CONTENTS

Excessive force, unreasonable search, and invasion of privacy claims were properly dismissed as time-barred under Texas two-year statute of limitations, but false arrest and malicious prosecution claims would not accrue until criminal prosecution against arrestee terminated in his favor. These claims, therefore, were not time-barred, and might be able to be re-filed after the prosecution of the plaintiff concluded.

     On October 31, 2001, a man in San Antonio, Texas was involved in an argument with an uninvited visitor to his apartment. A neighbor called police, and two officers responded. The man claimed that immediately after the officers arrived, they began to beat him with their batons, spray him with pepper spray, and kick him in the chest. He sued, asserting that he had not provoked the officers, and posed no threat to them, and that after a neighbor called for an ambulance, the officers bound his legs and arms with duct tape. He was charged with a felony of attempting to take a weapon from an officer, a charge later reduced to the misdemeanor offense of "interfering with public duties," which was still pending when he filed his lawsuit on November 3, 2003 against the officers and the city for excessive use of force, invasion of privacy, unreasonable search, false arrest, and malicious prosecution.

     The defendants sought dismissal of these claims as time-barred by the statute of limitations. A federal magistrate found that the statute did not expire until November 1, 2003, and that, since that was a Saturday, the lawsuit, filed on Monday, November 3, 2003, was timely. The magistrate also recommended that the malicious prosecution claim be dismissed without prejudice, as the criminal proceedings against the plaintiff had not yet been concluded. The trial judge, however, rejecting the magistrate's recommendations, found that the statute of limitations had expired on October 31, 2003, having accrued two years earlier from that date, and that the plaintiff's claims were therefore time-barred.

     A federal appeals court rejected the plaintiff's argument that the trial court miscalculated the statute of limitations period and should have accepted the magistrate's recommendation that it expired, at the earliest, on November 3, 2003, the first business day following the same calendar day two years after the incident.

     Under federal law, the limitations period for a federal civil rights lawsuit is determined by the general statute of limitations governing personal injuries in the state. There was no dispute that in Texas, this meant that claims must be brought no later than two years after the day the cause of action accrues. The appeals court ruled that the Texas Supreme Court would hold that the statute of limitations requires a claim to be brought no later than the same calendar day two years following the accrual of the claim, which would be Friday, October 31, 2003, so that the plaintiff's invasion of privacy, unreasonable search, and excessive force claims were all time barred, since they were filed more than two years later.

     The false arrest and malicious prosecution claims, however, could not be pursued under these circumstances, the court found, until the criminal prosecution against the plaintiff had concluded and been terminated in his favor. Accordingly, their dismissal with prejudice as time-barred was erroneous. The statute of limitations did not begin to run until such termination, and these claims should have been dismissed without prejudice, allowing the plaintiff to bring them later if appropriate.

     Price v. City of San Antonio, No. 04-51213, 2005 U.S. App. Lexis 26539 (5th Cir.).

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Investigator was entitled to qualified immunity on claims that he obtained arrest warrants for elementary school teacher which were not based on probable cause. Warrant was supported by probable cause based on statements by student that the teacher attacked and choked her, together with documented evidence of injuries.

     A teacher at an elementary school for emotionally-challenged children claimed that a youth crimes investigator in the county sheriff's department procured and executed two arrest warrants to take him into custody without probable cause. A federal appeals court has ruled that the trial court in the teacher's federal civil rights lawsuit should have granted summary judgment to the investigator on the basis of qualified immunity.

     The first warrant was obtained after one of the teacher's students, a nine-year-old girl, claimed that the teacher had grabbed her neck and choked her. On the day of the alleged incident, the girl's mother contacted the sheriff's department, and an agent met the girl and her mother at the hospital, interviewing them, preparing an incident report, and observing visible injuries, specifically, fresh finger marks around the girl's neck, and photographed these marks. Two days later, the youth crimes investigator interviewed the girl and her mother and found their statements to be consistent with their earlier report. He met with a prosecutor, who told him that there was probable cause to seek an arrest warrant for assault and battery, but who also allegedly recommended that the investigator interview the teacher. According to the teacher, no such interview ever occurred, and the investigator refused to meet with the school's attorney.

     Three weeks after the incident, the investigator prepared an arrest warrant affidavit against the teacher, and a magistrate reviewed the affidavit and heard live statements from the girl's mother, and then issued the warrant. The investigator arrested the teacher, but a grand jury subsequently refused to indict him.

