CONTENTS

Officer was not entitled to qualified immunity on arrestee's claim that he sprayed pepper spray in his face while he was lying on the ground with both hands cuffed and another officer on top of him. Such use of force, after the arrestee had been subdued, if true, could not be said to be objectively reasonable as a matter of law.

     A police officer in Magnolia, Arkansas stopped a vehicle for going well below the posted speed limit. He noticed two open beer cans on the floor behind the driver's seat, and three passengers in the vehicle--two women and one man. Another officer also arrived on the scene to assist. The male passenger, who gave a false name, turned out to be a suspect sought on two active arrest warrants for failure to appear in court, and the officer placed him under arrest.

     When this passenger asked "why," the officer allegedly told him "you don't ask the questions. I do." One of the officers grabbed the arrestee's right wrist to pull him from the car. The arrestee turned to get out of the car, but did not stand up. The officer then pulled him out of the car and the other officer controlled the arrestee by putting his arms around his neck in a headlock position or choke hold. The two officers and the arrestee fell to the ground, with the arrestee landing face down on his stomach. One officer then placed his knee in the center of the arrestee's back, pulled his left wrist behind his back, and handcuffed the arrestee's left hands. The officer was unable to cuff the arrestee's right hand because that hand was pinned under his body.

     The arrestee later asserted that he then felt a blow to his right ankle from what he believed was a heavy flashlight or baton. The officers were subsequently able to cuff the arrestee's right hand. As he lay face down on the ground with both hands cuffed, an officer allegedly sprayed pepper spray in his face, causing him to experience difficulty breathing. The arrestee was transported by ambulance to a hospital where he was found to have a dislocated right ankle and a vertical fracture through the lower end of the fibular near his ankle with separation of the fragments. He later had to undergo two surgeries to repair his right ankle.

     The arrestee was convicted of obstructing governmental operations by giving a false name and resisting arrest. He sued one of the officers for alleged use of excessive force.

     A federal appeals court upheld the denial of qualified immunity for the defendant police officer. The officer had the right to use some degree of physical coercion to make the arrest, but the court found, examining the circumstances, particularly those concerning the use of pepper spray, that it was "unconvinced" that the officer's actions were objectively reasonable, as a matter of law.

     The arrestee claimed that this officer struck him a heavy blow to his right ankle while the other officer was on top of him, and one of his hands was cuffed. The same officer then allegedly used pepper spray against him, at a time when he was lying face down on the ground with both arms restrained behind his back and in pain due to his leg injury. This, the court stated, if true, could not be said to be "objectively reasonable under the particular circumstances."

     The court stated that even if the arrestee resisted arrest at some point and to some degree, at the time of the use of the pepper spray, he was under control and in his position at the time posed "little or no threat" to the safety of the officers or others, and could reasonably be found to be no longer resisting arrest. Further, the relative lack of severity of the charged offenses did not weigh in the balance as justifying a high degree of force against the arrestee, particularly after he had been subdued.

     Henderson v. Munn, No. 05-1403, 2006 U.S. App. Lexis 5010 (8th Cir. February 28, 2006)

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Officers who placed an airline employee under "arrest" and handcuffed her at the airport as part of a "prank" to celebrate the end of her probationary period, at the request of her supervisors, were not entitled to qualified immunity on her federal civil rights claims. If she truly and reasonably believed the "arrest" was real, their actions violated clearly established law against detaining a person without legal justification. Federal appeals court declines defendant officers' invitation to adopt a "prank" exception to the Fourth Amendment's warrant and probable cause requirements.

     A number of supervisors at Southwest Airlines in Albuquerque, New Mexico allegedly convinced two Albuquerque police officers to "stage" an "arrest" of a woman who was a airline customer service representative, as part of an "elaborate prank." The prank included actual handcuffing, as well as an apparent arrest. The "prank" wound up being a "joke gone bad," and the woman allegedly suffered serious psychological injuries as a result of the incident. She filed a federal civil rights lawsuit against the officers and city, claiming violations of her Fourth and Fourteenth Amendment rights. She also sued the officers, city, supervisors, and the airline for various state law claims.

     A federal appeals court overturned a grant of qualified immunity on the federal civil rights claims, and summary judgment for the officers and city on several state claims. "Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve," the court stated.

     Southwest Airlines prides itself on being a "fun-loving, spirited company," and as part of this "fun-loving" atmosphere, newly hired employees, at the end of their probationary period often find themselves subject to a "prank," according to the court. Examples cited were flying an employee to another town after they were led into an airplane and the doors closed, and dressing another employee in a hula skirt and making them perform a dance for customers. As a result, the plaintiff knew that it was possible she would be played a similar prank as her probationary period came to an end.

     She was working at a ticket counter crowded with customers when the two uniformed and armed officers approached her. One of them ordered her to go with him to answer some questions and escorted her to the end of the ticket counter. She was then informed that in the course of performing her background check, the City Aviation Department discovered an outstanding warrant for her arrest. When she objected that it must be a mistake, the officers demanded that she take off her badges and turn them in, and she did so. The officers then gave them to a supervisor. She asked if the arrest were a joke, but the officers refused to respond, and one of them asked her if she had any unpaid traffic citations.

     They placed her hands behind her back and handcuffed her tightly, as a crowd of employees and customers gathered to watch. The officers then escorted her to an elevator nearby while still in handcuffs and crying. At the elevator, someone jumped out and yelled "congratulations for being off probation." The handcuffs were removed and people began to clap, but the "arrestee" continued to cry. Later that day, she was allegedly found in the break room weeping, and was sent home. She began seeing a psychologist for treatment, and was diagnosed as suffering from post-traumatic stress disorder.

     The appeals court found that these facts, if true, established that the plaintiff was seized. "Unique" to this seizure, however, was the fact that it arose "in the context of a workplace prank." Given that, a jury could be presented with evidence at trial leading it to conclude that a reasonable person would have felt free to leave. However, it was also easy to conclude that a reasonable person might not have felt free to terminate the encounter, given that the officers were uniformed, armed, told her of an arrest warrant, ordered her to accompany them, and finally handcuffed her and led her forcibly toward an exit.

