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Man's affidavit stating that he was "attacked" by an officer and thrown out of a courthouse building, even if somewhat vague, was sufficient to create a disputed issue of fact as to whether officer used excessive force in removing him from the premises.

     An Indiana man claimed that an officer of the county sheriff's department violently and "without provocation" removed him from the county courthouse where he had gone to appear on a speeding charge. In response to a motion for summary judgment by the defendants in his lawsuit, the plaintiff submitted an affidavit stating that the officer attacked him and threw him out of the building. The officer submitted an affidavit which stated that the plaintiff had been "cursing and screaming" because he had mistakenly believed he had a court date, and that the officer ordered him to leave, escorting him down the staircase to the exit with his hand on the plaintiff's elbow, but used no other force.

     The trial judge accepted the officer's version of what happened on the ground that it didn't "really" differ from the plaintiff's version, and granted summary judgment for the defendants. A federal appeals court reversed, finding that this was incorrect.

    It agreed that if the facts were as the officer stated them to be, his "soft-hand control" of the plaintiff elbow would not amount to the use of excessive force. But the plaintiff's affidavit, stating that the officer "attacked" him clearly connoted the use of excessive force, and " surely the officer would not describe what he did" as "attacking" the plaintiff, the court stated.

     On appeal, the plaintiff elaborated his version of the incident, stating that the officer ran up to him, grabbed him by the nape of his coat, and yelled, "Boy, who the hell do you think you are, I'll take your ass to jail," and then dragged him down the stairs of the courthouse rotunda until he got to the entry door, where he shoved him in the back, pushing him out the door, and telling him not to come back.

     The appeals court found that the plaintiff had submitted evidence, his affidavit, to oppose the motion for summary judgment. While it might have been a bit vague, the trial judge could have asked for more detail, but did not.

What the judge could not properly do was equate vagueness to an absence of evidence, especially when the plaintiff, by indicating what he hoped to prove, made clear that the vagueness of his affidavit was not an acknowledgment that the officer had not used excessive force.

     Under these circumstances, the appeals court ruled, the trial judge acted erroneously in granting summary judgment for the officer.

     Lax v. City of South Bend, No. 05-4200, 449 F.3d 773 (7th Cir. 2006).

    » Click here to read the text of the opinion on the Internet.

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State troopers found liable by jury for $6.725 million for alleged excessive use of force against an occupant of a home being searched for drugs were entitled to a new trial based on prejudicial comments made by the plaintiff's attorney during closing arguments raising issues not before the jury, and the excessive amount of the award.

     The Florida Highway Patrol Tactical Response Team was instructed to secure a residence in which a man lived in order that the Opa-Locka Florida Police Department could execute a search warrant for drugs. The warrant named the owner of the house, but not the resident. While securing the house, three state troopers charged into the resident's bedroom, where he was alone on the bed. The man, who subsequently filed a federal civil rights lawsuit, when he saw "two masked men" dressed entirely in black run in with guns. He was ordered to get off the bed, but did not immediately comply.

     One of the officers then allegedly used his gun to push the plaintiff off the bed, and he landed face down. The officer allegedly put his knee in the plaintiff's back and pulled his right arm behind him until the plaintiff felt his shoulder snap. The plaintiff was allegedly told to shut up when he asked what the officer was doing, and he was then allegedly hit in the back of the head with a hard object. After he was cuffed, the officers ordered him to stand, and when he stated that he could not, he was accused of lying, and carried outside.

     The officers told a different story, with one of them stating that a suspect other than the plaintiff, when he entered the room, grabbed the front of his gun and pulled it forward, and that he fell on top of this man, securing and handcuffing him. He further claimed that he did not touch the plaintiff or say anything to him, and that he does not know what the other two officers said or did while in the room.

     A second officer states that he saw the plaintiff standing near the bed, and yelled at him to get down, and that the plaintiff complied. He stated that he did not recall touching the plaintiff and does not remember who handcuffed him. He says he has "no recollection" of what the other troopers said or did in the room. The third officer states that he entered the room, immediately stepping up onto a mattress, and then noticed two black male suspects on the ground in front of him. He also claims that he never touched the suspects, and that he has no memory of how the plaintiff was handcuffed or what the other troopers said or did while in the room.

     The plaintiff was taken to a hospital, where doctors discovered that a blood vessel had ruptured in his brain, requiring brain surgery and three weeks of hospitalization, and resulting in permanent disability.

     The trial judge granted the defendant troopers qualified immunity on all excessive force claims except those involving the hitting of the plaintiff in the back of his head. The jury in his lawsuit found two troopers liable for excessive use of force in allegedly intentionally hitting the plaintiff in the back of the head, and awarded $6.725 million in damages. The trial court then granted judgment as a matter of law in favor of one of the defendants and granted the other one a new trial.

     A federal appeals court found that the trial court did not abuse its discretion in granting one of the defendants a new trial. In his closing argument, the plaintiff's lawyer ignored the prior grant of qualified immunity on excessive force claims other than the blow to the head, and argued that the case was "not a case about a singular blow to the head," but rather about a general assault, encouraging the jury to find liability and damages on the basis of acts which the trial judge had already found the defendants could not be held liable for. These and other comments made by the plaintiff's lawyer, which included statements intended to raise an issue of "racially motivated police brutality" without evidence of it, made it proper for the trial judge to grant a new trial.

     Additionally the trial court found the damage award excessive, and to have been "swayed by passion."

     While the appeals court reversed the judgment as a matter of law for the one trooper, ruling that a rational jury could have believed the plaintiff's version of the events and found this trooper liable by a preponderance of the evidence, it also concluded that he was entitled to a new trial on the same grounds as the trooper to whom one had been granted.

     Christopher v. State of Florida, No. 04-16319, 449 F.3d 1360 (11th Cir. May 26, 2006)

    » Click here to read the text of the opinion on the Internet.

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Officers and county were not liable for responding to 911 call concerning woman's drunken estranged husband's visit to her sister's house, and failing to prevent him from shooting and killing his wife, shooting his brother-in-law and sister-in-law, and then killing himself. Nothing the officers did created or enhanced the danger.

