CONTENTS

Police officer whose improper application of handcuffs to arrested 16-year-old allegedly caused a 1.3% permanent impairment was not entitled to a directed verdict in an excessive force lawsuit. Plaintiff was properly awarded $153,000 in damages and $51,692.15 in attorneys' fees.

     A 16-year-old boy and three friends were skateboarding in the parking lot of a civic center in Rapid City, South Dakota. The 16-year-old was arrested by a police officer, handcuffed, and put into her patrol car. The youth subsequently claimed that the police officer used excessive force and was negligent in handcuffing him, causing injuries.

     A jury awarded the plaintiff $153,000 in damages, and the police officer appealed, claiming that that the trial court should have directed a verdict in her favor based on qualified immunity. A federal appeals court rejected this argument.

     The court found that the evidence was clear, from the testimony of a senior officer present at the scene of the arrest, that the officer improperly applied the handcuffs, causing the arrestee significant pain and severe bruising. The officer argued, however, that the arrestee did not sufficiently prove that he suffered long-term or permanent physical injuries, and that more than minor injuries are required before the application of handcuffs amounts to an excessive use of force.

     In this case, however, the appeals court noted that there was testimony from the boy's treating orthopedic surgeon that he suffered a 1.3% permanent impairment of his upper right extremity, as well as testimony from a vocational rehabilitation expert that the plaintiff suffered a 13% vocational disability. The plaintiff also presented an economist to establish that his lifetime economic loss from the injury suffered was $180,063.

     Based on this, the appeals court found, there was a sufficient basis to support the jury's verdict, which it found to be "not unreasonable." Accordingly, the trial judge did not act erroneously in denying the officer's motion for a directed verdict.

     The appeals court also rejected a claim by the plaintiff that the trial court acted improperly in reducing a requested award of $85,457.33 in attorneys' fees to $51,692.15, based on its finding that a $200 per hour rate for one of the plaintiff's attorneys was excessive, and that $150 per hour was reasonable, as well as that $200 per hour for another of the plaintiff's attorneys was more reasonable than the requested $250 per hour. The hourly rate for a third attorney for the plaintiff, who was a former federal law clerk with two years experience in private practice, was reduced from $150 per hour to $125 per hour.

     Hanig v. Lee, No. 04-2758, 2005 U.S. App. Lexis 14436 (8th Cir.).

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

     •Return to the Contents menu.

Federal court grants summary judgment to Taser International in lawsuit filed by city attempting to obtain indemnification on a products liability basis for the death of an arrestee killed by a police officer who mistakenly shot him with her Glock semiautomatic weapon when she intended to use her Taser. Court rejects argument that Taser was liable because of a "design defect" making the Taser look too much like a gun, or on the basis of several other theories.

Officer's action was also found to have been accidental and therefore not an intentional "seizure" of the arrestee with her in violation of the Fourth Amendment which could be a basis for civil rights liability.

     A California police officer fatally shot an arrestee with her Glock semiautomatic weapon when he was yelling and kicking the window in the backseat of her police car. She did not, however, intend to shot him with her gun or even seriously injure him, but instead was reaching for what she believed was her Taser M26 weapon, which was mounted in a thigh holster directly below her duty belt, on the same side as she had her gun holster.

     A lawsuit for excessive use of force was filed against the city and the officer. A federal trial court found that the officer did not violate the arrestee's Fourth Amendment rights, as she did not intend to shoot him with her gun, and therefore there was no intent to "seize" him with her gun.

     The plaintiffs themselves, the court reasoned in granting summary judgment for the officer and city on the federal civil rights claims in the case, admitted that the officer did not intend to seize the arrestee with her gun. The intent to shoot "something" was insufficient to present a Fourth Amendment claim for excessive use of force in light of evidence that the officer's shooting of the Glock was accidental. (The court declined to grant summary judgment, however, on state law assault and battery claims arising out of the incident).

     The city also filed a lawsuit for indemnification against Taser International in state court which was later removed to federal court and consolidated with the lawsuit filed by the decedent's family. The city asserted claims against Taser for strict products liability for defective design and failure to warn, negligent design of the M26 and accessories, negligent warning/training, breach of implied and express warranties, equitable indemnification and contribution.

     The essence of the city's argument was that the design of the Taser M26 and/or its holster, or training materials provided concerning it, helped lead to the officer's mistake, either because the Taser was designed to look too similar to a gun, or because the holster was designed to be worn on the same side as an officer's gun.

     In rejecting all of these claims, and granting summary judgment to Taser, the federal trial court noted that the officer had previously made a similar error during a training exercise in pulling her gun rather than the Taser.

     The court rejected the strict products liability design defect theory, as there was no showing that the Taser was "used" during the shooting, and therefore it did not cause the complained of harm. Nor was the holster "used," in any sense. Additionally, the court noted, Taser also had holsters available for placement of the Taser on the opposite side from the officer's gun.

     The court rejected the failure to warn theory, because there is no duty to warn concerning something which is obvious:

the evidence indicates that Plaintiffs were aware of the possibility of weapons confusion, especially [the officer's] own tendency in light of her prior incident which she disclosed to [a superior officer]. Moreover, assuming that Plaintiffs’ allegations that the M26 is defectively similar to a handgun in functionality, design, and muscle memory, then the possibility of weapons confusion is obvious, especially when the M26 is worn close to a firearm. Under these circumstances, there is no duty to warn. The same is also true of the holster.

     The court found that training provided is a service, and therefore not subject to strict products liability. It further rejected breach of warranty claims, since Taser International did not sell the Tasers or holsters to the city, which purchased them from a third party distributor.

     Torres v. City of Madera, #02-6385, U.S. District Court, E.D. Cal. (July 11, 2005)

     » Click here to read the text of the court decision granting summary judgment to Taser International on the AELE website. [PDF]

     » Click here to read the text of the court decision granting summary judgment to police officer and city on the AELE website. [PDF]

     Editor's Note: Click here to read the text of a July 18, 2005 lawsuit filed by the City of Dolton, Illinois in the U.S. District Court for the Northern District of Illinois against Taser, International, #05C4126, alleging that it has misrepresented or concealed the risks of serious harm or death to persons subjected to use of the Taser weapon.