     The second warrant was obtained after another of the teacher's students stated that the teacher had assaulted him six months before the alleged assault of the girl. The same investigator at first decided not to pursue a warrant, but he later reopened the investigation and obtained a second arrest warrant. The affidavit for this was signed not by the investigator, but by the alleged victim's mother. The investigator then arrested the teacher again, but a magistrate dismissed the case at a preliminary hearing.

     A federal appeals court found that the first warrant was clearly supported by probable cause, even interpreting the facts in the light more favorable to the plaintiff teacher. The warrant was based primarily on the victim's identification of her attacker. The victim made that identification on two separate occasions to two separate officers, and her claims were supported by documented evidence of physical injury and the fact that another of the teacher's students had made similar allegations. This was sufficient to support a reasonable man in believing that the teacher had committed or was committing a crime.

     The appeals court found that the trial judge was in error in ruling that no reasonable officer investigating the case would have found probable cause to exist at that point in the investigation. The trial judge believed that the officer's investigation was inadequate because he did not visit the crime scene, interview anyone other than the girl and her mother, failed to attend a scheduled meeting with the school district's attorney, and failed to return phone calls from the school principal and the school district attorney.

    The fact that the investigator did not conduct a more thorough investigation before seeking the arrest warrant, the appeals court held, did not negate the probable cause established by the victim's identification. There was no evidence that the investigator was even aware of, much less that he ignored, any exculpatory evidence. The appeals court further found that, even if it were to conclude that this warrant was not supported by probable cause, the investigator would still be entitled to qualified immunity because any absence of probable cause under these circumstances would not have been evident to an objectively reasonable officer. Both a prosecutor and a neutral and detached magistrate independently reviewed the evidence known to the investigator and concluded that there was probable cause, and a reasonable officer would not second-guess those determinations unless probable cause was "plainly lacking," which it was not.

     The appeals court also found that the complaint filed by the plaintiff did not even mention the second arrest, or the issuance of the second warrant, merely stating that the investigator subsequently filed similar charges against him which were also dismissed. Since the complaint did not even mention the second arrest or second warrant, much less allege facts showing that they were not based on probable cause, it did not put anyone on notice that the plaintiff was asserting that the investigator violated his Fourth Amendment rights by procuring and executing the second arrest warrant. Accordingly, the investigator was entitled to qualified immunity on any such claims also.

     McKinney v. Richland County Sheriff's Dep't, No. 05-6423, 2005 U.S. App. Lexis 27091 (4th Cir. December 12, 2005)

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No reasonable juror, federal appeals court rules, could find that a police officer violated a schizophrenic suspect's rights by shooting and killing him seconds after he stabbed another officer with a butcher knife.

     The parents of a man suffering from schizophrenia sued a police officer and the city which employed him after their son was shot and killed by the officer after he attacked and stabbed another officer with a butcher knife seconds before being shot. A federal trial court ruled that the officer was entitled to qualified immunity and dismissed claims against the city for allegedly failing to appropriately train its officers. A federal appeals court upheld this result on appeal, finding that "no rational juror" could find that the shooting officer violated the decedent's constitutional rights.

     Officers arrived at the family home after the schizophrenic man grabbed a knife while at home with his mother. The man barricaded himself in the kitchen with a waist-level cart after his mother called the police. Attempts to talk to the man by the officers lasted about 45 minutes. The suspect then moved the cart aside and lunged at one of the officers who attempted to back out of the way. He stabbed that officer in the upper left side with the butcher knife, and the officer then stumbled back and fell to the ground.

     The shooting officer saw the man lunge at the officer with the knife, but did not see the knife go into his fellow officer. A third officer tried to restrain the suspect on the couch and the two men wrestled for control of the knife. Believing that the suspect was continuing his attack, the shooting officer drew his weapon and fatally shot him once in the upper left chest area. The decedent's mother claimed that he did not then have possession of the knife at the precise moment that he was shot. Another officer agreed that he had just finished twisting the knife out of the suspect's hand when the shot was fired. The knife attack and the fatal shot allegedly took place over just a few seconds.

     The appeals court found that the shooting officer lawfully seized the suspect with gunfire under the totality of the circumstances because he posed an immediate threat to others in the area and was actively resisting attempts to restrain him. No reasonable juror, the court found, could disagree with this, and assuming that the suspect lost control of the butcher knife just before being shot, the amount of time between the loss of such control and shooting could not have been more than a few seconds and could have been as little as a split-second. Under these circumstances, the court would not "pass judgment" on the officer's action using "20/20 hindsight." The officer could have been acting on the perception that the suspect still had the knife, and was actively resisting, and was therefore entitled to qualified immunity.