     A married couple had taken the wife's sister into their rural Michigan home, because she was involved in a domestic dispute with her husband. The sister's husband had appeared at the house the evening before, both drunk and angry. The couple called the police when he came again in the middle of the night. Just as the estranged husband was backing out of the driveway, the police arrived, and he reacted by driving back up the driveway to the house, after which he got out of his vehicle, forced his way into the residence, shot his brother-in-law five times, shot his sister-in-law twice, and shot and killed his wife, after which he committed suicide by shooting himself in the head.

     The married couple survived their wounds, and filed a federal civil rights lawsuit against the county, the officers who initially responded to their 911 call, the county sheriff, and other defendants. They claimed they were denied substantive due process based on the manner in which the confrontation with their assailant was handled. The trial court granted summary judgment to the defendants, finding that the plaintiffs had failed to show that their constitutional rights were violated. A federal appeals court upheld that result.

     The appeals court rejected the argument that officers could be held liable for responding to the 911 call and then allegedly failing to pursue the suspect into the house, instead allegedly waiting and watching. There was no proof, the appeals court noted, that the officers knew or should have known that the person backing down the driveway was the suspect. There was also no evidence that the officers knew that simply pulling into the driveway would cause the suspect to draw a weapon, even if they did know that he was the man in the vehicle. Nor was there any evidence that they would know that he would "rampage" through the home on a shooting spree, as opposed to shooting at the officers, or fleeing on foot.

     In short, the officers did not create or enhance the danger to the plaintiffs.

     The appeals court also rejected the argument that the defendants' subsequent actions in setting up a perimeter around the house increased the danger to the plaintiffs, or prevented emergency medical personnel from rescuing those inside. The court noted that there is no constitutional right to state-provided rescue services, so that there was no constitutional violation in preventing publicly employed medical personnel from entering the home.

     The court also found that because none of the individual defendants violated the couple's constitutional rights, the claims against the county necessarily failed as a matter of law.

     Tanner v. County of Lenawee, No. 05-1107, 2006 U.S. App. Lexis 15566 (6th Cir.).

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Los Angeles police detectives had probable cause to arrest man twice on charges arising out of suspected theft of Oscar statuettes intended to be presented at the Academy awards.

     A California man sued two Los Angeles police detectives and the Los Angeles chief of police, claiming that he was falsely arrested twice on charges concerning the suspected theft of Oscar statuettes intended to be presented at the March 2000 Academy Awards by the Academy of Motion Picture Arts and Sciences. He also claimed that the police chief defamed him by announcing his first arrest at a press conference.

      In March of 2000, the Academy suspected that the Oscar statuettes, which had recently been shipped from the manufacturer in Chicago via Roadway Express Shipping truck, were missing and possibly stolen. Two Los Angeles police detectives were assigned to investigate and their investigation concluded that the Oscars were stolen from Roadway's L.A. facility on March 8, 2000 in the early morning hours. They also developed information indicating that the theft involved at least two men, a truck driver and a forklift operator, both Roadway employees.

     One of the forklift drivers, when interviewed, refused to discuss the Oscar theft, stating that he was not a "snitch." Roadway, after offering a reward, subsequently received anonymous calls suggesting that this forklift driver was involved. The detectives subsequently learned that this forklift driver, and a truck driver that they also suspected, both had prior arrests and convictions for theft.

     When they asked the forklift driver for consent to search inside his home, he refused. They questioned him outside, and told him that he would be taken to headquarters for more questioning. The second suspect, the truck driver, when questioned, confessed, and implicated the forklift driver. Both men were then arrested, and the police chief announced the arrests at a press conference. The forklift driver was fired by Roadway for violating the company's policy against "dishonesty."

     Three days after the forklift driver's arrest, the district attorney concluded that there was insufficient evidence for his prosecution, and he was released.

     The detective's continuing investigation, over the next five months, developed further evidence against the forklift driver, including phone records showing calls between him and the truck driver who had confessed, a time-stamped Roadway security tape showing him on the loading dock near a trailer where the Oscars had last been seen, where he had no business being, and an additional confession by yet another person involved in the theft which also implicated him, and indicated that the stolen Oscars had been stored in his house. As a result, the detectives testified at a grand jury hearing which indicted the forklift driver, resulting in his arrest and subsequent plea of "nolo contendre" (no contest) to a charge of receiving stolen property. He received a sentence of three years probation.

     The arrestee then sued the detectives, the police chief, and others, claiming that both of his arrests were unconstitutional and that the police chief's statements had also violated his constitutional rights.

     A federal appeals court has upheld the rejection of all these claims.

     On the first arrest, the plaintiff argued that he was improperly arrested in his home without a warrant, and that the arrest was without probable cause.

     The appeals court found, however, that the record contained no evidence showing that the arrestee, during his first arrest, was coerced into leaving his house. Instead, the detectives asked him to come outside to speak to them, and there were no "circumstances of extreme coercion" compelling him to do so, so his subsequent arrest did not occur within his home. The appeals court also found, based on the facts presented, that the detectives had substantial evidence against the plaintiff providing them with probable cause to make the first arrest. The fact that some of it, such as anonymous calls, was "hearsay," did not alter this result, and the detectives could rely on the totality of what their investigation revealed in deciding to make the arrest, defeating the plaintiff's first false arrest claim.

     The appeals court found that the police chief's statements at the press conference, which merely announced the plaintiff's arrest, even if found to be defamatory, did not violate any constitutional right. Additionally, they did not cause the plaintiff to lose his job with Roadway; instead, he was fired because his employer believed that he was involved in the theft of the Oscars.

     The appeals court found that the record showed that the detectives had even more evidence against the plaintiff for his second arrest, which was also supported by a grand jury indictment, and by a "variety of confessions" from others involved in the theft who implicated him. Accordingly, the defendants were also entitled to summary judgment on claims relating to the second arrest.

     Hart v. Parks, No. 04-55553, 04-55555, 2006 U.S. App. Lexis 14934 (9th Cir.).