     •Return to the Contents menu.

Officer was entitled to qualified immunity for shooting and killing a suspect in a drug transaction investigation who was slowly moving a vehicle towards him, which threatened to crush him into another car.

     Officers engaged in a drug transaction investigation converged on a vehicle containing three suspects, two of whom they quickly arrested. The remaining suspect re-entered the vehicle and an officer pointed his gun at the suspect in the vehicle, verbally identified himself as police, and told him to put his hands up. Instead of complying, the suspect "grinned" at the officer as the car slowly began to move forward at a likely speed of one to two miles per hour, giving the officer, at most, 2.72 seconds to react before getting crushed between two cars, the suspect's car and the one he was standing in front of.

     As the officer attempted to get out of the way of the moving vehicle, he shot the suspect through the windshield, after which the suspect's car stopped moving. Paramedics were not able to save the suspect's life. The decedent's mother and estate filed a civil rights lawsuit for unreasonable use of deadly force.

     A federal appeals court found that the defendant officer was entitled to qualified immunity because he perceived that the suspect was attempting to crush him and endanger his life, justifying the use of deadly force. "Because it is constitutionally reasonable for an officer to use deadly force when a suspect is threatening escape and possible harm to others, it is also constitutionally reasonable for an officer to use deadly force when he has probable cause to believe that his own life is in peril." Additionally, the court found, at the time of the shooting, no clearly defined pre-existing law would have indicated to the officer that his use of force under these specific facts was unlawful.

     Robinson v. Arrugueta, No. 04-10856, 2005 U.S. App. Lexis 13456 (11th Cir.).

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

     •Return to the Contents menu.

Police officer who tackled suspect he observed in a physical confrontation with another officer who had called for backup was entitled to qualified immunity for tackling the suspect, when no clearly established case law at the time put him on fair notice that such action was unlawful, if, indeed, it was.

     A officer went to a woman's home as part of an investigation into an assault allegedly committed by her daughter. The woman told her daughter not to answer any questions, to which the officer responded that the daughter would then have to come "downtown" for questioning. A verbal confrontation occurred between the officer and the mother, and the mother made some sort of hand gesture, which the officer subsequently described as "raising her hand" towards her face.

     The officer grabbed the mother's wrist after the finger-pointing/hand-raising episode, and the mother pulled her wrist away. The mother ultimately punched the officer in her left eye, according to the officer, but the mother denied doing so. The officer radioed for backup. Another officer arrived and allegedly knocked the mother to the ground. The mother claimed that her left knee hit the ground and that she was lying on her stomach, with the officer, a 5'11" 240 lb man on top of her midsection, and that she could not breathe, following which he threw her on her right side and handcuffed her behind her back.

     The officer who arrived on the scene stated that he saw the two women--the officer and the mother, struggling with each other on the floor side-by-side, and that the female officer had already placed a handcuff on one of the mother's arms. He then pulled the mother away from the female officer by picking her up, then leaned her over a chair, using a "balance displacement technique." She was arrest on charges of obstruction of official business, assault, and resisting arrest, and was acquitted on all these charges.

     She claimed that the two officers arrested her without probable cause and used excessive force against her. The trial court found that there was no evidence linking the male officer to the false-arrest claim or the female officer to the excessive force claim, but rejected the female officer's argument that, as a matter of law she had probable cause to arrest the mother and rejected the male officer's argument that as a matter of law he did not use excessive force in arresting the mother. The trial court denied both defendant's motions for qualified immunity on the remaining claims against them.

     A federal appeals court reversed the denial of qualified immunity for the officers on all claims except the excessive force tackling claim against the male officer. The male officer appealed the denial of qualified immunity on this remaining claim to the U.S. Supreme Court, which vacated the judgment and remanded the case for further consideration in light of Brosseau v. Haugen, 125 S. Ct. 596 (2004). On remand, the appeals court has found that the male officer was also entitled to qualified immunity on the claim that he used excessive force in tackling the mother.

     Brosseau indicates that the question of qualified immunity must be determined "in light of the specific context of the case, not as a broad general proposition." It is not enough, therefore, to simply say that prior precedent clearly establishes the general proposition that the use of excessive force violates the Fourth Amendment, because "the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense."

     Even accepting all of the plaintiff's factual allegations as true, the appeals court found, there was nothing "obvious" about what the male officer should have done when he entered a house from which a fellow officer had just called for backup, when he could see that the officer and resident were in close proximity and in the middle of some form of confrontation. No prior case at the time of the incident clearly prohibited "tackling" in a materially similar context, so that the officer was not on fair notice that his conduct was unlawful, if, indeed, it was. On that basis alone, the court reasoned, the plaintiff's excessive force claim failed as a matter of law, and the officer was entitled to qualified immunity.

     Lyons v. City of Xenia, No. 03-3282, 2005 U.S. App. Lexis 16034 (6th Cir. August 04, 2005)

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

     •Return to the Contents menu.

No reasonable officer could have believed that there was arguable probable cause to arrest, for obstruction, an African-American attorney who allegedly watched a traffic stop of two young black men by white police officers from forty to fifty feet away, and did nothing to interfere or intervene. Officers were not entitled to qualified immunity from liability.

     An African-American civil rights attorney who stopped to watch a traffic stop of young black men being conducted by white Pine Bluff, Arkansas police officers was arrested by one of the officers for "obstructing governmental operations." The arrestee sued the arresting officer and the city, claiming that the arrest violated his constitutional rights and that the city failed to train and supervise its police officers to "refrain from engaging in racially selective and racially discriminatory" encounters with African-Americans.

     The arresting officer's motion for qualified immunity was denied, and the denial was upheld on appeal.

     In this case, the arrestee had allegedly stood with his arms folded some forty to fifty feet from the encounter between the officers and two young black men near a car. One of the officers approached and asked if he could help him, to which the attorney said no, and responded that he was watching "Pine Bluff's finest in action." He repeated this to another one of the officers.

     While he initially responded to questions about who he was by asking whether he had committed a crime, he subsequently identified himself as a lawyer, and offered his driver's licensed to one of the officers. The officer allegedly instead handcuffed him, and put him in the back of a police car where he was kept for twenty minutes before being taken to the police station.