     Addressing the issue of qualified immunity, the appeals court noted, it was compelled to assume that the plaintiff's version of the facts were true, and that she thought the arrest was "real," and that she did not "consent" to the seizure. The issue of whether a reasonable person in the plaintiff's position would have felt free to leave was a factual issue for the jury to decide.

     If it was reasonable for her to believe the arrest was real, the court would conclude that the seizure was unreasonable, since it was carried out without either a warrant or probable cause or any other legal basis for what they did. The conduct alleged, the court stated, would violate "the most minimal Fourth Amendment standard," even that required for an investigatory stop.

     The appeals court rejected the officers' request that they create an "exception to the warrant or probable cause requirement for pranks." Relaxations of these requirements, when adopted by a court, have only been done in "furtherance of unique public safety concerns," and after a "careful balancing" of the individual interests at stake.

No court has ruled that an otherwise unreasonable seizure becomes reasonable when the officers intend it as a prank. We will not do so here. When law enforcement officers acting under color of state law seize non-consenting private citizens, they must act in furtherance of legitimate law enforcement interests and on the basis of sufficient facts.

     The rights allegedly violated were clearly established, so that any reasonable officer would have known that seizing a private citizen "without any legitimate basis was unlawful," and that their perception of the seizure as a prank would not have made the legal standard "less clear."

     The appeals court found that the alleged facts also made viable claims under New Mexico state law for false imprisonment, and assault and battery against both the officers and the city. At the same time, it upheld summary judgment for the city on the plaintiff's federal civil rights claims, since there was no evidence that the allegedly unconstitutional seizure was carried out under an official policy, custom, ordinance, regulation or decision by the city.

     The appeals court further agreed that the plaintiff's sole remedy against the airline and her supervisors was under the state's workers' compensation statute, upholding summary judgment for those defendants on her state law claims.

     Fuerschbach v. Southwest Airlines Co., No. 04-2117, 2006 U.S. App. Lexis 5108 (10th Cir.).

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Sheriff's deputies who allegedly detained a man and his wife, taking them from their home at night, on the basis of an uncorroborated phone call from a hospital nurse stating that a two-year-old child told her mother that the man had "hurt her pee pee" were not entitled to qualified immunity on false arrest and unlawful detention claims.

     The Bernalillo County, New Mexico Sheriff's Department received a phone call from a hospital nurse informing them that a mother had brought her two-year-old girl to the hospital, claiming that the child had complained that the "boyfriend" of her babysitter had "hurt her pee pee." In response, four deputies were dispatched to the residence where the babysitter's boyfriend (who was actually her husband) resided. As the man opened the front door, he was ordered to exit the home, and he was then seized, handcuffed, read Miranda rights, and placed in the back of a patrol car where he was questioned.

     His wife followed him, and when she saw what was happening, headed toward the bedroom to make a phone call. Before she could complete the call, a deputy allegedly entered the home and seized her by the arm, physically escorting her from the residence, and placing her in a separate patrol car where she was also questioned. The deputy allowed her to use his cell phone. The officers then allegedly performed a warrantless search of the home, purportedly for the purpose of finding any children that might be present, and to eliminate the possibility of any unknown threat to officer safety.

     As the investigation continued, the deputies learned that the wife managed a day care facility where she took care of several children, and that the hospital nurse who had made the call to the sheriff's department had engaged in a verbal dispute with the wife and husband after they informed her that they would no longer take care of her child. An officer and a detective were making contact with the nurse at the hospital at the time. They were informed by another nurse, who conducted the examination of the child that "no evidence of penile penetration was present," and that there were two other potential sources of the child's vaginal irritation.

     Because the hospital found no evidence of molestation, the wife and husband were released and permitted to go back inside the home. No criminal charges were ever made against them.

     A federal appeals court found that the four defendant deputies who went to the couple's home were not entitled to qualified immunity, as the facts alleged, if true, showed the violation of constitutional rights under the Fourth Amendment. The husband was allegedly grabbed and pulled from the doorway of his home, handcuffed, Mirandized, placed in the back seat of a locked squad car, and questioned. The court also noted that the encounter took place after midnight. A jury could find that this was an arrest without probable cause, and that it violated clearly established constitutional rights.

     In this case, additionally, witnesses were readily available for interviews, physical evidence was available, and medical diagnosis "was forthcoming," but the deputies allegedly did not interview the mother, nurse, or doctor, inspect the child's clothing for possible signs of sexual assault, or wait for a preliminary report from the doctor before seizing the husband on the "flimsiest of information," the alleged statement of a two-year-old child relayed to them by a nurse, who heard it from the girl's mother, which the officers could not reasonably rely on to make an arrest when it was not corroborated by anything and was not reasonably trustworthy enough on its own to justify the seizure.

     While the seizure of the wife was found to be less intrusive than that of her husband, in that she was not handcuffed, was not Mirandized, was allowed to use the officer's cell phone, and was allegedly subjected to less force, as well as not appearing to be the object of the officers' primary suspicions, but even as an investigatory detention, it was required to be supported by reasonable suspicion. The statement by the two-year-old, however, alleged no wrongdoing whatsoever on the part of the wife, and did not present a likelihood that she would destroy material evidence. Accordingly, the deputies were not entitled to qualified immunity on her wrongful seizure claim either.

     Cortez v. McCauley, No. 04-2062 2006 U.S. App. Lexis 3270 (10th Cir.).

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African-American man detained by police officer in front of his home as a suspect in an assault and robbery was entitled to a new trial in his unlawful detention lawsuit when the officer's detention of him was not based on any articulated facts. Subsequent pressing of criminal charges against him and another African-American male for alleged involvement in the crime, while failing to bring similar charges against a white male also identified by the victim as involved in the crime, were not shown to be racially motivated.