    » Click here to read the text of the opinion on the Internet.

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Sheriff's deputy did not have probable cause to arrest a man for disorderly conduct and obstruction of justice if all he did was yell from a distance while the deputy was carrying out a traffic stop near his home.

     A Florida man claimed that a sheriff's deputy falsely arrested him for obstruction of justice and disorderly conduct, and used excessive force in doing so. His lawsuit also named the county sheriff as a Defendant on the basis of vicarious liability under state law, and for violation of federal civil rights by instituting policies that contributed to or caused his injuries.

     The trial court found that the deputy was entitled to qualified immunity, and made a sufficient showing of probable cause to make the arrest, and that the force used to make the arrest was minimal. It further ruled for the sheriff on the basis of there being no underlying constitutional violation for which he could be held liable. A federal appeals court has reversed the trial court's decision and ordered further proceedings.

     On the evening of the arrest, the man's family was having a "family get-together" at his home. He noticed flashing police lights outside his home, and was concerned that some family members who had not yet arrived might have been in an accident. Going outside to investigate, he walked down his driveway towards the police light. Unknown to him, two deputies were conducting a traffic stop and had stopped a vehicle 250 feet from his front door.

     As the plaintiff approached the deputies, with his hands in the air, he was allegedly told to "get away from here," and he objected that "I live here." Observing that the police car was blocking his driveway, forcing cars to drive onto another part of his property, which ended in an unlit lake. Believing this to be dangerous, he asked the deputy if he could direct traffic to avoid possible accidents involving the lake. The deputy allegedly told him to leave or be arrested.

     The plaintiff turned towards his home, but asked if he could speak with the deputy's superior. One of his guests also asked for the deputy's badge number. The deputy again told the plaintiff, according to his complaint, that if he said anything else, he would be arrested. The plaintiff started toward the house, and the two deputies allegedly grabbed him from behind, twisted his arms behind his back, and handcuffed him. The arrestee states that he tried to tell a deputy that he had an injured shoulder, but the deputy pushed his arm "hard way up," causing greater pain. The arrestee was then handcuffed, and forced to the ground, with the defendant deputy allegedly pushing on his bad shoulder.

     The appeals court found that, if the plaintiff's version of the events was true, the facts could not support a finding of "even arguable probable cause" for either obstruction of justice or disorderly conduct. The court noted that it was "undisputed" that the plaintiff did not physically interfere with or obstruct the deputies, and did not get closer than 75 to 90 feet from the defendant deputy before his arrest. He asserted that he made no physical or verbal threats, did not seek to incite violence, and never told the deputies to get off his property. He also claimed to have approached the deputies with his hands in the air in a respectful manner and that he did not yell, but merely talked.

     The second deputy on the scene, who was not a defendant in the lawsuit, stated in his testimony that he never considered the plaintiff a threat to himself or his fellow deputy, and that no threatening remarks were made. He further asserted that the plaintiff was arrested only because he "yelled." The defendant deputy merely said that the plaintiff was yelling, and that he had to walk away from the traffic stop to see what he wanted.

Neither an owner's simple inquiry as to why officers are present on his property nor a person's attempt to bring a dangerous situation to the officer's attention can be construed as obstruction of justice or disorderly conduct. Nor can a citizen be precluded by the threat of arrest from asking to speak to an officer's superior or from asking for an officer's badge number. Those inquiries likewise do not constitute obstruction of justice or disorderly conduct.

     Under the facts alleged by the arrestee, the court found that there was no probable cause for the arrest under either federal or Florida state law.

     The appeals court also ordered further proceedings on the excessive force claim, finding that a reasonable jury could find that the deputy's actions in making the arrest were excessive force, given that the arrestee was not suspected of having committed a serious crime, did not actively resist arrest, and did not pose an immediate threat to anyone.

     Because the dismissal of other claims, such as those against the sheriff, were based on the trial court's rejection of claims against the deputy, the appeals court also ordered further proceedings on those claims.

     Davis v. Williams, No. 05-13373, 2006 U.S. App. Lexis 13963 (11th Cir.).

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Three homeless women, evicted from homeless shelter by police without legal process at the request of the shelter's director were not "tenants" under Kentucky law, had no property interest in the premises, and, therefore, the officers' actions did not violate their due process rights.

     Louisville, Kentucky police officers removed three homeless women from a transitional homeless shelter in which they were residing, acting at the request of the shelter's director, and without providing the women with legal process of any kind. The shelter's director had earlier asked the women to leave the shelter for various violations of the house rules, but they refused to leave. All residents of the shelter were homeless women.

     The women, at the time of their eviction, protested that they were tenants who paid rent, and the officers allegedly ignored these protests, and rejected their attempts to show the officers documents from their legal aid attorney expressing an opinion as to their tenancy.

     The women filed a federal civil rights lawsuit seeking damages, and arguing that the eviction violated their rights under the Fourth and Fourteenth Amendments. A federal trial court found that the plaintiffs' living arrangements were not governed by a Kentucky state residential landlord and tenant statute, and that the plaintiffs, therefore, did not have a recognized property interest in the premises of the shelter, so that their eviction without legal process did not violate their rights. A federal appeals court upheld this result.

     The state law expressly provides that it does not apply to residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational counseling, religious, or similar service. The court rejected the argument that the shelter was not an "institution" because it is located in a residential building and neighborhood. Despite its location, the court noted, residing at the shelter was incidental to the provision of educational counseling, religious, or similar services, and was designed to prepare homeless women to get back on their feet. The court rejected the plaintiffs' attempt to characterize the shelter as simply "low-income" housing, and their status as tenants.

     The shelter's programs were designed to help homeless women become financially independent members of mainstream society, the appeals court stated, and the plaintiffs resided there only as a result of their participation in the shelter's programs. The environment at the shelter and its location in a residential neighborhood did not diminish the "primary social services character" of the shelter. The shelter did not provide housing to the general public who would not participate in, or benefit from, its primary social service program, the court concluded.