     Untalan v. City of Lorain, No. 04-4489, 430 F.3d 312 (6th Cir. 2005).

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Man exonerated, by DNA evidence, of attempted rape after serving five years of a 70 year sentence failed to show that his constitutional rights were violated, or his wrongful conviction and imprisonment caused, by improperly conducted photo arrays or lineup, destruction of evidence, racial discrimination, or claimed city policies of inadequate training and supervising of officers.

     A South Bend, Indiana man was wrongfully convicted of attempted rape and several other charges. He was sentenced to 70 years in prison, but released after five years when newly discovered DNA evidence exonerated him. After his release, he sued the city, the police chief, the police department and a number of officers, claiming that his constitutional rights were violated by the defendants conducting a "flawed" criminal investigation which led to his wrongful conviction and incarceration. He claimed that the officers conducted faulty photo arrays and a suggestive lineup, destroyed evidence, and conspired to arrest him on the basis of race as an African-American. He also claimed that the city failed to adequately train and supervise its police officers.

     A federal appeals court has upheld summary judgment for the defendants on all claims.

     The plaintiff had been stopped by police while riding his bicycle through a neighborhood where a number of sexual assaults had recently occurred. He allegedly met the general description of the suspect, and the officers photographed him and his bicycle after he refused to surrender a blood sample, and let him go. The officers later stopped at least two other black males in the neighborhood, one of whom was also riding a bicycle. Three victims of the attacks failed to identify the plaintiff as their attacker from looking at either his photo or a photo array. Two other witnesses, however, identified him in photo arrays, although with differing levels of certainty, as did the fiance of one of the victims, who was a witness to the attack on her.

     The plaintiff was then arrested and made to participate in a lineup with five other men, several of whom did not match certain aspects of the descriptions given by witnesses. While all those in the lineup were black males, their heights, builds, and hairstyles were "somewhat different" and two of them wore different-colored shirts from the rest. Nine victims and witnesses viewed the lineup and several apparently identified the plaintiff.

     He was charged with numerous crimes against multiple victims, including one count of rape, and two counts of attempted rape. Before trial, the rape charge was dropped because the plaintiff was excluded by DNA evidence from the victim's rape kit. While the test results excluding the arrestee were kept on file, the rape kit itself was allegedly destroyed. The plaintiff's first trial resulted in a hung jury and a second jury acquitted him of some charges, but convicted him of attempted rape and other offenses associated with the attacks on two of the victims. The attacks in the area did not end with the plaintiff's arrest and conviction, and officers continued to investigate the crimes. Eventually, new DNA evidence surfaced showing that the plaintiff had not committed the attacks for which he was convicted.

     The appeals court found that the trial judge was correct in finding that the plaintiff failed to identify any evidence of any constitutional violation in the city's alleged "sloppy identification techniques" during the photo arrays and lineup.

The Constitution does not require that police lineups, photo arrays, and witness interviews meet a particular standard of quality. It does, however, guarantee the right to a fair trial--in this context, via the due process clause of the Fourteenth Amendment--and that right is violated if unduly suggestive identification techniques are allowed to taint the trial.

     The plaintiff failed to show how any alleged problems with the photo arrays and lineup tainted his trial.

What identification evidence was actually admitted at trial? What did the victims, eyewitnesses, and police officers say? Were they cross-examined? Were the circumstances surrounding the identification and the police procedures put before the jury? What exhibits were admitted on this issue? Was any objection or motion to suppress the identification evidence made? What other evidence tended to link the defendant to the crime? Each of these factors--the list is illustrative, not exhaustive--have a bearing on whether a fair trial was had.

     The appeals court also noted that the plaintiff did not move to suppress or otherwise object to the introduction of the identification evidence at trial on the grounds of unconstitutional suggestiveness. Without the trial record, the appeals court stated, it could not determine whether such a motion, had it been made, would or should have been granted. The city argued that the victims and eyewitnesses were extensively cross-examined at the trial. While the plaintiff's case was a "sympathetic" one, the court commented, "we cannot connect the dots for him. That he must do on his own."

     As for the destruction of the rape kit, the appeals court noted that this was evidence relevant only to a rape charge which was dismissed against him, so it was also not clear here how this "destruction of evidence" violated the plaintiff's rights or caused him any harm.