     A Saint Joseph, Michigan police officer was flagged down by a man who stated that he had been assaulted and robbed by a group of four or five males, some black and some white, all wearing white t-shirts. A witness at the scene told the officer that he knew two of the assailants, and identified them by name. Two other officers then arrived in the area, in response to the officer's call for assistance.

     One of the officers, while patrolling the area, observed three African-American males and a white male walking together a few hundred feet from the site of the crime. While only one of the four men was wearing a white t-shirt at the time, the officer knew two of the others from prior encounters, and knew that they were in an area away from where they lived. One of the men also turned out to be one of the persons identified by name by the witness, so that the officer detained all four of the men and brought them to the crime scene to be viewed by the victim.

     At the same time, one of the other officers, patrolling a few blocks away saw a black male on the sidewalk in front of his home, wearing a faded blue t-shirt. The officer stopped and questioned the man, who denied knowing anything about the robbery. Because the man was unwilling to get into the patrol car, the officer directed him to walk to the crime scene, and the man complied. The officer subsequently confirmed that while this man was not in "physical custody," he was detained and not free to refuse his order.

     At the crime scene, the victim positively identified all five of the men rounded up and presented by the police as the men who attacked him. The five men were then taken to the police station for questioning before being released. Charges brought against two of the men, both black, were subsequently dropped, and they sued the officers and the city, claiming both selective law enforcement on the basis of race and unreasonable detention in violation of the Fourth Amendment. The two plaintiffs included the man detained in front of his home, and one of the black males in the group of four detained. A jury returned a verdict for the defendants on all claims, and the plaintiffs appealed the denial of their motion for a new trial.

     A federal appeals court found that the jury's verdict on the claims by the plaintiff detained as part of the group of four was supported by the evidence. The officer detaining him had information that an eyewitness to the crime had identified two of the men in the group of four by name as the assailants. Additionally, the group contained both black males and a white male, as described by the victim, and one was wearing a white t-shirt. This, combined with the fact that the officer knew two of the men from prior incidents, justified his suspicions that the men could have been involved in the crime, so that a brief detention was warranted.

     The appeals court found that the detention of the second plaintiff, found in front of his home, was different, however. The officer's detention of him appeared to be based on no articulated facts or observations other than that the officer knew him and, following the broadcast of the robbers' description, saw him in the general vicinity. He was not in the company of any other persons, he was wearing a blue rather than white t-shirt, and he was on the sidewalk in front of his own home.

To assume that a young man lawfully walking on the sidewalk in front of his home and dressed differently from the described assailants is somehow involved in the crime being investigated stretches even the concept of a "hunch" beyond its breaking point. The record before us on appeal contains absolutely no evidence to support the jury's verdict that the police had a "reasonable" suspicion that [this] plaintiff was involved in criminal activity at or before the time of his detention.

     The officers' argument on appeal that the victim's subsequent identification of this plaintiff at the scene supported the jury's verdict, the court further reasoned, "begs the question," since events that occurred after the detention cannot be used retroactively to justify it as reasonable.

     Without any reasonable basis to support the detention of this plaintiff, the appeals court concluded that the jury's verdict on his claims was against the "clear weight of the evidence," and that the trial court abused its discretion in denying him a new trial on his unreasonable detention claim.

     The appeals court upheld the rejection of the selective enforcement claim. While the officers did indeed only press criminal charges against African-Americans detained, and failed to pursue criminal charges against the one white male detained, who was also initially identified by the crime victim, this decision was not based on race, but rather because the victim, who initially said this man had struck him, subsequently changed his story, and admitted that this man had been behind him, and not in a position to strike him. The different treatment of the plaintiffs and the white detainee, therefore, was not based on race, but instead on the circumstances of their alleged individual involvement in the crime. In the absence of any evidence of a discriminatory purpose, it was no abuse of discretion by the trial court to uphold the jury's verdict on the selective enforcement claims.

     Mitchell v. Boelcke, No. 04-2219, 2006 U.S. App. Lexis 5120 (6th Cir.).

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Trial court abused its discretion in granting summary judgment to police officers in lawsuit over their shooting and killing of a suspect without allowing the plaintiff an opportunity to discover whether video cameras in police vehicles at the scene of the incident recorded it, and what such videotapes might show.

     The estate of a man shot and killed by Asheville, North Carolina police officers filed a federal civil rights lawsuit against the police department and three officers, claiming excessive use of force. The defendants moved for summary judgment, and the plaintiff argued that the trial judge could not rule on that motion without allowing an opportunity to discover whether cameras installed in police vehicles which were on the scene recorded videotapes of the incident.

     A federal court has ruled that in granting summary judgment for the defendants without allowing the discovery, the trial court abused its discretion.

     The man and his father were involved in a physical altercation concerning his sister. The father was restraining the sister, who had just run away from a youth facility, while the brother was attempting, unsuccessfully, to free her. The brother used his father's shotgun to fire three rounds, striking both his father and sister, who were taken to the hospital in critical condition but survived. The brother then took the shotgun and fled in his father's truck.

     A high-speed chase of the truck by police officers then occurred, and when it ended, the suspect allegedly pointed the shotgun at one of the officers. As backup units started to arrive on the scene, the suspect jumped back into the truck, and drove away. When the suspect allegedly pointed the barrel of the shotgun out of the truck window and lowered the barrel to aim at officers, they shot 30 rounds, six of which struck and killed him.

     The plaintiff argued that the decedent could not have pointed his shotgun out the window, as the officers claimed, because physical evidence demonstrated that the window was closed when it shattered, and she asked for additional time to seek production of any videotapes of the incident which might have been made by police cameras.

     The appeals court ruled that, given these facts, the trial court could not have conducted a thorough assessment of the officers' statements without allowing discovery as to whether videotapes of the incident existed, and, if so, what they showed. The appeals court further noted that the plaintiff had previously requested the production of any such videotapes, but had not received a response.

     The appeals court stated that once discovery related to the videotapes was completed, then the trial court could again consider the defendants' motion for summary judgment if appropriate.

     Ingle v. Yelton, No. 05-1556, 2006 U.S. App. Lexis 5779 (4th Cir.).