     A strong dissent by one judge on the three-judge panel noted that the plaintiffs each paid $140 per month in exchange for his or her room, which no other resident had the right to enter, and that no supervisory staff resided on the premises, so that the plaintiffs lived there as "independent adults." Further, the dissenting judge pointed to the plaintiffs' argument that they were evicted from the shelter in retaliation for filing a complaint with the Board of Health, and would have held that the plaintiffs were tenants under Kentucky law and their oral agreement with the shelter, entitled to due process before eviction. The dissent also argued that disputes over whether the plaintiffs were tenants, whether their residing at the shelter was incidental to the provision of social services, and other matters should not be decided, as the trial court did, on summary judgment.

     Thomas v. Cohen, No. 05-5072, 2006 U.S. App. Lexis 7938 (6th Cir.).

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Conservation officers had probable cause to seek prosecution of man who allegedly pointed a gun at them after criticizing their job performance, and they were entitled to qualified immunity on his malicious prosecution and First Amendment retaliation claims, given that he was subsequently convicted on some of the charges he was indicted on based on their grand jury testimony.

     A man regularly visited the Helm's Landing area near the Cumberland River in Russell County, Kentucky where his son and daughter-in-law lived and owned property. An officer of the Kentucky Department of Fish and Wildlife Resources saw him walking with a gun in his hand, but was not alarmed, because it was not unusual to see him with a gun in the area. The man approached the officer to complain that conservation officers have not taken any action against people on nearby property who were allegedly shooting guns while consuming alcohol. The officer told him not to ever approach him with a gun in his hand, or he would assume that he intended to harm the officer.

     In a subsequent encounter, the man approached this and another conservation officer with his hands in his pockets, and commented that the officers had not been performing their duties. When asked whether he had his gun in his pocket, he said that he did, and pulled his gun out. One of the officers later testified that the gun was pointed at him for a moment, but the man denied this.

     When one of the officers pulled his gun out in response, the man put his gun back in his pocket, and produced his carry and concealed gun permit. Further angry words followed, and the officers left. The two officers subsequently testified before a grand jury, and the grand jury indicted the man on three counts of first-degree wanton endangerment and one count of interfering with a conservation officer. He was then arrested on these charges. He was subsequently found guilty of three misdemeanor counts of second-degree wanton endangerment and fined $1,500 but acquitted of interfering with the duties of a conservation officer. He did not appeal from his conviction.

     He filed a federal civil rights lawsuit against the two officers for alleged conspiracy, false arrest, malicious prosecution, and violation of First Amendment rights, among other claims. The trial court dismissed all claims except the plaintiff's First Amendment retaliation claim, and his claim for malicious prosecution and false arrest for interfering with the duties of conservation officers. The trial judge also rejected the defendant officer's claim that they were entitled to absolute immunity for their grand jury testimony, and their claim that they were entitled to qualified immunity on the plaintiff's remaining constitutional claims.

     The appeals court found that the plaintiff's false arrest and malicious prosecution claims failed, because he could not show an absence of probable cause. He claimed that the defendants misled the grand jury, which led to his improper arrest and prosecution. But it is long settled law that the finding of an indictment, "fair upon its face," by a properly constituted grand jury, "conclusively determines the existence of probable cause."

     The appeals court also found that, in addition to the "preclusive effect" of the indictment, a review of the evidence showed that the defendants had probable cause to seek the indictment. While the plaintiff was, in fact, acquitted of the charge of interfering with the duties of a conservation officer, he was convicted of the other charges related to wanton endangerment for allegedly pointing a gun at the officers. Given this conviction, he could not pursue claims for false arrest or malicious prosecution unless his conviction was overturned on appeal or otherwise set aside, and he failed to even appeal that conviction. Under these circumstances, the appeals court ruled, it must accept that the plaintiff did point a gun at the officers, and thereby created a danger to them. "Pointing a gun at an officer in a manner that creates a substantial danger of injury clearly establishes probable cause for the charge of threatening or attempting to intimidate an officer," in violation of state law, entitling the officers to qualified immunity on the malicious prosecution claim.

     The appeals court further found that the defendant officers were entitled to qualified immunity on the plaintiff's First Amendment retaliation claim.

     Barnes v. Wright, No. 04-6288, 449 F.3d 709 (6th Cir. 2006).

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Off-duty, non-uniformed jail commander acted under color of law while allegedly beating motorist who rear-ended his pickup truck when he asserted his law enforcement authority by saying he was "a cop" in order to prevent bystanders from interfering with his assault.

     Two motorists were slowly driving their vehicles towards a parade. The second driver, after becoming momentarily distracted, accidentally rear-ended the first driver's pickup truck. The first driver allegedly got out of his truck, went back to the second vehicle, opened the door, and began hitting the driver in the face and neck. The first driver, whose truck was hit, was employed by the Mendocino County, California Sheriff's Department as the jail commander, although he was then off-duty and out of uniform.

     The jail commander, his wife, who was a passenger in his truck, and a probation officer friend driving another vehicle, all allegedly told other people, and the second driver that he was "a cop," and told other people present to "move on," because this was "police business."

     The beaten motorist filed a federal civil rights lawsuit against both the county and the jail commander. The trial court granted a motion for summary judgment by the jail commander on the basis that he had not acted under color of state law, as required for a civil rights claim, and also granted summary judgment for the county since the plaintiff had not presented any evidence of a connection between his injuries and claimed inadequate training or supervision by the county, or an alleged failure to investigate the incident.

     A federal appeals court upheld this result as to the county, but reversed the summary judgment for the jail commander. It found that he acted under color of state law when he asserted his authority as law enforcement to prevent other persons present from interfering with his alleged assault on the plaintiff, even if those actions were in excess of his actual authority.

     The defendant jail commander argued that, as a custodial officer, he had no authority to try and prevent the other driver from leaving the scene of the accident, or to issue commands to the crowd that had gathered at the scene. He claimed that because he was a "custodial officer," rather than a "peace officer" under California law, he could not have been acting under color of state law when he allegedly assaulted the plaintiff motorist.