     The plaintiff's conspiracy charge, that the defendants arrested him because he is black, also was found to lack any evidentiary support. He failed to show that the defendants were motivated by a racial animus. It is true, the court noted, that the officers stopped and investigated the plaintiff because he is black, but this was not proof of racial animus, it reasoned, but instead merely a reflection of the fact that the description of the attacker was that of a black male.

     Finally, the plaintiff failed to show that the city had a policy or custom of inadequately training and supervising its offices which led to improper identification procedures, destruction of evidence, and racial conspiracies, since the plaintiff had not created a triable issue on whether any constitutional violation occurred to begin with, or whether such a violation was caused by the purported policies.

     The shortcomings in the investigation, the court concluded, were not indicative of a custom or policy, but rather merely showed "one flawed investigation."

     Alexander v. City of S. Bend, No. 042535, 2006 U.S. App. Lexis 2 (7th Cir.).

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Police officer could not collect damages from property owner for injuries she suffered when she was struck by a falling scaffolding around its theater building after being called to the scene because of the falling scaffolding. The fire fighters' rule barred such liability under Illinois law. The company which leased the scaffolding to the property owner, however, was not entitled to such immunity when it failed to show it was actively engaged in any work on the property.

     A City of Chicago police sergeant responded to a call that a scaffolding was falling around a theater, damaging cars parked nearby. Part of the scaffolding fell on the sergeant when she arrived there. She sued the owner of the property and the company from which the owner leased the scaffolding, seeking recovery for her injuries.

     In the state trial court, the defendants sought and were granted summary judgment on the basis of the "fire fighter's rule," sometimes called the "inherent risk principle) barring a public official such as a fire fighter or police officer from recovering for their injuries which occur while performing their duties.

     An intermediate Illinois appeals court agreed in part and reversed in part. It ruled that when a police officer responds to a call about a scaffold falling, a landowner is not liable for negligence resulting in the officer suffering injuries caused by the scaffolding falling on the officer. However, the court continued, since the company leasing the scaffolding to the property owner presented no evidence that it performed any activity on the landowner's premises, the record did not support application of the fire fighter's rule to its possible liability, and it was not entitled to summary judgment.

     The court found that the plaintiff was performing her official duties when she suffered the injury. The court rejected the plaintiff's argument that the fire fighter's rule did not apply because she was never "on" the property owner's premises, but merely injured by the scaffolding which surrounded it. It found that a negligently constructed scaffolding did not present an "unreasonable risk" to a police officer responding to a call about falling scaffolding, so that the landowner did not create such an "unreasonable risk," taking the case outside of the fire fighter's rule.

    The appeals court found, however, that there was no evidence in the record that the company which rented the owner the scaffolding was involved in any activity on the owner's premises itself. While it stated in its appeals brief that it had erected the scaffolding on the property, it did not show anything in the record to substantiate that claim or any evidence that it ever performed any act for the property owner on the premises.

     Under the fire fighter's rule, the property owner was barred from liability to the officer for injuries she suffered from the falling scaffold, the very reason she was called to the property to perform her duty. The scaffold lessor could, if it undertook any action on the premises on behalf of the property owner, share the property owner's immunity from an negligence lawsuit for those activities, but it failed to provide evidence that it performed any such activity, and therefore was not entitled to summary judgment in its favor.

     Jackson v. Urban Investment Property Services, 2005 Ill. App. Lexis 1154 (Ill. App. 1st Dist. 2005).

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Excessive force lawsuit against city and police officers was properly dismissed on the basis of the continued failure of the plaintiffs' attorney to respond to discovery requests, have his clients appear for depositions, provide medical records or other documents explaining their purported injuries, or appear at conferences at the courthouse concerning the status of the case.

     Four plaintiffs sued the City of Chicago and several of its police officers asserting claims for excessive use of force. The trial court in the federal civil rights lawsuit set a date for a scheduling conference in the case, and ordered the parties to exchange all material documents in advance of the conference.

    The plaintiff's attorney failed to appear at the conference and did not provide any documents as ordered. Without those documents, the defendant city had no information about the damages the plaintiffs were claiming. The trial judge, as a result, issued an order requiring the plaintiffs to disclose their medical records or other information concerning their purported damages, and scheduled another status conference, warning that the failure of the plaintiffs' lawyer to appear at that meeting would result in the dismissal of the lawsuit for want of prosecution.