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Police officer who suffered eye injury during "live fire" training exercise could not recover damages on the basis of alleged violation of his civil rights because of the police chief's decision to order officers to wear their riot helmets during the exercise, instead of specially designed face masks.

     An Evans, Colorado police officer was injured when a bullet flew up beneath his "riot helmet" during an intense "live fire" training exercise with other officers, causing him to lose 57% of his vision in one eye. The exercise was part of the department's firearms training program and simulates various scenarios, with officers switching off playing the role of criminals and officers.

     The training exercise is meant to replicate "combat" situations that an officer might encounter on the street. The training makes use of "Simunition," a highly-specialized live ammunition specially designed to replace the standard live ammunition in officers' personal service weapons. This ammunition is available for both .38 calibers and nine-millimeters, and uses smokeless gunpowder as a propellant, firing a plastic, liquid-filled bullet-shaped projectile which "shatters" on impact, marking the target with brightly-colored liquid. It is designed to be painful to a person on impact, and may leave bruises, welts, and abrasions on unprotected skin.

     The manufacturer of this ammunition also developed protective equipment to be worn during the training, including a facemask with 360-degree head coverage, and other items. While three different firearms instructors had allegedly told the police chief that the manufacturer required its own facemasks to be used during the exercises, he did not authorize the purchase of that equipment, but instead authorized the use of "riot helmets" during the training. Such helmets cover the head above the neck, but do not protect the neck or throat, and are positioned so that a gap of approximately three inches exists between the wearer's face and the plastic shield.

     During the exercise, the plaintiff officer was injured when a Simunition bullet flew up beneath the plastic shield of his helmet and hit him in his right eye. The injured officer asserted claims for violation of his Fourteenth Amendment rights against the city, and also against the police chief individually. The trial court dismissed the complaint for failure to state a claim.

     The plaintiff had argued that his injuries were a violation of his Fourteenth Amendment due process right to bodily integrity. Such a liberty interest in bodily integrity, the appeals court noted, has been found only in very limited circumstances such as those of abortions, end-of-life decisions, birth control decisions, and when persons are subjected to dangerous or invasive procedures where their personal liberty is being restrained, such as being beaten to death while in custody, or a person's stomach is pumped to obtain evidence of drugs.

     Under Collins v. City of Harker Heights, 503 U.S. 115 (1992), however, the U.S. Supreme Court held that substantive due process was "not a guarantor of workplace safety," and that claims could not be based on a government employer's failure to provide an employee with a safe working environment. Additionally, the legal standard for determining whether there has been a substantive due process violation is whether the challenged action "shocks the conscience." 

     While the plaintiff officer argued that his eye injury enables him to claim that his right to bodily integrity was violated by the police chief's decision not to purchase the Simunition manufacturer's face mask and protective gear, the issue was whether the police chief's directive to instead wear riot helmets was "conscience-shocking conduct."  Under Collins, it was held that the city's failure to train its employees about known workplace hazards was not conscience shocking, and that rather than federal civil rights law, state employment law would normally govern such circumstances. In this case, the court found,

Plaintiff is asking us to play Monday-morning quarterback about a decision (providing riot helmets rather than more protective face gear) that seems, at most, negligent. This type of second-guessing "a rational decision-making process that takes account of competing social, political, and economic forces" is specifically cautioned against in Collins: "Decisions concerning the allocation of resources to individual programs . . . and to particular aspects of these programs . . . involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of the Government for the entire country." In instances where the behavior complained of seems more negligent than egregious or deliberate, we heed the Supreme Court's cautionary words and steer clear of territory of which we are not the best reviewers.

      The court stated that it did not wish to "understate" the injury the plaintiff suffered, but that it was the "result of allowing a risk, perhaps not even an unreasonable one, to persist in the workplace."

     The appeals court also rejected arguments that the plaintiff should be able to recover on the basis that the governmental action created a special danger to him, or that there was a "special relationship" between him and the defendants, imposing a duty of protection. These doctrines, the court found, do not apply in the circumstances of the case. The danger creation theory is an exception to a general rule that governmental actors are not liable for the violent acts of third parties, where this case involves an injury to one governmental actor by another, rather than by a private third party.

     The special relationship concept is another exception to the general rule that government actors are not responsible for private acts of violence, and applies in such circumstances as a person being in custody, or being furnished with special promises of protection that they rely on. The court noted that this doctrine "is not triggered in an employment relationship," which is assumed to be "consensual."

     Finally, the appeals court found that it could not be said that it was clearly established that the requirement that the officer wear his riot helmet during the exercise, rather than the manufacturer's protective gear, violated any constitutional right to bodily integrity.

     Moore v. Guthrie, No. 04-1435, 2006 U.S. App. Lexis 4171 (10th Cir.).

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County and officer were not liable for woman's murder by her boyfriend, based on officer's dispatch to her residence following 911 calls, and decision to leave when he failed to hear any indications of a dispute inside. These actions neither created nor increased the danger that the woman would be killed, so there could be no liability under a "state-created danger" theory.

     A women having a conflict with her boyfriend allegedly phone 911 three times seeking assistance. After the third call, a police cruiser arrived at her residence. The officer who arrived did not hear any signs of a dispute within the apartment. When neighbors told the officer that they were not aware of any conflict inside the apartment, the officer cleared the call and left the scene. Unknown to him, the boyfriend was restraining the woman inside the apartment, and their conflict continued after the officer left, with the boyfriend eventually killing her.

     The woman's estate filed a lawsuit against the Franklin County, Ohio Board of Commissioners, the county, the county sheriff, the officer, and a communications technician. The lawsuit asserted a claim for violation of federal civil rights under a "state-created danger" theory of liability for the boyfriend's actions, as well as a wrongful death claim under state law. The plaintiff argued that the arrival and departure of the officer without intervening in the conflict increased the risk of harm to the woman, violating her substantive due process rights.

     A federal appeals court upheld summary judgment on the federal claim. The trial court remanded the state law claim to Ohio state courts, declining to exercise jurisdiction.