     The appeals court disagreed. In these circumstances, the defendant jail commander was acting, purporting, or pretending to act in the performance of his official duties, had the purpose and effect of influencing the behavior of others, and was related to his governmental status.

    It was clear, the appeals court found, that the defendant pretended to act in performance of his official duties, and that these actions had the purpose and effect of discouraging bystanders from interfering.

    The requirement that the defendant's conduct must be related either to his governmental status or to the performance of his official duties, the court reasoned, cannot mean that an officer has to be acting within the scope of his authority in order for him to have been acting under color of state law. If that were true, the court noted, no federal civil rights lawsuit could ever be successful, because such a lawsuit is based on the claim that the officer acted illegally--or outside the scope of his authority.

     In this case, it was clear that the defendant jail commander used his "governmental status" to influence the behavior of the crowd of bystanders. The word "cop" used by the defendant is a "generic, non-technical term," the court found. While it can refer to a "peace officer" under California law, it can also include the jail commander's status as a "custodial officer." The court found that if the defendant had been a janitor at the county jail, yet claimed to be a "cop," that would not have been enough to turn his conduct into action under color of state law, because the term "cop" would have inaccurately described his status. But in this case, the defendant was a lieutenant in the Mendocino County Sheriff's Department, and the commander of the county jail. "Cop," the court found, is a "sufficiently capacious term to include that status."

     Anderson v. Warner, No. 04-15505, 2006 U.S. App. Lexis 15996 (9th Cir. June 26, 2006)

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Tow truck driver struck by oncoming vehicle after extracting damaged car from a ditch at the scene of an accident failed to show that California Highway Patrol officers did anything wrong to create or enhance the risk of harm to him. Officers owed him no duty of protection against being struck by traffic. Officer Safety Manual, which was not adopted as a regulation, created no duty to protect.

     A tow truck operator, while performing work at the site of a traffic accident, was hit by a passing motorist who lost control of his vehicle. Severely injured, he brought a personal injury lawsuit in state court against the California Highway Patrol (CHP), arguing that CHP officers there were negligent in failing to properly monitor or regulate traffic in the vicinity of the accident. The trial court, finding that the officers had no duty of care to the plaintiff, granted summary judgment for the CHP.

     An intermediate California appeals court agreed with the trial court. It ruled that the CHP officers did not "create or increase" the risk of harm that led to the plaintiff's injuries, and the circumstances of the accident did not show a "special relationship" between the officers and the plaintiffs which would have created a duty to protect him. The appeals court also rejected the argument that provisions of the CHP Officer Safety Manual established that the officers owed a duty of protection to the plaintiff.

     The appeals court ruled that the manual in question would be "admissible" evidence on the question of breach of duty, if a duty of care existed. It had not, however, been "formally adopted as a regulation," and therefore did not have the "force of law." Its provisions, therefore, did not establish a duty of care on the part of the officers.

     The plaintiff arrived at the scene of the accident on behalf of his employer, and the officers did not give him any directions concerning the extraction of the damaged car from a ditch. Instead, he relied on his own knowledge and experience. After he extracted the car from the ditch, he used his tow truck to drive forward onto the shoulder of the road, and parked the tow truck there. Officers who were present did not tell him to then remain on the scene, and did not tell him where to park. One of the officers left the scene at that point and another officer remained.

     The tow truck driver, after speaking to the driver of the damaged car about insurance and other matters, went to the cab of his tow truck to get his receipt book. He approached the truck on the traffic side. The officer, who was using hand signals to slow down traffic, was evidently ignored by one oncoming truck whose driver was "inattentive." This truck slid out of control when approaching the location of the tow truck, and hit the tow truck driver.

     Under these circumstances, the plaintiff was not in a position of "dependency" on the officers, and they did not say anything to indicate that they would guarantee his safety. At the time that the plaintiff approached his truck on the traffic side of the vehicle, he was fully aware that only one officer remained. And the officers did not compel him to walk on the traffic side of the truck, exposing himself to the risk of being struck by traffic.

     The plaintiff, the court found, failed to establish that the officers did anything wrong which created or enhanced the risk to him.

     Minch v. California Highway Patrol, No. C050338, 2006 Cal. App. Lexis 924.

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Regardless of police officer's subjective motive in attempting a traffic stop of a teenage driver, his decision to make the stop, and to engage in a high-speed pursuit when the driver refused to pull over and sped off, did not shock the conscience. The officer, police chief, and town were not liable for the driver's subsequent death when he lost control of his car during the chase.

     A man died when he lost control of his car while trying to escape from a Haskell, Oklahoma police officer during a high-speed chase at night on country roads. His parents sued both the officer and the police chief, individually and in their official capacities, claiming that the officer's deliberate and "unwarranted" initiation of the chase caused their son's death and violated his Fourth and Fourteenth Amendment rights.

     They also claimed that the town's failure to adequately train and discipline the officer contributed to his "eagerness" to engage in a high-speed pursuit. The trial court ruled that no constitutional violation took place, and granted summary judgment to all defendants. A federal appeals court has upheld that result.

     On appeal, the parents challenged only the trial court's conclusion that they failed to raise a material issue of fact as to whether the actions of the officer, and, in turn, the police chief and town, violated their son's substantive due process rights under the Fourteenth Amendment.

     The appeals court found that the ultimate standard for determining whether there has been a violation of substantive due process is whether the challenged government action "shocks the conscience," which may, in some circumstances, be demonstrated by deliberate indifference to a serious risk of harm.

     In this case, the parents argued that the officer had a tendency to "harass" teenage motorists, such as following them with his headlights off, and engaging them in high speed chases, and an alleged prior statement by the officer that he was going to "get" their son and one of his friends "one way or the other." They also presented evidence by a friend of their son stating that he had not been driving recklessly at the time of the attempted traffic stop.

     They argued that this was sufficient to allow a jury to infer that the attempted traffic stop was intentionally designed to result in a high speed chase, and that the officer intended to harm their son, and that their son's later legal violations, such as driving at speeds close to 100 miles per hour, could not legitimate the pursuit because he was exercising a right to resist an unlawful arrest. The officer's actions, therefore, were argued to "shock the conscience."