     While the attorney did appear for the status conference, he only offered an explanation for his absence at the previous meeting that he had "just gotten back in town" at the time, and that he apologized. He gave the city, as information on damages, some pictures of bruises allegedly inflicted by the officers but no medical records, even though some of the plaintiffs were allegedly hospitalized after the underlying incident. The status conference was continued until two days before the discovery cutoff date.

     Over the next several months, the plaintiffs' attorney and his clients missed several deposition dates without explanation, and the city's written discovery requests allegedly went unanswered, as did the city's questions as to why the attorney and his clients were not responding or otherwise participating in discovery. As the end of the discovery period approached, the plaintiffs had disclosed nothing but the photos previously produced. The plaintiffs' attorney did not provide any explanation or seek any extensions of time. In summary, a federal appeals court found, he simply "ignored the case for months on end."

     When the next status conference date arrived, he again failed to appear, sending a paralegal in his absence. A lawyer for the defense described the inactivity of the plaintiffs' lawyer during discovery to the judge. The trial judge refused to hear a response from the paralegal, characterizing that as the unauthorized practice of law, and then dismissed the case for want of prosecution because of the "complete and consistent failure of plaintiff to cooperate in discovery." The plaintiffs' attorney sought to vacate that dismissal, and his motion was denied. A federal appeals court has now upheld that denial.

     The appeals court rejected the excuses asserted by the plaintiffs' attorney for failure to respond to discovery requests or appear for noticed depositions. It noted that criminal charges had been dismissed against one plaintiff, and a second plaintiff was not subject to any criminal charges to begin with. Additionally, the trial court had granted a continuation of the depositions of the other two plaintiffs, against whom criminal charges remained pending, but the plaintiffs' attorney failed to request a second continuation or the extension of the discovery period.

     Further, the pending criminal cases did not justify any failure to respond to other forms of discovery, such as interrogatories and requests for documents, or the failure to show up at conferences. And the plaintiffs with pending criminal charges did not appear for their deposition on the date it was continued to, nor did their attorney communicate with anyone about this.

     The plaintiffs' attorney also attempted to justify his "inaction" concerning discovery by the fact that his sister and father died in January and February of 2004 respectively, but the appeals court found that this did not explain his inattention to the case before January of 2004. Additionally, even after the deaths, the plaintiffs' attorney failed to contact the court or his opposing counsel to seek an accommodation or additional time to respond.

     The appeals court also rejected the argument that the attorney's status as a sole practitioner or his "busy schedule" excused his inaction or failures to appear.

     The appeals court concluded that there was more than enough basis here to dismiss the case for want of prosecution, and that the trial court did not abuse its discretion in finding a lack of excusable neglect.

     Harrington v. City of Chicago, No. 04-4326, 2006 U.S. App. Lexis 3 (7th Cir.).

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Police officers and supervisors' alleged encouragement and "active facilitation" of off-duty officer's drunken driving during twelve-hour drinking binge could constitute a "state-created danger" violating the due process constitutional rights of a pregnant woman, her fetus, and two others struck and killed by the off-duty officer as he sped through a red light. Individual defendants were, however, entitled to qualified immunity from liability, as the law on the issue was not clearly established in 2001.

     An off-duty New York City police officer, while allegedly heavily intoxicated, drove his vehicle through several red lights, striking three people, one of whom was pregnant, and killing them all. Their estates or surviving families brought a variety of claims in federal court against the off-duty officer and other persons who allegedly implicitly encouraged and sanctioned the off-duty officer's abuse of alcohol and driving under its influence. The plaintiffs claimed that law enforcement officials' approval of the off-duty officer's conduct created a danger to the decedents for which they should be held liable under 42 U.S.C. Sec. 1983.

     The federal trial court denied motions by the defendants to dismiss these complaints. A number of the defendants appealed, arguing that they were entitled to qualified immunity on claims that their actions amounted to a "state-created-danger" to the decedents, in violation of their constitutional rights.

      A federal appeals court agreed with the trial court that the plaintiffs alleged facts which, if true, might be a violation of the decedents' "substantive due process" rights under the due process clause of the Fourteenth Amendment to be free from state created dangers. Despite this, however, the appeals court found that the interpretation of the due process clause was not "clearly established" at the time of the defendants' actions in 2001, they could not be held individually liable under the principles of qualified immunity.