     The appeals court agreed that the plaintiff had not produced evidence to show that the county created or increased the risk that the woman would be harmed.

     The court noted that the purpose of the due process clause is to protect people from the state, not to ensure that the state protects them from each other. It therefore ordinarily cannot be used to hold government liable for harm inflicted by private parties. One exception is when actions by the government either create or increase the risk that they will be exposed to private acts of violence, placing them in harm's way.

     The appeals court found that merely dispatching the officer to the scene was not an "affirmative" act creating or enhancing the danger. The woman and her boyfriend were already involved in a physical confrontation before an officer was dispatched. There was expert witness testimony that even before the 911 calls, the woman was at high risk of being killed by her boyfriend, primarily due to the fact that she was attempting to leave the relationship.

     The court also rejected the argument that there was evidence that the officer's actions in arriving and then not intervening "emboldened" the boyfriend, and thereby increased the likelihood that he would kill the woman.

     The appeals court noted that finding liability on the mere basis that the officer was dispatched to the scene, despite not intervening would discourage law enforcement officers from responding to requests for assistance.

     It also found that the officer, in merely clearing the call, essentially doing nothing, did not perform an "affirmative act" which could be viewed as creating or enhancing the danger.

     The court agreed that the inability of the authorities to prevent the woman's murder despite her "numerous" 911 calls is "deeply troubling," and there was evidence that the defendants failed to follow their established procedure for domestic violence calls when answering the first call, such as asking questions from a prepared list. Additionally, those answering the second call may have underestimated the urgency of her situation. But while the response of the county may not have been "faultless," and a more aggressive intervention might be preferred, none of their actions directly increased the woman's vulnerability to danger or "placed her in harm's way."

     May v. Franklin County Comm'rs, No. 05-3188, 2006 U.S. App. Lexis 3528 (6th Cir.)

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Police officers were not liable for a bystander's death at a street drag race when they did not have custody of the decedent when the accident occurred, and had not placed her in any additional danger than she voluntarily assumed before the officers arrived on the scene. This remained true even if they had an opportunity to stop the drag race from occurring and failed to do so.

     Late one night, two motorists began a drag race on a public street on the outskirts of Detroit, Michigan. After approximately one-sixth of a mile, one of them lost control of his car and it veered into a crowd of spectators, striking a woman and killing her. Police officers from the City of Lincoln Park, a Detroit suburb, allegedly arrived on the scene before the race and had an opportunity to prevent it. It was alleged that not only did they fail to stop it, but that they also "expressly allowed" the participants to proceed with it.

     For their part in the incident, the officers faced separate state law criminal charges, a state-law civil lawsuit, and eventually a federal civil rights lawsuit claiming that the misconduct of the officers and city violated the decedent's substantive due process rights under the Fourteenth Amendment.

     A federal appeals court has rejected liability in the civil rights lawsuit. The officers and city could not be held liable for the woman's death, the appeals court ruled, because she was not in their custody at the time of the accident, because the officers' actions did not place her in any more danger than she voluntarily undertook before they arrived, and because the officers' participation in "this tragedy" did not specially place the deceased woman at any more risk than was faced by the other 150-300 people attending the drag race.

     The appeals court noted that even if there was any doubt about these conclusions, it was still clear, "at a minimum," that the plaintiff estate had not shown a violation of constitutional rights that were "clearly established" at the time of the race, so that the officers would be entitled to qualified immunity in any event.

     The appeals court also stated that, as the officers did not violate the decedent's constitutional rights, there could be no showing that any city or police department policy caused a constitutional deprivation.

      Jones v. Reynolds, No. 04-2320, 2006 U.S. App. Lexis 4940 (6th Cir.).

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     Editor's Note: The decedent's estate had previously been granted a $25 million default judgment in a state law civil lawsuit against the drivers. The state court granted summary judgment against the estate on its state law claims against the officers and the city, concluding that the proximate cause of the death was solely the actions of driver who struck her. See Jones v. Reynolds, 2005 Mich. App. Lexis 884 at *5, No. 250616, slip op. at *6 (Mich. Cir. Ct. unpublished Apr. 7, 2005); and prior decision at Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (Mich. 2000).

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Search of woman's second floor apartment under a search warrant intended for the third floor apartment of a male suspected of drug dealing was not a violation of her Fourth Amendment rights when the entrance to the third floor was a doorway on the second floor, and the suspect, arrested on the sidewalk outside while selling drugs, told officers he lived on the second floor.

     A woman sued St. Louis, Missouri police officers for an allegedly unreasonable search of her apartment and seizure of herself pursuant to what she argued was an invalid warrant.

     The woman lived in an apartment on the second floor of the building, and claimed that the investigation which resulted in the incident in question involved a determination that another resident of the same building, a male living on the third floor, was involved in drug trafficking. Confusion may have arisen because there was an entrance to his third floor apartment on the second floor, and an internal stairway leading to the third floor. The woman claimed that the officers searched her apartment and detained her for an hour, but actually intended to search the third floor apartment, so that the search and seizure violated her Fourth Amendment rights.

     The affidavit for the warrant did name the male resident as the suspect, but described him as living in a second floor apartment. It also described the building as a two-story dwelling, making no mention of a third floor. It also contained information from a confidential source concerning heroin and crack cocaine transported to the suspect's apartment for apparent sale.

     Officers arriving at the building to execute the warrant observed the male suspect leave the building and conduct narcotics transactions on the sidewalk, and placed him under arrest. In response to questions, he also stated that he lived in the second floor apartment in the building. When the officers got to the second floor landing, they found two doors there, and used a sledgehammer to break down the door on the left, which was the door to the woman's apartment. The search warrant affidavit and the warrant itself referred to apartment A, but neither door on the second floor landing was marked with a letter "A".

     Officers searched her apartment briefly and allegedly detained her for an hour. Officers subsequently also searched the third floor apartment, and one of them apologized to the woman for breaking into "the wrong apartment."