     The appeals court found that even if the officer was deliberately indifferent to the motorist's Fourteenth Amendment rights in attempting a traffic stop, his actions in making the stop were not "conscience shocking." Disagreeing with the parents' analysis, the court found that a "culpable mental state," by itself, was not sufficient to show a violation of due process. In this case, the conduct allegedly resulting from the officer's purported "culpable state of mind" at the beginning of the encounter was merely to pull up behind the motorist and turn on his overhead lights. The motorist knew that the officer was acting as a police officer, and there was no evidence to suggest that the traffic stop placed him in fear for his physical well-being.

     The motorist alone made the decision to flee, either to avoid an encounter with the officer and a possible traffic ticket, or to "instigate a round of high-speed cat and mouse." While the officer might have "anticipated, even relished," the teenager's "irrational response" to his presence, he did nothing to compel it, the court found, and he could not be held accountable for the decedent's failure to exercise "reasonable self-restraint."

     As for the officer's decision to initiate a chase once the motorist began to flee, he testified that the motorist drove off without headlights at a "high rate of speed," which showed a violation of traffic laws and an attempt to elude a police officer. This provided a justification for the pursuit and grounds for an arrest, and there was no evidence that the officer intended to cause harm to the motorist unrelated to the arrest.

     The appeals court rejected the plaintiffs' argument that their son was exercising a common law right to resist an unlawful arrest. The court noted that a "routine traffic stop" is not the equivalent of an arrest, even if it is a "seizure" within the meaning of the Fourth Amendment, but rather is closer to an investigative detention than a custodial arrest. The plaintiffs, the court noted, were unable to point to any case law approving "high speed resistance" to an attempted traffic stop.

     The appeals court further reasoned that, even if Oklahoma courts would extend the common law right to resist an unlawful arrest to a traffic stop, the motorist's actions went beyond the boundaries of "lawful resistance." The motorist's actions after the officer signaled him to pull over were "excessive and unnecessary," and there was not any indication that, before he sped off, that the motorist was going to be arrested. The officer's decision to pursue the fleeing car did not show a "conscience-shocking" motive such as the intent to inflict physical harm.

     Because the appeals court found that nothing the officer did was unconstitutional, the claims against the police chief and town for allegedly causing a constitutional violation necessarily also failed.

     Graves v. Thomas, No. 05-7084, 2006 U.S. App. Lexis 15174 (10th Cir.).

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Assault and Battery: Physical

     Handcuffing, shackling, and pushing of an alien during his arrest and forcible deportation by immigration and customs agents did not amount to excessive use of force, when it was used to get him to enter an airplane when he resisted. Adegbuji v. Fifteen Immigration and Customs Enforcement Agents, No. 05-1506, 169 Fed. Appx. 733 (3rd Cir. 2006).

Defenses: Absolute Immunity

     Police officers were entitled to absolute immunity on an arrestee's claim that they offered perjured testimony at his trial. Additionally, the arrestee, who was convicted of third-degree resisting arrest, could not pursue his claims that his arrest and imprisonment were unlawful when his conviction had not been overturned on appeal or otherwise set aside. Blacknall v. Citarella, No. 05-3694, 168 Fed. Appx. 489 (3rd Cir. 2006).

Defenses: Statute of Limitations

     Oregon intermediate appeals court overturns $81,260 jury award against city in lawsuit arising from alleged sexual abuse, by a police officer, of a teenager involved in a police Explorer youth program. The court found that the lawsuit was time-barred under a two-year statute of limitations and that the plaintiff's claim accrued at the time the abuse allegedly occurred, not later when he testified before a grand jury proceeding concerning the incidents years later. Court rejects the plaintiff's theory that it was not until the grand jury proceeding that he had enough information to know that the city may have caused his injuries by ignoring reports of the officer's alleged abusive tendencies. T.R. v. Boy Scouts of America, No. 0206-5750, 133 P.3d 353 (Ore. App. 2006).

Domestic Violence

     Enforcement by a city and county of a court "no-contact" order, entered against a man in a criminal proceeding for domestic assault, even though it prevented him from returning to his home, where he lived with the woman he was accused of assaulting, was not a "taking" of private property entitling him to compensation. The actions taken were carried out in enforcing a facially valid court order, and the defendants' employees could not make their own determination of the merits or enforceability of that order. Borlaug v. City of Cedar Falls, No. 05-6847, 710 N.W.2d 541 (Iowa App. 2006).

Emotional Distress

     City was not entitled to summary judgment on a mother's claim that statements made by a police officer to her son's fellow high school students caused him emotional distress severe enough to trigger his suicide. Officer allegedly either falsely or with reckless disregard of the truth told the students that her son was one of the persons making two anonymous 911 calls which was the basis for a police raid on a teenage drinking party at a home and charges against those there for being minors in possession of alcohol. Court finds that there were disputed issues of fact both on what specifically the officer said, and whether the officer's statements were privileged. Clifford v. City of Clatskanie, No. 12002, A124955, 131 P.3d 783 (Or. App. 2006).

False Arrest/Imprisonment: No Warrant

     Arrestee's plea of "no contest" to a charge that he resisted arrest conclusive established that there was probable cause for the arrest, barring him from pursuing a false arrest claim. Behm v. Campbell, No. 5D05-2200, 925 So. 2d 1070 (Fla. App. 5th Dist. 2006).

     Police officers had probable cause to arrest a public school teacher, after they received reports about him allegedly allowing students to smoke marijuana in his class and him engaging in "inappropriate" behavior with female students. The fact that he was later acquitted of criminal charges did not alter the result, as there was no evidence that investigators fabricated the reports or inaccurately recorded the information received. Jerrytone v. Musto, No. 04-4145, 167 Fed. Appx. 295 (3rd Cir. 2006).

     Warrantless entry into a suspect's house was supported by exigent circumstances when the suspect shoved one officer and attempted to shut the door on him, and the suspect was creating a disturbance giving rise to a belief that he posed a danger to officers and others. Davis v. Township of Paulsboro, No. 02-CV-3659, 421 F. Supp. 2d 835 (D.N.J. 2006).