     When the off-duty officer first applied for police employment in 1984, he disclosed his history of drinking problems to the city, according to the court, interpreting the available evidence in the light most favorable to the plaintiffs. While he allegedly continued to drink heavily during his time as a member of the police force, the plaintiffs claimed that he was never questioned, disciplined, or counseled about his alcohol use, and it was a common practice for both off-duty and on-duty officers to drink at or near the police precinct house. This drinking was allegedly done, at least in part, in public and with the full knowledge of the officer's superiors.

     On the date of the accident, August 4, 2001, the officer ended his shift at 8 a.m., and he then embarked on a 12-hour drinking binge, according to the plaintiffs. The binge began in the company of fellow officers and supervisory police sergeants in the parking lot of the police station. Around noon, his supervisor, who had been drinking with the rest of the group in the precinct lot, allegedly asked the off-duty officer to drive him to a local "strip club," called "The Wild, Wild West. The bar had allegedly been declared off-limits to police officers by department officials, a designation that the officers ignored that day as they apparently had in the past. The off-duty officer drove the supervisor to the bar, where they were allegedly joined by other officers.

     Four or five hours later, eight hours into the off-duty officer's drinking for the day, his supervisor allegedly asked him to drive him back to the precinct house. The off-duty officer entered the premises to use the toilet, and, although he was allegedly visibly intoxicated, neither the desk sergeant, the patrol sergeant, or any of the on-duty officers present did anything to reprimand him or prevent him from leaving, returning to the driver's seat of his vehicle, or driving away drunk. He then allegedly drove back to the strip club, where he continued drinking. Two or three hours later, after more drinking, he started to return to the precinct for his next shift. It was at this point, having been drinking continuously for nearly twelve hours, and having not slept in more than 24 hours, that he sped through multiple red lights, and without sounding his horn or braking, struck and killed an eight-and-a-half months pregnant woman, her son, and her sister as they attempted to cross a street at a crosswalk in compliance with the walk signal. The baby she was pregnant with also died shortly after his birth by cesarean section at a hospital after the accident.

     After the accident, the plaintiffs claimed, other police officers and the Patrolmen's Benevolent Association (PBA) hindered the investigation. No sobriety tests were administered to the off-duty officer at the crime scene, and officers allegedly talked about which sobriety test the off-duty officer would be able to "beat," as well as delaying testing for several hours. The police department's Accident Investigation Squad also allegedly mishandled evidence by delivering the officer's blood samples to a non-authorized lab instead of to the medical examiner's office, by failing to develop photos taken at the scene of the accident, by losing or destroying inculpatory evidence, and by "intimidating and pressuring" civilian witnesses to change their version of the events, as well as in suppressing the results of the officer's "alco-sensor" test. These allegations concerning the post-accident events, however, were not the subject of the appeal.

     The off-duty officer, who resigned from the police force, was later convicted of driving while intoxicated, driving with a suspended license, and four counts of second-degree manslaughter for recklessly causing the four deaths.

     The federal appeals court found that the claimed conduct of "actively facilitating" the off-duty officer's continual drinking and his intoxicated driving stated a possible claim for violation of due process. Merely failing to "intercede" on the day of the accident or the alleged actions of supervisors in standing by and doing nothing to punish the off-duty officer's previous misconduct, the appeals court found, was insufficient to amount to a "state-created danger."

     Encouraging and communicating to the officer that he was free to drink to excess and drive in that condition, including encouragement and facilitation of supervisory personnel, however, could amount to facilitating the off-duty officer's conduct and amount to such a "state-created danger" resulting in the decedents' deaths.

     The defendants emphasized that the officers who drank with the off-duty officer were themselves "off-duty" at the time. The appeals court stated that "the fact that an officer is off-duty does not prevent him or her from giving assurances about what he or she or other police officers will or will not do when acting as police officers."

The relationship between the on- and off-duty policy officer defendants with off-duty police officer Grey surely provided them with the opportunity to communicate their encouragement and approval of his behavior. While it may be more difficult for the plaintiffs to prove that the off-duty officers communicated official sanction of Grey's conduct, it does not negate, as a matter of law, the possibility of such a communication.

We conclude that when, as the plaintiffs allege, state officials communicate to a private person that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct [...]. This is so even though none of the defendants are alleged to have communicated the approval explicitly.

     In this case, the appeals court noted that the defendants, on the facts alleged, had ample opportunities, before and during the day in question, to decide what to do and say in response to the alleged practice of drinking and driving by off-duty officers. The alleged pre-accident behavior of a number of the individual defendants over an extended period of time, and in the face of the "obvious risk of severe consequences and extreme danger" from such drunken driving could be found to be "conscience shocking, in a constitutional sense," and the individuals could be found to have acted with deliberate indifference to a known risk of such harm.