     Accepting the arrestee's account on appeal for the purposes of the qualified immunity analysis, the appeals court posed the issue as whether the officer had arguable probable cause to arrest the attorney for obstructing governmental operations because he "distracted" the officers who were conducting a traffic stop by silently watching the encounter from across the street with his arms folded in a disapproving manner. The appeals court believed that the answer was no.

In a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions. To take an obvious example, a highway road crew might like to arrest a frustrated motorist who parked his car and watched as the crew took an unauthorized three-hour lunch break, but such an arrest would be a flagrant abuse of government power. The issue is often more complex when police officers are engaged in public law enforcement activities, because some on-lookers may create safety hazards, while others may seek to frustrate valid law enforcement. [...] But public police activity invariably draws a crowd of interested but benign on-lookers.

     In this case, there was testimony that a number of people came out of nearby houses to observe the traffic stop from a distance. The claim by the officers that "one more silent, non-interfering on-looker," the attorney, "created a distraction that prevented" the officers from safely completing the traffic stop was characterized by the court as "preposterous."

     The appeals court noted that the plaintiff claimed to have only spoken to the officers once spoken to and to have complied with the officers' request for identification. "No reasonable police officer," the court concluded, could believe that there was arguable probable cause to arrest "such an on-looker in this situation, for obstruction of governmental operations or for any other purported crime."

     Walker v. City of Pine Bluff, No. 04-1969, 2005 U.S. App. Lexis 14802 (8th Cir.).

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

     •Return to the Contents menu.

A 24-hour detention of a motorist arrested under a valid bench warrant for unpaid traffic citations did not shock the conscience. While delays in completing his processing, in part due to problems with a new computer system, were unfortunate and "upsetting," they did not constitute a violation of his constitutional due process rights.

     Two Minnesota State Patrol officers issued two traffic citations to a motorist for failure to produce proof of insurance and failure to wear a seat belt. Because of the claimed "inadvertence" of the motorist and his wife, the fines imposed by the citations were not paid, and bench warrants for his arrest were issued, and his driver's license was suspended. When he was stopped again he was arrested on the bench warrants and transported to a county detention center. He arrived there at approximately 7:30 a.m., and placed in a holding cell.

     He evidently had the misfortune, however, to have arrived there the day after a new computer system had been activated. While it was designed to update record-keeping and processing functions, a number of problems were encountered with the new system, increasing intake and booking processing times. These difficulties, combined with the usual processing procedures, resulted in the motorist's detention there for a period of approximately twenty-four hours from his arrival. A number of activities were repeated several times because of personnel being unfamiliar with the new system.

     He sued the county and sheriff, claiming that the county had a policy and practice of unreasonably delaying the release of persons entitled to release, and therefore was responsible for his wrongful detention in violation of his civil rights.

     A federal appeals court upheld summary judgment for the defendants. The initial arrest was made under a valid bench warrant. And the court found that under the totality of the circumstances, his lengthy 24-hour detention while awaiting processing and release--"while unfortunate and understandably upsetting"--did not shock the conscience and therefore did not violate his due process rights.

     Luckes v. County of Hennepin, No. 04-3156, 2005 U.S. App. Lexis 15437 (8th Cir.).

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

     •Return to the Contents menu.

Police officer had probable cause to arrest woman for obstruction when she blocked his entry into her home to arrest her son inside, for whom he and accompanying officers had two arrest warrants. Arrestee's statement that the officers entered her home without "warning, notice, or consent" did not contradict the officers' version of the events, so that they had both lawful authority to enter and to arrest her when she attempted to interfere.

     An arrestee sued three Osceola, Arkansas police officers, claiming that her arrest was unlawful. She claimed in her affidavit that one evening, while she was in her home, one of the officers entered through the rear door without warning, notice, or consent and pointed a gun at her. The other two officers allegedly kicked in the front door and also entered her home. They searched her home, including her bedroom, the area under her bed, her closets, and her dresser drawers, although they allegedly lacked a search warrant or probable cause to enter her home. One of the officers then allegedly placed her under arrest without probable cause, took her to the police station, and released her approximately one hour later.

     The officers explained the events as unfolding in the course of serving two arrest warrants on the woman's son. The arresting officer claimed that he observed the son in the backyard, shouted at him to stop, and he fled into the residence, and the officer then chased him. He claimed that his entry into the home was blocked by the mother, who denied that her son was inside, and then he drew his weapon when the other officers, who were at the front of the house, radioed that the son was headed back to the rear. The other two officers took the woman's son into custody inside the house, and the first officer arrested the mother for obstructing governmental operations by blocking his entry through the back door of the house and denying her son's presence inside.

     The trial court denied the officers' motion for qualified immunity, on the basis that there were disputed issues of material fact.

     A federal appeals court found that the trial court was erroneous in finding that there was an issue of material fact about whether the officers had lawful authority to enter the home, noting that nowhere in her affidavit had the plaintiff denied that the officers had two valid arrest warrants for her son, that her son was in the house, or that the officers entered to serve the arrest warrants. Her statements that the officers entered without "warning, notice, or consent" did not dispute the essential facts necessary to resolve the qualified immunity question as to the lawfulness of the home entry, since a valid arrest warrant is accompanied by the authority to forcibly enter a residence as long as there is a reasonable belief that the suspect lives there and is currently present.

     The trial court correctly found that the issue of whether or not the officers had searched the home or had authority to do so was disputed.

     But on the issue of whether the arrest of the woman was lawful, the appeals court found, there was really no dispute. Nowhere did the plaintiff deny that she had blocked access to the back door when the officer attempted to pursue her son, or that she had falsely stated that her son was not inside. Her "legal conclusion" that her arrest was unlawful could be disregarded, as she did not dispute the essential facts asserted by the officers as justifying her arrest.

     The appeals court, therefore, only upheld the denial of qualified immunity on claims concerning the officers' alleged search of the home, but reversed it as to claims concerning their entry, based on the arrest warrants, and the arrest of the mother, which was found to be lawful.