Federal Tort Claims Act

     In a lawsuit brought against the U.S. government and an agent of the Federal Emergency Management Agency (FEMA) for false arrest and malicious prosecution of a man for allegedly falsely obtaining government funds for disaster relief assistance after the September 11, 2001 terrorist attacks on the World Trade Center, the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(g) provides that a lawsuit against the U.S. government is the exclusive remedy, barring New York state law claims against the agent. Applying New York law to the claims against the U.S. government, the plaintiff could not prevail on his false arrest claim when his arrest was carried out under a valid arrest warrant, and could not recover on his malicious prosecution claim when he failed to show that the prosecution against him was started with "actual malice." Lewis v. U.S., No. 03 Civ. 10220, 388 F. Supp. 2d 190 (S.D.N.Y. 2005).

Firearms Related: Intentional Use

     Officers were not liable for the shooting death of an 18-year-old involved in a family dispute who allegedly ignored their demands that he drop a knife and instead continued to move up some stairs toward the officers. Trial court rejects inadequate training and supervision claims. While the city had knowledge that the officer who shot the youth had been involved in at least eight other shootings, resulting in five other deaths, none of the shootings were ever ruled improper, and a number of years had passed since the officer last discharged his firearm in the course of his duties. Estate of Smith v. Silvas, No. 04CV00200, 414 F. Supp. 2d 1015 (D. Colo. 2006).

First Amendment

     State troopers had probable cause to arrest anti-war protestors for open "lewdness" for stripping down to their thong underwear and forming a human pyramid during a campaign visit to their town by President Bush prior to the 2004 election. Further, even if the Pennsylvania open lewdness statute was unconstitutional under these circumstances, the troopers did not violate any clearly established constitutional right, because there was no prior case law establishing a right to demonstrate in thong underwear. The trial court further found that the lewdness law was not aimed at expression in violation of the First Amendment, as it prohibited all public lewdness and indecent conduct, whether or not carried out for purposes of expression. Egolf v. Witmer, No. Civ.A. 04-5695, 421 F. Supp. 2d 858 (E.D. Pa. 2006).

Freedom of Information

     The fact that a private university's police were "special state police officers" or deputy sheriffs, with certain powers granted by Massachusetts state law did not make documents concerning their responses to complaints public records subject to disclosure upon request to a student newspaper. The university was a private entity which was not subject to the disclosure law simply because of the limited powers granted by the state to its police officers. Harvard Crimson Inc. v. President and Fellows of Harvard College, 840 N.E.2d 518 (Mass. 2006).

Governmental Liability: Policy/Custom

     A Florida police officer allegedly hit an undercover Hispanic police detective with his car, believing that the detective was one of the two robbery suspects being pursued. The detective claimed that the officer intentionally aimed the car at him and hit him because he believed he was one of the robbers and that he was African-American, doing so for racial reasons. The officer claimed that the incident was an accident and that he lost control of his car. Federal appeals court vacated summary judgment for the defendant county, finding that there was sufficient evidence of a custom of excessive force based on the failure to investigate and discipline. The officer who struck the detective with his car was allegedly involved in "numerous" auto collision, and was known to use racially derogatory terms, and there was evidence that the county disciplined only 16 officers for excessive force over a ten year period, with most discipline being minor. Perez v. Miami-Dade County, No. 05-10261, 168 Fed. Appx. 328 (11th Cir. 2006).

Malicious Prosecution

     Man's actions in taking photographs in front of the home of a person who had obtained a protective order against him provided officer with arguable probable cause to initiate a criminal prosecution against him for harassment in the second degree, entitling the officer to qualified immunity in a resulting malicious prosecution lawsuit. The arrestee's actions could have been viewed by a reasonable officer as constituting a threat of further violence. Jaegly v. Couch, No. 05-2191, 168 Fed. Appx. 480 (2nd Cir. 2006).

Negligence: Vehicle Related

     Police officer whose vehicle collided with a motorcycle while responding to an emergency call was not liable for the motorcycle rider's injuries in the absence of evidence that he acted recklessly. In this case, the officer activated his lights and sirens prior to the accident, and slowed down as he approached the red light, which did not constitute reckless conduct. Daniels v. City of New York, 813 N.Y.S.2d 164 (A.D. 2nd Dept. 2006).

Police Plaintiff: Defamation

     In a defamation lawsuit brought by police for statements made by a township supervisor during the meetings of a township's board of supervisors, the supervisor was entitled to absolute immunity from liability under Pennsylvania state law. Heller v. Fulare, No. 05-3687, 2006 U.S. App. Lexis 16843 (3d Cir.).

Police Plaintiff: Vehicle Related

     A police officer injured by a driver's collision with her vehicle during a high-speed chase could pursue a claim for underinsured motorist benefits against her auto insurer. There were factual issues as to whether her recovery for injuries were barred by the "fireman's rule" under Iowa law, since an exception to that rule provides that the officer is not barred from recovery if the person responsible for the police presence engages in intentional conduct which harms the officer once the officer is present. If the collision was an accident negligently caused, there could be no recovery under the "fireman's rule," but the officer would be entitled to recovery if the driver intentionally crashed into her vehicle, so further proceedings were required. Cornwell v. State Farm Mutual Automobile Insurance Company, No. 4:03-CV-40650, 396 F. Supp. 2d 1020 (S.D. Iowa 2005).

Property

     Police officers, in allegedly assisting the title holder of a boat in repossessing it from a contract purchaser, were not sufficiently involved in the incident to make the repossession governmental action supporting a claim for deprivation of property without due process of law. Additionally, even if they were found to have been sufficiently involved to make the repossession governmental action, it was not clearly established that their actions would violate the plaintiff's rights, entitling them to qualified immunity. Moore v. Carpenter, No. 04-3144, 404 F.3d 1043 (8th Cir. 2005).