     A federal appeals court upheld summary judgment for the defendants, finding that the plaintiff failed to overcome a presumption of validity for the affidavit in support of the search warrant. The trial court had reasoned that the identification of her apartment as apartment "A" rendered the warrant invalid, because it also specifically authorized a search of the "second floor" apartment. Based on that, and the suspect's statements to the officer, when arrested while selling drugs outside, that he lived in the "second floor" apartment made it reasonable for the officers to conclude that narcotics trafficking was being conducted from the woman's apartment.

     Further, the affidavit for the warrant stated that during surveillance, drug transactions had been conducted in the doorway of the second-floor apartment, and reference was also made to the "left door."

     In summary, the officers searched a residence for which they did have probable caused, based on the descriptions of the transactions at the apartment door and information from a confidential source about drug dealing at the second-floor apartment.

     The statements in the affidavit were not shown to be deliberately false or made with reckless disregard for the truth, even though they were mistaken as to which door on the second floor the transactions occurred at.

     The facts did not establish an unreasonable search and seizure, as the officers had a valid warrant for the apartment searched, and it was permissible to detain her as an occupant during a reasonable search of the apartment. When they were told that they might be in the wrong apartment, it was also reasonable for them to investigate and search the third-floor apartment before terminating the search of the woman's apartment. The officers could reasonably attempt to guard against the possibility that the woman provided misinformation in order to create an opportunity to destroy evidence or flee the scene.

     Walker v. Bonenberger, No. 04-3955, 2006 U.S. App. Lexis 4522 (8th Cir.).

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California motorist arrested for DUI failed to show that officers violated either his federal or state rights by using force to obtain a blood sample for testing.

     A motorist arrested for DUI claimed that several Fountain Valley, California police officers injured him when they used force to obtain a blood sample after his arrest. He asserted claims for both unreasonable search and seizure in violation of his federal constitutional rights, and for assault and battery under state law. A state appeals court has upheld qualified immunity for the individual defendants on the federal civil rights claims and the dismissal on the state law claims.

     The motorist was stopped late one evening after violating several traffic laws, and displayed symptoms of intoxication, admitted drinking two beers that day, as well as taking some pain medication for a back injury. The officer began conducting field sobriety tests, but stopped when the arrestee complained of pain and began shaking. The motorist did not present a driver's license, and claimed he had left it elsewhere, but the police eventually found a suspended Nevada driver's license in his wallet. The arrestee allegedly failed to cooperate during the administration of a Preliminary Alcohol Screening breath test, pretending to blow into the machine and placing his tongue over the mouthpiece in violation of instructions. After six attempts, the officers obtained two acceptable results, indicating a blood alcohol content of .092 and .095 respectively.

    He was then placed under arrest for intoxicated driving. At the police station, the arresting officer decided to conduct a blood test. Several unsuccessful attempts to obtain voluntary submission to the withdrawal of a blood sample were made. A number of officers then handcuffed the arrestee, placed him in a chair with his arms and hands behind the backrest, and had a technician withdraw a blood sample. The arrestee later claimed he suffer injuries to his back, face, and wrists, as well as emotional distress, as a result of these actions. He later pled guilty to reckless driving, and other charges against him were dismissed.

     The appeals court noted that prior California case law had held that an officer's failure, under these circumstances, to advise an arrestee that he could choose between blood and breath tests, or to honor an arrestee's choice of a particular test does not amount to a constitutional violation, even though it may fail to comply with the procedures stated in the state's implied consent law.

     It further rejected the plaintiff's argument that his Fourteenth Amendment due process rights were violated because the implied consent law protected a "liberty interest." The court noted that the plaintiff did not suffer a loss or suspension of driving privileges for failing or refusing to comply with the test, and that, when arrested, his driving privileges were already suspended.

     The appeals court also upheld the trial court's determination that the officers did not use excessive force in compelling the taking of the blood sample. It also noted that under such circumstances, alcohol in the blood may be eliminated from the body over time, which may create exigent circumstances justifying measures to ensure the timely obtaining of a sample. Finally, it found that the plaintiff did not establish a violation of his rights under state law.

     Ritschel v. City of Fountain Valley, No. G034264 2006 Cal. App. Lexis 275 (Cal. 4th App. Dist.).

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Assault and Battery: Physical

     Appeals court upholds jury verdict in favor of police officers sued for allegedly using excessive force against arrestee who shot an officer prior to his capture. Testimony by the officer concerning his being shot was admissible because it was relevant to show the "perspective" of reasonable officers at the scene of the capture. Dodd v. Corbett, No. 03-3978, 154 Fed. Appx. 497 (7th Cir. 2005).

     Wisconsin Supreme Court rules that preponderance of the evidence, rather than "clear and convincing evidence" was the proper standard in a federal civil rights lawsuit for excessive force, and orders a new trial on liability in the case based on the trial court's improper use of the "clear and convincing evidence" standard for the burden of proof. Shaw v. Leatherberry, No. 2003AP2316, 706 N.W.2d 299 (Wis. 2005).

     Even if arrestee's claim that officer had grabbed him and threw him to the floor during a DUI arrest were true, those actions did not constitute an excessive use of force in the absence of any proof that those actions caused his injuries of a broken hand and loose tooth. Alcoholic arrestee with a history of blackouts himself stated that he lost consciousness, and three officers stated that he subsequently injured his hand by punching his hand against the door in his holding cell. Thomsen v. Ross, No. 03-CV-1192, 368 F. Supp. 2d 961 (D. Minn. 2005).

     Officer was not entitled to summary judgment on arrestee's claim that he used excessive force by grabbing the handlebar of his moving motorcycle to prevent him from leaving a parking lot, resulting in injuries. Hastings v. Hubbard, No. 04-4403, 151 Fed. Appx. 357 (6th Cir. 2005).

Defenses: Sovereign Immunity

     Police officers' alleged actions of continuing to beat handcuffed arrestee after he was subdued was malicious and therefore beyond the scope of their employment. The city which employed them was therefore not liable for their actions but rather immune from liability under the Mississippi Tort Claims Act. City of Jackson v. Powell, No. 2003-CA-01013, 917 So. 2d 59 (Miss. 2005).