     Ward v. Moore, No. 04-2138 2005 U.S. App. Lexis 14424 (8th Cir.).

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

     •Return to the Contents menu.

Undercover federal drug agent acted reasonably in fearing for her life and shooting a suspect participating in an attempted armed robbery during a drug transaction. U.S. government not liable under Federal Tort Claims Act for agent's actions which caused suspect to be paralyzed from the waist down.

     An agent of the U.S. Drug Enforcement Administration (DEA) shot a suspect who was allegedly participating in an armed robbery attempt during an undercover drug transaction. The bullet struck the suspect in the spine, paralyzing him from the waist down.

     The injured man sued the U.S. government for assault and battery in a lawsuit brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b)(1) and 2671 et seq. After a bench trial, the trial judge found that the agent was in reasonable fear for her life when she shot and seriously injured the plaintiff. A federal appeals court affirmed, stating that it was not persuaded that this finding was "clearly erroneous."

     The defendant agent had five years of law enforcement experience and knew that participants in drug transactions are often armed, as well as that robberies can occur during drug transactions. The agent had shown a suspect a bag containing $48,000 in cash and arranged to purchase cocaine from him the following day. Three individuals allegedly met later that day and made plans to rob the agent at gunpoint with an unloaded gun.

     The transaction was to take place at a motel, where other officers would be around either in cars or in an adjacent room. When the motel door was opened, one suspect pulled out an unloaded semi-automatic pistol. He and another undercover officer grappled for the gun, and the DEA agent pulled out her own pistol.

     The DEA agent shot and killed one suspect, and then saw one of his accomplices moving his left hand in front of his body. She stated that she feared that he was reaching for a gun, and fired two shots at him, one of which hit him and lodged in his spine. The entire incident allegedly took less than three seconds. The second suspect was apparently not armed at the time of the shooting, and the DEA agent did not announce that she was a law enforcement officer before opening fire.

     The trial judge found that the DEA agent acted in an objectively reasonable manner by believing that the second suspect presented a threat of imminent harm, and also that it was not feasible for her, under the circumstances to announce her status before shooting.

     In upholding the trial court's decision, the appeals court noted that the events occurred "very quickly and fluidly." Under the circumstances, it was not unreasonable for the agent to act without "pausing to reassess the question" of whether the second suspect posed a deadly threat to her.

     Further, the second suspect shot had moved behind her and touched her back during the attempted armed robbery, which gave her a basis for believing he was part of the robbery attempt, and posed a threat to her.

In circumstances of this sort, where a second or two might mean the difference between life and death, officers must be permitted to protect themselves and one another without waiting to see whether a mortal threat dissipates.

     Morales v. US, No. 03-1743, 2005 U.S. App. Lexis 10082 (6th Cir.).

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

     •Return to the Contents menu.

Christian minister banned by city, under threat of arrest, from displaying anti-homosexuality signs on pedestrian overpasses above highways was entitled to further proceedings to determine whether the city was truly motivated by traffic safety considerations, or whether the action was based on the content of his message.

     A Christian minister participated in a protest against homosexuality on a pedestrian overpass above a busy highway in Madison, Wisconsin. He and several others displayed large signs above the sides of the over-pass which read, "Homosexuality is sin," and "Christ can set you free." Police officers threatened him with arrest if he did not end the demonstration after drivers, angry with the message being displayed, allegedly began driving erratically and causing congestion on the highway. The protester was ultimately banned from any such protest on the highway overpasses in the Madison area, under threat of possible arrest.

     He filed a federal civil rights lawsuit claiming that this violated his First amendment rights, and the trial court found that the restriction on speech was justified and granted summary judgment in favor of the defendants, which included the city, the police chief, and two individual officers.

     A federal appeals court ruled, however, that there were genuine issues of disputed fact which made summary judgment inappropriate.

     The plaintiff was threatened with arrest under a state disorderly conduct statute prohibiting conduct which "tends to cause or provoke a disturbance." The defendants argued that because conducting a protest on a pedestrian overpass distracts drivers and creates a safety hazard, it is "inappropriate and can be punished under the disorderly conduct statute."

     The appeals court agreed that the "surrounding circumstances" of the activity must be considered, but cautioned that a city cannot threaten to prosecute protesters under this statute if the threats are "nothing more than a pretext for stopping unpopular, yet protected, speech." Speech can not be found to be disorderly merely because it involves unpopular ideas or because "others are thereby stimulated to commit disorderly acts."

There is no question that the morality of homosexuality is a contentious issue, but unpopular speech remains protected by the First Amendment; in fact, "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

     The pedestrian overpass, because it is part of a public sidewalk, is part of a traditional public forum. Speech taking place in such a forum, the court stated, "receives heightened constitutional protection."

     While the city argued that prohibiting the plaintiff's protest on any overpass was a proper place and manner regulation, and that safety was its only concern. The plaintiff argued, however, that every offered justification for ending his protest was directly related to the reactions of the persons viewing the signs, such as a statement to him by an officer that several drivers, who were disturbed by the messages on the signs, had called in and complained about the protest.

     A city policy that prohibited all protests and all signs on all highway overpasses would be clearly content-neutral. But the city refused to admit that such a policy exists, the court stated. "Instead, it insists that signs are prohibited only if they impair traffic safety," and the officers were allegedly allowed to decide on an "ad hoc basis" whether the allow such protests to continue, "depending on how drivers react to the signs on the pedestrian overpass."

     While it was clear that the plaintiff has been completely banned from displaying signs on all pedestrian overpasses in Madison, the question remained, the court stated, "as to whether the ban was narrowly tailored and content-neutral," or whether the police imposed what amounted to a "heckler's veto" on the basis of the content of his message. Further proceedings were required, the court ruled, as to whether the essence of the city's policy was a content-based and impermissible rule prohibiting only the plaintiff's expression on pedestrian overpasses.

     Ovadal v. City of Madison, No. 04-4030 2005 U.S. App. Lexis 14554 (7th Cir.).

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

     •Return to the Contents menu.

City ordinance which prohibited all meetings, parades, or assemblies on public streets or sidewalks without a permit was unconstitutional to the extent that it applied to small groups and absolutely prohibited all such activities on Sunday mornings.