     While the "state-created-danger" basis for liability was found to apply to "implicit prior assurances by police officers of impunity for drunken driving," the appeals court found that this principle was not clearly established at the time of the incident, entitling individual defendants to qualified immunity from liability for pre-accident conduct claimed to violate due process.

     Pena v. Deprisco, No. 03-7876, 2005 U.S. App. Lexis 26911 (2d Cir.).

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Purported police harassment of witness who claimed to have witnessed two police officers murdering a woman was an insufficient basis for a civil RICO claim. The plaintiff's alleged loss of employment income because of false arrest and malicious prosecution, and his expenses for attorneys' fees to defend himself were not an injury to "business or property" as required for standing to bring a RICO lawsuit. Federal appeals court also upholds dismissal of plaintiff's First Amendment civil rights claim and state law claims as untimely.

     A woman died one evening after a fight with two Chicago police officers who were allegedly attempting to restrain her while taking her into custody. A man who lived next door to the vacant lot where the incident occurred claimed to have witnessed the entire event. In a television news interview taped the next day, he announced his version of the events, and in doing so, publicly accused the two officers of murdering the women. In the months that followed, he claimed that he was "systematically" harassed, intimidated, and retaliated against by a number of Chicago police officers who acted in a concerted effort to get him to change his story as to the circumstances surrounding the woman's death.

     He filed a lawsuit in federal court against the city and a number of the officers. Among his claims was one that the named officers violated the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. The trial court granted the defendants' motion for summary judgment on the basis that the plaintiff's RICO claim failed as a matter of law because he lacked standing to bring it. Other claims, such as federal civil rights claims under 42 U.S.C. Sec. 1983 for alleged violation of his First Amendment right to free speech, and state law claims for malicious prosecution and intentional infliction of emotional distress, were found to be barred by the applicable statutes of limitations. A federal appeals court upheld this result.

     The alleged actions by the defendant officers included arresting the plaintiff three times for possession of controlled substances without probable cause, threatening him, using excessive force against him, forcing him to strip naked in front of a female detainee at a police station, and continually confronting him on the street and at his home in an effort to "harass and intimidate him." The alleged harassment purportedly began in early April of 1997, and continued until late December of 1997. The harassment was claimed to have been aimed at keeping him quiet and discouraging him from testifying either before the police departments office of professional standards' investigation, or in court, concerning the incident he witnessed. The officers claimed, to the contrary, that the plaintiff was a "known drug dealer," and that they were just doing their job by checking up on him and stopping him, whenever necessary, to determine whether he was in possession of, or dealing, illegal drugs. On one of the drug arrests, he was found guilty, and on a second, he pled guilty to one of the charges, and he was sentenced to four years.

     After the trial court granted summary judgment for the defendants on the plaintiff's RICO claim, and dismissed his First Amendment and state law claims as untimely, the plaintiff appealed.

     The plaintiff argued that the loss of income and attorneys' fees that he incurred were the direct result of the defendants' alleged RICO violations, providing him with standing to pursue his RICO claim. He also argued that his First Amendment civil rights claims and his state law claims were not time barred because he was a victim of "continuing" misconduct which did not cease until the year 2000, when his lawsuit was filed.

     The civil RICO law, 18 U.S.C. Sec. 1964(c), the appeals court explained, provides that any person "injured in his business or property" by a pattern of racketeering activity can recover triple the damages he suffers, along with costs and attorneys' fees. The phrase "injured in business or property" has been interpreted as a standing requirement, needed to pursue the case, rather than an element of the cause of action which must be proven to prevail on the claim.

     The appeals court disagreed that being the target of allegedly wrongful prosecution, resulting in unjustifiable imprisonment could be the basis of such damage in the plaintiff's "business or property" by being falsely imprisoned, even though he pled guilty to and was convicted of some of the charges, because he lost potential income during the period of his incarceration. It also rejected the argument that the fact that he was forced to incur attorneys' fees to defend himself in the criminal prosecutions constituted an injury to his "business or property."