Public Protection: Crime Victims

     County was not liable for the rape and murder of a girl by a convicted sex offender on the basis of the alleged failure to warn the victim's parents of his presence in the community. The girl was not a "foreseeable" victim of the offender, and the county had no special relationship with the girl or her parents imposing a duty to warn them. Osborn v. Mason County, No. 76101-9, 134 P.3d 197 (Wash. 2006).

Public Protection: Informants

     Police officers' alleged failure to protect a confidential informant against an assault by a drug dealer during a sting operation did not violate his due process rights. Their conduct did not "shock the conscience," and they were entitled to qualified immunity on his claims, as no prior case law clearly established a duty to protect him from private violence. Matican v. City of New York, No. 02-CV-5805, 424 F. Supp. 2d 497 (E.D.N.Y. 2006).

Public Protection: 911 Phone Systems

     County was not liable for assault on condominium owner, his 8-month-old son, and his neighbor by a disturbed man who broke into the home with a painted face while wearing what appeared to be a straight jacket and claimed to be on a mission from God. While the 911 operator who responded to the homeowner's call told him that she had notified police about his call about the man attempting to break in, she did not make any assurances that he would be protected, or any statements that he relied on in staying in his home. Harvey v. County of Snohomish, No. 76575-8, 245 P.3d 216 (Wash. 2006).

     In a lawsuit by a stroke victim and his wife against the City of New York for failing to provide timely assistance in response to a 911 call, the requirement for municipal liability of showing "direct contact" between agents of the city and the injured person is satisfied by a call made by the wife, rather than the victim, as a caller with a close relationship to the person in need. Factual issues as to whether the plaintiffs justifiably relied on the city's "affirmative undertaking" to provide assistance barred summary judgment for the city. Laratro v. City of New York, 808 N.Y.S.2d 145 (A.D. 1st Dept. 2005).

Racial Discrimination

     African-American man who was convicted of assault and rape, but later cleared of involvement in those crimes failed to show that officers' investigation of him was based on racial animus. He was stopped and questioned based on his similarity to the description of the black male alleged to have engaged in the crimes. Alexander v. City of South Bend, No. 0-2535, 433 F.3d 550 (7th Cir. 2006).

Search and Seizure: Home/Business

     Property owner's claims that officers searched his property without warrants, failed to notify him before the search, and unlawfully seized items of his property appeared to be baseless, when the officers provided evidence of the search warrants issued, the basis for obtaining the warrants, and that they both gave him notice of the search before they conducted it, and gave him copies of the search warrants afterwards. The plaintiff, by contrast, presented nothing in opposition but his own unsworn and unnotarized statement repeating his claims, entitling the defendants to summary judgment. Holt v. Blakley, No. 05-13245, 167 Fed. Appx. 86 (11th Cir. 2006).

     A warrantless search of a home belonging to a probationer after he allegedly violated a condition of his probation was not a violation of the Fourth Amendment. The probationer had agreed to make himself available for such searches while on probation, and this made the search of his home reasonable. Carroll v. Barnack, No. 05-2412, 166 Fed. Appx. 866 (7th Cir. 2006).

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     Article: The "Special Needs" Exception to the Warrant Requirement, by Martin J. King, 75 FBI Law Enforcement Bulletin No. 6, pgs. 21-32. (June 2006). "The 'special needs' exception applies to searches and seizures conducted without individualized suspicion for the purpose of minimizing a risk of harm." [PDF] [HTML]

     Racial Profiling: Illinois Racial Profiling Study - 2005 Results. Illinois Gov. Rod R. Blagojevich on July 3, 2006 released the results of the Illinois Racial Profiling Study for 2005, the second annual survey of racial profiling in traffic stops. He also signed legislation (Senate Bill 2368) extending the study until July 1, 2010, expanding the areas of data collection and creating the Racial Profiling Prevention and Data Oversight Board, an advisory body charged with developing strategies to eliminate racial profiling in Illinois. The previous 2004 results are also available on the Internet.

     Statistics: Citizen Complaints about Police Use of Force. Presents data on citizen complaints about police use of force received by large, general purpose State and local law enforcement agencies as well as on complaint dispositions. Findings presented are from new questions on formal citizen complaints about police use of force added to the Law Enforcement Management and Administrative Statistics survey. Detail is presented on the policies and procedures of large municipal police departments relating to the processing of citizen complaints and other administrative features. The report also discusses the limitations of complaints' data and the use of sustained complaints as a measure of police use of excessive force. Highlights include the following: During 2002 large State and local law enforcement agencies, representing 5% of agencies and 59% of officers, received a total of 26,556 citizen complaints about police use of force. About a third of all force complaints in 2002 were not sustained (34%). Twenty-five percent were unfounded, 23% resulted in officers being exonerated, and 8% were sustained. Using sustained force complaints as an indicator of excessive force results in an estimate of about 2,000 incidents of police use of excessive force among large agencies in 2002. 06/06 NCJ 210296 Press release | Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: Characteristics of Drivers Stopped by Police, 2002. Presents data on the nature and characteristics of traffic stops, as collected in the 2002 Police Public Contact Survey, a supplement to the National Crime Victimization Survey. Detailed demographic information is presented on the 16.8 million drivers stopped by police in 2002. The report provides statistics about various outcomes of traffic stops, including searches conducted by police, tickets issued to drivers stopped for speeding, arrests of stopped drivers, and police use of force during a traffic stop. The report also discusses the relevance of the survey findings to the issue of racial profiling and provides comparative analysis with prior survey findings. Highlights include the following: In 2002 an estimated 8.7% of drivers age 16 or older were stopped by police, representing nearly 17 million of the 193 million drivers in the United States. Among traffic stops of young male drivers in 2002, 11% were physically searched or had their vehicle searched by police. Among these young male drivers who were stopped, blacks (22%) and Hispanics (17%) were searched at higher rates than whites (8%). White drivers were more likely than both black and Hispanic drivers to be stopped by police for speeding. Subsequent to being stopped for speeding, blacks (78%) and Hispanics (85%) were more likely than whites (70%) to receive a ticket. 6/06 NCJ 211471 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

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

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