     A South Carolina man frequently engaged in anti-abortion protests in that state. When he and 15 other protesters stood on a public sidewalk in Travelers Rest, South Carolina, holding signs, praying, sharing their religious beliefs, and handing out pamphlets, they were not arrested, but were informed by local police that they were in violation of a local ordinance prohibiting the holding of any "parade, meeting, exhibition, assembly or procession of persons and/or vehicles" on the streets or sidewalks of the city unless they first obtain a written permit authorizing the activity.

     The man filed a federal civil rights lawsuit challenging the ordinance as facially unconstitutional under the First Amendment, The trial court ruled that the ordinance did, in fact, violate the First Amendment, to the extent that it required small gatherings, including sole protesters, to obtain a permit before protesting in a public forum, as well as to the extent that it prohibited issuing permits for such activities which would occur between 8 a.m. and 1 p.m. on Sundays.

     A federal appeals court upheld this result, finding that the ordinance, by requiring protesters engaging in protected speech to obtain a permit, constituted a prior restraint on free speech. While a city may have a permit requirement controlling the time, place and manner of speech, it must not be based on the content of the message, and must be "narrowly tailored" to serve a significant governmental interest, the court noted, and must leave open "ample alternatives for communication."

     The court did not find that the ordinance was content-based, and agreed that it left open ample alternatives for communication, but agreed with the trial court that it was not "narrowly tailored" to the extent that it applies to small gatherings of individuals and absolutely prohibits such activities on Sunday mornings.

     Unlike other permit requirements upheld in some prior cases, the ordinance at issue was not limited to large groups, and the city itself conceded that it applied to gatherings of "only a few people," and that at least one group of only three applied for a permit. The city did dispute, however, the trial court's interpretation that the ordinance would apply even to only one individual protester.

     The appeals court ruled that the "unflinching application" of the ordinance to groups as small as two or three rendered it "constitutionally infirm." The court noted that the ordinance applied to political speech, which is at the "core" of the First Amendment, and stated that the burdens it placed on such expression were substantial, including the procedural hurdle of filling out and submitting a written application, and then waiting for the permit to be granted, which could discourage potential protesters. Additionally, because of the delay, "immediate speech can no longer respond to immediate issues."

A few simple examples illustrate the overbreadth of the Ordinance. Consider three friends who are walking along the sidewalk in downtown Travelers Rest. They come upon a newspaper stand displaying a headline that outrages them. So moved by the headline, they walk to the end of the street and hold up handmade signs protesting the headline. Even if their expression does nothing to disturb the peace, block the sidewalk, or interfere with traffic, the Ordinance renders it criminal.

     The city, the court found, had not established why placing such a burden on expression was necessary to keep the streets and sidewalks safe, orderly and accessible. "At bottom, the legislative body can enact a permit requirement that burdens expression only to the extent necessary to effectuate the city's significant interests, and no more so."

     The appeals court also found that the city had not explained how an absolute ban on Sunday morning parades served its stated purposes of safety and preserving order in the community.

     Cox v. City of Charleston, No. 03-1782, 2005 U.S. App. Lexis 15255 (4th Cir.).

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

     •Return to the Contents menu.

Officers were not entitled to summary judgment in lawsuit for unlawful entry into home when that entry and the seizure of a resident were not supported by a warrant, consent, or exigent circumstances.

     Two Akron, Ohio police officers were called to investigate a domestic disturbance call at a residence. The alleged female victim told the officers that her boyfriend was at a neighboring house, which was another man's residence. The officers went to investigate. When the resident of that home (not the boyfriend sought) came to the window in response to a knock on the door, the officers asked him to come to the front door. He did so, partially opened it, and spoke briefly with the officers.

     During this conversation, one of the officers allegedly placed one of his feet inside the doorway, while the second officer stood directly behind him. The resident told the officers that the boyfriend they sought was not inside his home, and also denied a request by the officers to come inside. One of the officers allegedly detected the odor of marijuana emanating from inside the house, and asked the resident, "what about the weed?" The resident immediately attempted to close his front door, but he was unable to shut it because the officer's foot was still inside the doorway. The two officers then allegedly both pushed the door open and entered the home, where a struggle ensued.

     The officers attempted to arrest the resident, but he resisted, running out onto his front porch. The officers allegedly struck him with their fists and batons, and sprayed him with pepper spray, and a third officer arriving on the scene used a Taser gun on him, after which he was arrested. The officers then re-entered the home and seized marijuana and firearms.

     The evidence was ultimately suppressed on the basis that there were no exigent circumstances of "hot pursuit" justifying the entry, and no consent either. The resident did, however, plead no contest to misdemeanor assault on one officer.

     The resident sued for violation of his civil rights, and the trial court ruled that the defendants were entitled to qualified immunity and that the plaintiff's constitutional claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994) since he was convicted of misdemeanor assault on an officer. Under Heck, a federal civil rights claim for damages, if it would imply the invalidity of a conviction, is barred unless the underlying conviction has already been reversed on appeal or otherwise set aside.

     A federal appeals court agreed that the plea on the assault charge barred an excessive force claim, but rejected the argument that it also barred the claims for unreasonable seizure and unlawful entry into the home.

     Whether the plaintiff was legally or illegally seized, and whether his home was or was not illegally entered did not impact on the validity of his assault conviction, so the principles in Heck did not bar those claims.

     The appeals court further noted that the officers had no warrant to arrest the plaintiff or search his residence, and he did not consent to their entry into or presence in his home.

     The appeals court rejected the argument that when the resident shut the door on the officer's foot, the officers had probable cause to believe that he had committed the crime of assault and any entry into his home to seize him was justified by "exigent circumstances under the hot pursuit of a fleeing felon exception to the warrant requirement."

     The plaintiff did not commit a crime in a public place and attempt to flee into his house, and there was no evidence to suggest that the plaintiff knew that the officer's foot was in the doorway when he attempted to shut the door. Because the officers' seizure of the plaintiff and entry into his home were unsupported by a warrant, consent, or exigent circumstances, the officers deprived him of a constitutional right to refuse entry into his home and to be free from an unreasonable seizure of his person. They were also not entitled to qualified immunity, the court held, because these rights were clearly established.

