member, first go to the website by clicking here, and select "Enter as a Guest," and then click on the prior link for the publication].

     Statistics: Federal Tort Trials and Verdicts, 2002-03. Presents findings on jury and bench tort trials concluded in Federal district courts during fiscal years 2002-03. Analyzing public use data assembled by the Administrative Office of the U.S. Courts and BJS, the report is the latest edition in a series on the topic of tort trials. Information includes the types of tort cases that proceed to trial, plaintiff win rates, case processing times, and estimated median damage awards. The report also describes the types of Federal jurisdiction in tort trial cases, the differences between tort bench and jury trials, and details about asbestos and non-asbestos product liability trials (1990 - 2003). The overall trends in tort trial litigation from 1970 to 2003 are also examined. Highlights include the following:* Plaintiffs won in 48% of tort trials terminated in U.S. district courts in 2002-03. Plaintiffs won less frequently in medical malpractice (37%) and product liability (34%) trials. * An estimated 9 out of 10 tort trials involved personal injury issues -- most frequently, product liability, motor vehicle (accident), marine, and medical malpractice cases. * Eighty-four percent of plaintiff winners received monetary damages with an estimated median award of $201,000. 08/05 NCJ 208713 Press release | Acrobat file (162K) | ASCII file (34K) | Spreadsheets (zip format 16K)

     Reference:

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

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