Domestic Violence

     Police officers reporting to the scene of a domestic dispute did not have an affirmative duty to remove weapons from the home, and therefore could not be liable for the husband's subsequent action of shooting his wife before killing himself. Halpin v. Town of Lancaster, 806 N.Y.S.2d 810 (A.D. 4th Dept. 2005).

False Arrest/Imprisonment: No Warrant

     Officer's arrest of passenger for obstruction, based on refusal to remain in the vehicle during a traffic stop was supported by probable cause. Coffey v. Morris, Civ. A-No. 5:05CV00010, 40 F. Supp. 2d 542 (W.D. Va. 2005).

     The mere fact that a number of officers were involved in the warrantless arrest of residents in their home, and that a number of constitutional violations allegedly occurred during the incident was insufficient to show that the city failed to properly train and supervise the officers. There were no facts alleged to show how such purported inadequacies in training or supervision caused the plaintiffs' damages. Gast v. Singleton, No. Civ.A. G-05-427, 400 F. Supp. 2d 794 (S.D. Tex. 2005).

     Officers had probable cause to arrest an alderman, attending a closed town board meeting, for refusing to leave after being ordered to do so because he insisted on making a tape recording of the proceedings despite a vote against such recording. King v. Jefferies, No. 1:04CV00007, 402 F. Supp. 2d 624 (M.D.N.C. 2005).

     Officer, despite incompetent administration of field sobriety tests, had sufficient evidence of intoxication to have arguable probable cause for initially arresting a driver for operating a vehicle under the influence of alcohol and therefore had qualified immunity from liability for false arrest, but lacked such probable cause to continue to detain him for four hours after receiving the results of a breath test showing the motorist's blood alcohol level was zero, and therefore was not entitled to qualified immunity for the continued detention. Strickland v. City of Dothan, Alabama, No. 1:04cv1045, 399 F. Supp. 2d 1275 (M.D. Ala. 2005).

     Police detective who arrested suspect on kidnapping charges for which he was subsequently acquitted was not entitled to qualified immunity on false arrest claim when there were indications that he ignored differences between the victim's description of her abductor and the appearance of the arrestee, who had 42 moles on his face, which the victim never mentioned seeing. Additionally, the man arrested also lacked the cleft or "butt" chin and scar which she did describe. Ramirez v. County of Los Angeles, No. CV 04-6102, 397 F. Supp. 2d 1208 (C.D. Cal. 2005).

False Arrest/Imprisonment: Warrant

     Man arrested under a warrant issued based on his failure to pay alimony had an arguable civil rights claim. He contended that the officers had no authority under the warrant to immediately incarcerate him, but instead should have merely brought him before the judge. Rodriguez v. Garcia, #CIV. 03-2238, 403 F. Supp. 2d 174 (D. Puerto Rico. 2005).

Family Relationships

     Parent of adult who died from cardiac arrest from cocaine-induced delirium while being transported by officers could not sue for damages under 42 U.S.C. Sec. 1983 for the deprivation of her relationship with her son, since she had no constitutionally protected liberty interest in that relationship. She also could not vicariously assert a Fourth Amendment claim on behalf of the decedent. Hannah v. City of Dover, No. 05-2422, 152 Fed. Appx. 114 (3rd Cir. 2005).

     Parents of armed robbery suspect shot and killed by police officers had no standing under California law to pursue a federal civil rights lawsuit or state law claims arising out of the incident on their own behalf when they were not financially dependent on the decedent. Foster v. City of Fresno, No. CVF035306, 392 F. Supp. 2d 1140 (E.D. Cal. 2005).

Firearms Related: Intentional Use

     City of Chicago reaches $1.75 million settlement with man who lost an eye when officers fired on the vehicle in which he was traveling as a passenger when he was a 15-year-old. The vehicle was allegedly then traveling on the sidewalk and towards a group of police officers on the corner. The officers claimed that they fired in self-defense, believing that the vehicle was trying to run them down, and the vehicle did hit one of the officers. The plaintiff in the lawsuit claimed, however, that the shot that struck him was fired by an officer after the car had passed him by, and when none of the officers were in any further danger from the vehicle. A total of 25 shots were fired at the car. Bell v. City of Chicago, No. 01L3148, Circuit Court of Cook County, Illinois, County Department, Law Division, February 6, 2006, reported in Chicago Daily Law Bulletin, p. 1, February 7, 2006.

First Amendment

     City was not entitled to summary judgment in lawsuit by protester prohibited by city from displaying an anti-homosexuality banner on highway overpasses, as there were genuine issues of fact as to whether the city had acted for the purpose of ensuing traffic safety based on the distraction the banner presented or on the basis of the content of the message displayed, in violation of the First Amendment. Ovadal v. City of Madison Wisconsin, No. 04-C-322, 401 F. Supp. 2d 949 (W.D. Wis. 2005).

Governmental Liability: Supervision

     Sheriff was not individually liable for alleged use of excessive force against arrestee by deputy on the basis of failure to properly supervise him when there were no prior complaints about the deputy's conduct. Marley v. Crawford County, Arkansas, No. 04-2042, 383 F. Supp. 2d 1129 (W.D. Ark. 2005).

Governmental Liability: Training

     Town was not liable, on the basis of alleged inadequate training, for the death of a drug-intoxicated arrestee in the course of an arrest, allegedly through positional asphyxia. The court found that the town did not have information about the risks of a cocaine-induced excited delirium and the potential serious consequences of a prone restraint of such an arrestee, and therefore did not act with deliberate indifference in failing to train its officers concerning such circumstances. Watkins v. New Castle County, No. CIV.A. 03-791, 374 F. Supp.2d 379 (D. Del. 2005).

Malicious Prosecution

     Officer had probable cause to swear out a criminal complaint against a homeowner for animal fighting and cruelty to animals. Officer was not liable for malicious prosecution when he based his complaint on a sworn witness statement concerning dogfights, and his own observation that the dogs in question had scars consistent with such fights. Garraway v. Newcomb, No. 04-4626, 154 Fed. Appx. 258 (2nd Cir. 2005).