     Cummings v. City of Akron, No. 03-3259, 2005 U.S. App. Lexis 14950 (6th Cir.).

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

     •Return to the Contents menu.

Search warrant issued for impounded auto as part of investigation of double murder was not a "valid" warrant on which reliance was objectively reasonable when the make, model, year, VIN, and license plate number were wrong and actually described another auto owned by another member of the same family. Officers were therefore improperly granted summary judgment on claims that they unlawfully searched the vehicle.

     A woman claimed that county law enforcement officers violated her Fourth Amendment rights by searching her automobile without a valid search warrant. Her son had reported to the county sheriff's department that he discovered a dead body while looking for ginseng root in a wooded area. A deputy summoned to the scene noticed what make and model blue car the son was driving.

     A witness subsequently stated that he had seen a blue vehicle leave the residence of the decedent late at night, shortly after he had heard a rifle shot. The witness also stated that he believed he had seen the son driving the same vehicle, which had a loud exhaust, earlier in the day. The decedent's wife, also murdered, was found in the residence.

     The son gave an officer permission to start the blue vehicle and they confirmed that it had a loud exhaust. The vehicle was then impounded and taken to the county sheriff's department's storage facility, where a license plate revealed that the vehicle was owned by the mother, not the son.

     A search warrant to search the impounded vehicle was obtained, but the vehicle description, licensed plate number, and vehicle identification number were incorrect, and referred to another vehicle owned by the woman's husband. The warrant was used to search the impounded car, however, which was retained by the sheriff's department for approximately one year.

     The son was eventually charged in the deaths of the couple. Evidence obtained from the search of the impounded vehicle was suppressed because the vehicle search warrant named another auto.

     The mother sued for alleged unconstitutional search and seizure of her vehicle. The defendants claimed that they should not face liability for the search of the vehicle because the search was conducted pursuant to a valid warrant, although one containing "some errors" in the vehicle's description.

     The trial court agreed, and entered summary judgment for the defendants on the vehicle search claim. A federal appeals court, however, concluded to the contrary: that the defects in the warrant utilized in the search were "so grave" that the defendants were not entitled to summary judgment on the grounds that the search was conducted pursuant to a valid warrant.

     The errors in the search warrant and its supporting affidavit, the court found, went beyond "technical inaccuracies" and instead were "so extensive that there was a reasonable probability that the wrong vehicle could have been mistakenly searched."

     Indeed, in this case "virtually every descriptor of the vehicle" included in the search warrant and affidavit was incorrect--make, model, VIN, and license plate number. The only thing in the description that appeared to be correct was that the vehicle was located at the sheriff's office garage after being impounded. The danger that another vehicle could be mistakenly searched, the court noted, was further heightened in this case by the fact that the erroneous information did accurately describe another vehicle owned by a member of the same family, which could have also been the target of a search as part of the ongoing investigation into the murders.

     This went beyond mere transposition of digits in a license plate or VIN number, or a minor mistake in the description of one portion of a vehicle, but rather the wholesale inclusion of another vehicle's description.

     Given such extensive errors, the invalidity of the search warrant was clearly established, since the vehicle searched bore no resemblance to the vehicle listed in the warrant. Reliance on this search warrant was therefore objectively unreasonable, so the trial court acted in error in granting summary judgment to the defendants on the vehicle search claims.

     Knott v. Sullivan, No. 04-3045, 2005 U.S. App. Lexis 16588 (6th Cir.).

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

     •Return to the Contents menu.

Assault and Battery: Handcuffs

     While police officer had adequate probable cause to arrest motorist for reckless driving after observing her going 76 miles per hour in a 45 mile per hour zone, genuine issues as to whether he improperly used excessive force against her after she was handcuffed, jerking her up by the handcuffs in a manner severe enough to cause a disabling injury, barred summary judgment for him in her federal civil rights lawsuit. Polk v. Hopkins, #04-1130, 129 Fed. Appx. 285 (6th Cir. 2005).

Assault and Battery: Physical

     Police officer's actions in tackling an arrestee who had fled from the scene of a search warrant, and who was reasonably believed to be armed based on a radio transmission the officer had heard, were not an excessive use of force. Brown v. Pfaff, No. CIV.03-404, 357 F. Supp. 2d 781 (D. Del. 2005).

Defenses: Collateral Estoppel

     Arrestees who had entered a plea in state court admitting that they attempted to use unlawful force to inflict bodily injury on another person were barred from pursuing a federal civil rights claim based on the alleged invalidity of their arrests. Johnson v. Lindon City Corporation, No. 04-4067, 405 F.3d 1065 (10th Cir. 2005).

Defenses: Indemnification

     Motorists who alleged that they were injured in a collision caused by the police engaging in a high-speed pursuit of another motorist could not pursue, under Connecticut state law, a claim against the town for indemnification of the officers without directly bringing claims against the town's employees or agents (the officers). The defendant town's motion for summary judgment was therefore granted. Gaudino v. Town of East Hartford, No. 24660, 865 A.2d 470 (Conn. App. 2005). [PDF]

Defenses: Statute of Limitations

     Arrestee's claim for excessive use of force during his arrest, allegedly causing problems with his hearing, was time-barred under a three-year New York statute of limitations when he failed to bring his lawsuit until ten years after the incident. The time limit began to run from the date he was allegedly beaten. Hussain v. Commissioner, No. 04-CV-2443, 368 F. Supp. 2d 216 (E.D.N.Y. 2005).

     Federal trial court was mistaken in dismissing a federal civil rights lawsuit as time-barred by a Kentucky one-year statute of limitations, as the lawsuit was filed within one year from the date that the plaintiff had reason to know he had a claim. Kelly v. Burks, No. 04-5692 2005 U.S. App. Lexis 14634 (6th Cir.). [PDF]

Expert Witnesses

     Trial judge did not abuse his discretion in excluding the testimony of a medical expert in a detainee's lawsuit seeking damages for eye injuries allegedly caused by a police officer during the detention. The plaintiff failed to file the expert's report in a timely manner, and the report failed to provide a complete statement of the basis and reasons for the expert's opinion or state his qualification. Further, admission of the testimony at a late date had to be excluded to avoid prejudice because admitting the testimony and giving the defendant officer time to depose the expert would have resulted in the postponement of the trial. Brooks v. Price, No. 03-4608, 121 Fed. Appx. 961 (3rd Cir. 2005). [PDF]

False Arrest/Imprisonment: No Warrant

     Witness in murder case was under arrest when he was interviewed because officers handcuffed him, put him in the back of their squad car and took him to the police station for the questioning, defeating the officer's argument that they had not made an arrest. Additionally, there was a genuine issue of material fact as to whether the city had an official policy of handcuffing and detaining all witnesses in murder investigations, which precluded summary judgment for the city in the witness's false arrest/false imprisonment lawsuit. Taylor v. City of Detroit, No. 03-73595, 368 F. Supp. 2d 676 (E.D. Mich. 2005).

     Officers who were merely present when a number of arrestees were allegedly grabbed and handcuffed by other unidentified officers could not be held liable vicariously for the other officers' alleged improper arrests. Neyland v. Molinaro, No. 03-73090, 368 F. Supp. 2d 787 (E.D. Mich. 2005).

     Summary judgment was improper in false arrest lawsuit by fast food patron taken into custody by deputy sheriff after he presented a genuine one hundred dollar bill for payment which restaurant mistakenly believed was counterfeit, based on a genuine issue of fact as to whether the deputy acted reasonably in making the arrest. Kennedy v. Sheriff of East Baton Rouge, No. 2004 CA 0574, 899 So. 2d 682 (La. App. 1st Cir. 2005). [PDF]

     There was probable cause to arrest a police officer for being involved in a drug deal when he failed to immediately report that a confidential informant had picked up a package at the bus station, and also failed to follow the informant after the pick-up. Hunter v. City of Monroe, #04-30362, 128 Fed. Appx. 374 (5th Cir. 2005).

     Police officers were entitled to qualified immunity for arresting the wife and daughter of a man they were attempting to arrest. The record showed that both the wife and daughter knowingly tried to interfere with the officers through both shouting at the officers, and attempting to approach the man being arrested. Demster v. City of Lenexa, No. 04-2420, 359 F. Supp. 2d 1182 (D. Kan. 2005).

False Arrest/Imprisonment: Warrant

     Arrestees in two separate cases adequately stated a claim for their false arrest under warrants obtained by officers. Plaintiffs in both cases presented allegations that officers had made false statements that drug substances had been seized from the suspects, and had tested positive for the presence of narcotics. Jenkins v. De La Paz, No. 04-10460, 124 Fed. Appx. 265 (5th Cir. 2005).

First Amendment

     The closing of one corner of an intersection during a visit by President Bush to a city was a reasonable time, place, and manner restriction on protest speech and did not violate the First Amendment. Factual issues, however, as to whether a police officer had warned a protester that crossing the street was prohibited before arresting her for doing so barred granting qualified immunity to the officer on a false arrest claim. Burnett v. Bottoms, No. CV031891, 368 F. Supp. 2d 1033 (D. Ariz. 2005).

Malicious Prosecution

     A motorist could not pursue a claim for damages for alleged malicious prosecution for a traffic infraction in the absence that his conviction or sentence had been reversed on appeal, expunged, declared invalid or otherwise set aside. Koger v. Florida, No. 04-15649, 130 Fed. Appx. 327 (11th Cir. 2005). [PDF]

     Grand jury indictment showed that prosecution of suspect for possessing a gambling device was supported by probable cause, entitling officer who gave grand jury testimony to qualified immunity in suspect's subsequent malicious prosecution lawsuit. The suspect did not claim that the officer had lied during his grand jury testimony, and the indictment created a presumption, which was unrebutted, of probable cause to prosecute. Matheis v. Fritton, No. 03-7719-CV, 128 Fed. Appx. 787 (2nd Cir. 2005).

Other Misconduct: Eviction

     City code enforcement officers were not liable for federal civil rights violations for evicting two elderly residents from their home without a pre-eviction hearing. The officers had the legal authority to issue emergency vacate orders, and had grounds to do so in light of the residents keeping 33 dogs and four birds in the two bedroom house, which was allegedly in an unsanitary condition. Sell v. City of Columbus, No. 03-4654, 127 Fed. Appx. 754 (6th Cir. 2005).

Public Protection: Disturbed/Suicidal Persons

     City was immune under Indiana state common law and could not be held liable for officer's alleged negligent failure to prevent suicide of man who had threatened to shoot himself in the chest. Savieo v. City of New Haven, 02A03-0407-CV-317, 824 N.E.2d 1272 (Ind. App. 2005).

Pursuits: Law Enforcement

     Police officer was engaged in attempting to enforce the law when he pursued a van whose driver he suspected was drunk, which resulted in the pursued van colliding with another motorist's vehicle, causing the driver's death. Under these circumstances, the officer, police department and town were immune from liability under Indiana state law. Chenoweth v. Estate of Wilson, #27A05-0406-CV-313, 827 N.E.2d 44 (Ind. App. 2005).

Roadblocks

     Factual dispute between police officer, who claimed he used no force at all against motorist he stopped at road block, and motorist, who claimed that he grabbed her and repeatedly "slammed" her against a car made summary judgment in her excessive force lawsuit inappropriate. Murry v. Barnes, No. 04-1545, 122 Fed. Appx. 853 (7th Cir. 2004).

Search and Seizure: Home/Business

     Officers had exigent circumstances justifying their warrantless entry into an apartment when they observed an occupant within through an open doorway jump up from a table and run to the back of the residence with a clear plastic bag containing a white powder substance. The officers reasonably believed that the occupant was attempting to destroy contraband. Harris v. Lee, #04-30027, 127 Fed. Appx. 710 (5th Cir. 2005).

Search and Seizure: Vehicle

     Police officer did not violate tow truck driver's Fourth Amendment rights by stopping her vehicle to investigate whether she had towed a car in violation of the provisions of a county ordinance, when the ordinance required that the car owner or their agent be present, and the towing company had a history of repeatedly ignoring that provision of the law. Poole v. Pass, No. 1:04CV1268, 351 F. Supp. 2d 473 (E.D. Va. 2005).