Negligence: Vehicle Related

     Police officer's action of approaching and then continuing on through an intersection in his unmarked police car constituted gross negligence, so that a motorist who broadsided the police vehicle in the intersection should not have been allocated any fault for the accident. Damage award of $5,000 to injured motorist for pain and suffering was "abusively low," and should be increased to $12,000, along with $1,000 for future medical treatment. Court upholds award of $6,000 to motorist's husband for loss of consortium. Spears v. City of Scott, No. 05-230, 915 So. 2nd 983 (La. App. 3rd Cir. 2005).

Off-Duty/Color of Law: Arrest Related

     City was not liable for off-duty police officer's alleged use of excessive force in the course of an arrest while employed as a security guard by a private entity, whether the officer was acting in his official capacity as an officer or in his capacity as a private security guard. If he was acting on behalf of his private employer, he acted outside the scope of his employment for the city, whereas if he was acting in his official capacity, the city had governmental immunity under state law since the officer's alleged use of force amounted to intentional conduct which was outside a state statute's waiver of governmental immunity. Morgan v. City of Alvin, No. 01-02-01212, 175 S.W.3d 408 (Tex. App. 1st Dist. 2004). See also Schauer v. Morgan, 01-04-00142, 175 S.W.3d 397 (Tex. App. 1st Dist. 2005), ruling that the officer, as a city employee, had immunity from liability in the arrestee's claims against him individually, since the immunity granted to government employees under the Texas Tort Claims Act is not limited to actions carried out within the scope of their employment or in good faith.

Police Plaintiff: Training Injuries

     Deputy sheriff was acting within the scope of his employment when he injured fellow deputy's knee during practice of a "common Peroneal" maneuver in a training class. Sheriff was therefore vicariously liable for the injury. Court finds $150,000 was appropriate damage award for deputy who required major reconstructive knee surgery, but was able to resume his duties. Court also upholds $25,000 award to deputy's wife for loss of consortium, when she was on bed rest while pregnant when deputy was unable to help with many household chores since he was on crutches and had limited mobility. Albert v. Farm Bureau Insurance Company, No. CA. 05-352, 916 So. 2d 1238 (La. App. 3d Cir. 2005).

Pursuits: Law Enforcement

     Officer failed to show that he pursued a suspect in good faith during a high speed chase, as required for an official immunity defense under Texas state law in a lawsuit filed by a motorist whose car was struck by the pursued suspect's vehicle. The officer, in his summary judgment affidavit did not state any facts to show that he assessed the risk of harm to members of the public if he continued his pursuit. Conklin v. Garrett, No. 12-04-00344-CV, 179 S.W.2d 626 (Tex. App. 12th Tyler 2005).

Search and Seizure: Home/Business

     Conservation officer who was lawfully on the premises did not violate the Fourth Amendment rights of the owner of a recreational cabin by looking into the window in order to check for a possible intruder. His basis for his action was a laudable goal of "community caretaking." Taylor v. Humphries, No. 1:03-CV-225, 402 F. Supp. 2d 840 (W.D. Mich. 2005).

Search and Seizure: Vehicle

     Police officer was not entitled to qualified immunity on motorist's claim that he commanded her to stop her vehicle through display of his authority, although she was an "innocent" driver. Her right to be free from unreasonable seizure was clearly established. Kingdom v. City of Rivera Beach, No. 05-10870, 154 Fed. Appx. 131 (11th Cir. 2005).

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     Article: "Drowning Investigations," By Gary Haupt, 75 FBI Law Enforcement Bulletin No. 2, pgs. 14-22 (February 2006). "Agencies need to remain prepared to handle these unique cases when they arise." Also see, the Missouri State Water Patrol's resource, The Supplemental Underwater Recovery Report available on the agency’s Web site at http://www.mswp.dps.mo.gov/SuppRecoveryReport.pdf

      Article: "Law Enforcement Online," By Lesley G. Koestner, 75 FBI Law Enforcement Bulletin No. 2, pgs. 1-6 (February 2006). "As the FBI evolves from its traditional focus on law enforcement to its post-September 11 mission, which includes the homeland security priorities of counterterrorism, counterintelligence, and cybercrime, LEO plays a crucial role."

    Article: "Protecting Personal Privacy: Drawing the Line Between People and Containers " By Michael J. Butzomi, 75 FBI Law Enforcement Bulletin No. 2, pgs. 26-31 (February 2006). "Law enforcement officers must understand and discern the limitations imposed on their authority in order to respect the rights guaranteed to people."

     Criminal Records: Survey of State Criminal History Information Systems, 2003 Describes the status of State criminal history records systems at yearend 2003. The data presented are used as the basis for estimating the percentage of total State records that are immediately available through the FBI's Interstate Identification Index and the percentage that include dispositions. Other data presented include the number of records maintained by each State, the percentage of automated records in the system, and the number of States participating in the FBI's Interstate Identification Index. The publication also contains information regarding the timeliness of data in State record systems and procedures employed to improve data quality. The report is an update of Survey of State Criminal History Information Systems, 2001, released in September 2003, and is the eighth in the series that began with 1989 data. 02/06 NCJ 210297 Acrobat file (2.5M) | ASCII file (53K) | Spreadsheets (zip format 54K)

     Crime Victims: The Office for Victims of Crime (OVC) has published What You Can Do If You Are a Victim of Crime. This brochure highlights victims’ rights, includes compensation and assistance programs, and lists national organizations that can help them find information or obtain referrals. The resource also can be customized with local contact information, including nearby victim resources, and printed on standard 8 ½- by 11-inch paper. This brochure is available online at http://www.ovc.gov/publications/factshts/whatyoucando/fs000301.pdf or by contacting the National Criminal Justice Reference Service at 800-851-3420.

     Websites: International Association of Forensic Nurses’ Web site at http://www.iafn.org/resources/default.html.

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

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