     Sheriff's deputies did not violate an arrestee's rights by impounding his motor home and inventorying the contents after his arrest for driving without a valid driver's license. Despite the arrestee's argument that there were other occupants of the vehicle who could have driven the vehicle away, the impoundment was carried out under the sheriff department's standard policy, and there was no evidence that the deputies acted for the sole purpose of conducting a criminal investigation or in bad faith. Rose v. Loos, #03-35986, 130 Fed. Appx. 78 (9th Cir. 2005).

Sexual Assault and Harassment

     City was properly held liable, under Michigan state law, for police officer's alleged criminal sexual conduct towards three female motorists during separate traffic stops. Intermediate appeals court upholds judgment of $2.625 million against city on the basis of jury verdict awarding drivers $7.5 million, and allocating 35% of the fault to the city. Court rejects argument that the damages awarded were excessive. The lawsuit was brought under a state civil rights statute under a sexual harassment claim. Diamond v. Witherspoon, No. 252657, 696 N.W.2d 770 (Mich. App. 2005). [PDF]

Strip Searches

     Officers who subjected a female shopper to a body cavity search after she activated a security sensor while leaving a store were entitled to qualified immunity, when the evidence showed that she told a male officer she had no objection to being searched, or to waiting for a female officer to arrive to conduct the search. Even if there was a question as to whether the shopper's consent was actually voluntarily, based on alleged prior statements by store personnel before the officers arrived, the officers acted reasonably and on the basis of information indicating the shopper's consent. McNeal v. Roberts, #04-30660, 129 Fed. Appx. 110 (5th Cir. 2005).

     •Return to the Contents menu.

     Article: "Your Vest Won't Stop This Bullet: A Guide to Safer Traffic Stops," by Richard J. Ashton, Grant/Technical Management Manager, IACP. The Police Chief Magazine, Vol. 72, No. 7 (July 2005).

     Article: Chief’s Counsel: The Police Officer as Expert Witness By Karen J. Kruger, Senior Assistant County Attorney, Harford County, Maryland, IACP, The Police Chief Magazine, Vol. 72, No. 6 (June 2005). "According to two recent state court rulings, some officers who offer opinion testimony are expert witnesses and should be presented as such."

     Article: "Physical Fitness," by Daniel E. Shell, Special Projects Coordinator for the Division of Public Safety Leadership, Johns Hopkins University, and retired lieutenant, Maryland State Police, 74 FBI Law Enforcement Bulletin No. 5, pgs. 27- (May 2005). "By addressing several important issues, department leaders can properly plan an effective physical fitness program for their officers." [PDF] [HTML]

     Article: Reaching English-as-a-Second-Language Communities: Talking with the Police. By Jones Moy, Chief of Police, and Brent Archibald, Sergeant, Monterey Park, California, Police Department, IACP, The Police Chief Magazine, Vol. 72, No. 6 (June 2005).

     Body Armor: Announcement by Second Chance Body Armor calling on law enforcement agencies to immediately replace body armor manufactured with Zylon. (June 22, 2005, PDF). IACP President Joseph Estey's Response to Announcement by Second Chance Body Armor. (June 22, 2005).

     Interrogation: A Lawyer's Guide to the Chicago Police Department's Electronic Recording of Interrogations, by Sheri H. Mecklenburg, General Counsel to the Superintendent of the Chicago Police Department (CPD). Answers many lawyers' questions about CPD's new procedure of digitally recording custodial interrogations in places of detention of persons suspected of homicide. (July 18, 2005, 18 pgs. PDF).

     Interrogation: "The Supreme Court Brings an End to the 'End Run' Around Miranda," By Special Agent, Lucy A. Hoover, Legal Instructor, FBI Academy, 74 FBI Law Enforcement Bulletin, No. 6, pgs. 26-32 (June 2005). "Courts consider a number of factors when determining whether suspects subjected to two-tiered interrogation tactics have waived their Miranda rights knowingly, intelligently, and voluntarily." [PDF] [HTML]

     Publications: Improving Access to and Integrity of Criminal History Records. Examines the problem of missing dispositions in State criminal history records and the availability of State records to support the National Instant Criminal Background Check System. The report addresses the accomplishments that the National Criminal History Improvement Program has made since 1995 in improving the quality and accessibility of criminal history records and outlines future challenges in building a national criminal history records infrastructure. Electronic only. 7/05 NCJ 200581 Acrobat file (1.4M) | ASCII file (146K) | Spreadsheets (zip format 17K).

     Report: Report to Congress from Attorney General Alberto R. Gonzalez on U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2004. [PDF]. (July 2005). Appendix 1 and Appendix 2 to the report contain additional information about the efforts of various government agencies and private organizations cooperating with governmental efforts in this area. [PDF]

     Report: The 2005 National Gang Threat Assessment provides a national and regional picture of the threat posed by gangs. This document will help federal, state, and local policymakers and law enforcement administrators to better understand the dimensions of the gang problem and assist them in formulating policy and allocating resources most wisely. The National Alliance of Gang Investigators Associations (NAGIA), with funding and guidance from the Bureau of Justice Assistance and its partner agencies within the Department of Justice including the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Federal Bureau of Investigation, and the National Drug Intelligence Center, conducted this threat assessment and prepared this report. [74 pgs. PDF]

     Terrorism & Homeland Security: IACP Training Key #581 - Suicide Bombers, Part One IACP Training Key #582 - Suicide Bombers, Part Two. Published July 8, 2005, indicating that police officers who encounter suicide bombers should shoot them in the head. Part I covers profiles of suicide bombers and common beliefs behind committing a terrorist act. "By profiling the suicide bomber, law enforcement personnel can better understand the types of actions associated with suicide bombers and can be better prepared to prevent attacks." Part II explains how police and other first responders should react to such incidents.

     Terrorism & Homeland Security: Strategy for Homeland Defense and Civil Support. U.S. Department of Defense. Addresses the Department's roles in the homeland defense mission and support to civil authorities. (June 30, 2005). [PDF]

     Reference:

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

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