     The loss of income as a result of the inability to pursue employment opportunities while allegedly falsely imprisoned, the court reasoned, was essentially economic damages based on personal injuries. His claim of the inability to obtain employment income was "nothing more than an indirect or secondary effect" of the personal injuries that he allegedly suffered from the officers' actions. Additionally, the plaintiff failed to claim that he was engaged in a lawful business enterprise or activity that was interfered with by the city or the officers who allegedly harassed him, or that he was discharged from his employment as a result of a refusal to participate in a racketeering scheme. He only claimed that he was effectively prevented from "seeking temporary day labor work."

     "Personal injuries such as these," the court stated, "are most decidedly not the type of injury that the RICO laws were designed to address."

     Similarly, the need to pay attorneys' fees for defense in a criminal prosecution due to alleged malicious prosecution or false imprisonment, the court ruled, did not provide a plaintiff with standing under the civil RICO statute. Additionally, even if it did, the court stated, the plaintiff had failed to show that his payment of attorneys' fees was proximately caused by the alleged racketeering activity. The problem, the court found, is that the plaintiff was convicted on two of the charges stemming from his arrests, while two charges, one stemming from alleged violation of parole and another drug possession charge, were abandoned. The defense attorneys who represented him, the court noted, testified that they would have charged him the same amount regardless of the number of charges pending against him at that time.

     In conclusion, the court found, summary judgment was properly entered on the RICO claim.

     The appeals court, applying Illinois law, also upheld the trial court's ruling that the First Amendment civil rights claim and state law claims were barred by the statute of limitations. The cause of action on these claims, the court found, accrued when the injuries occurred, and nothing in either federal law or Illinois law extended or delayed the running of the statute of limitations until the criminal proceedings against a plaintiff are concluded. The court noted that it was undisputed that the last confirmed interaction between the plaintiff and the police occurred in December of 1997, and, by the time his lawsuit was filed, the applicable statutes of limitations had expired. An affidavit he submitted that in March of 2000, after he was released from prison, two "unidentified" persons told a friend of his that police officers would be "coming around looking for him," was a "quite obvious attempt" by the plaintiff to manipulate the doctrine of "continuing violations," and was "woefully insufficient." Additionally, his "self-serving affidavit" was insufficient to create an issue of material fact.

     Evans v. City of Chicago, No. 03-3844, 2006 U.S. App. Lexis 264 (7th Cir.).

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

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While a search of a business, under a search warrant, to search for documents concerning ownership of computers, which were not evidence of crime, violated the rights of the business owners, officers who obtained and executed the warrant were entitled to qualified immunity from liability. They consulted with a prosecutor who told them to go ahead and reviewed the affidavit and warrant, and a judge issued the warrant. Under these circumstances, their actions were reasonable, even if mistaken.

     Southgate, Michigan police officers executed a search warrant on the premises of a business allegedly known as a center of narcotics activity, to inventory and seize assets in connection with a forfeiture action pending against the owner of the business. During the search, a friend of the owner entered the store and asserted his ownership of the computers in the building. While he claimed to have ownership documents, he only presented the officers with his business card, and they seized the computers. The officers then sought a warrant to search this man's business, called Computer Time, located in Melvindale, Michigan, for documents that would substantiate his ownership claim.

     A prosecutor the officers consulted before seeking this second warrant advised them that she thought doing so was legally feasible, and she reviewed the affidavit and warrant one of the officers drafted, finding it unobjectionable. The warrant was then issued by a judge. The resulting searched failed to turn up any documents, and the man had lied about owning the computers. The officers' search of his business, however, did turn up marijuana, and the officers, while not seizing those drugs themselves, did inform the local Melvindale police about this discovery. Melvindale police then obtained their own search warrant, seized a large quantity of contraband, and then began forfeiture proceedings themselves against the second business. That forfeiture action was later dismissed by a state court judge on the basis that both searches of the business were unconstitutional.

     The owners of the second business then filed suit, asserting claims for unreasonable search and seizure.

     A federal appeals court found that because the object of the officers' search of the second business -- the purported computer ownership papers -- lacked any evident link to criminal activity, the search was unconstitutional and the officers violated the plaintiffs' Fourth Amendment rights by conducting it.

     Despite this violation of the plaintiffs' constitutional rights, the appeals court ruled, the officers were entitled to qualified immunity. The court noted that the defendants consulted with a prosecutor because they were uncertain as to whether a warrant to search the second business premises was constitutional. The prosecutor not only advised them that a warrant would be constitutionally permissible, but also approved a draft of the affidavit and warrant. Subsequently, a judge issued the warrant, and the officers' search did not exceed the scope of the warrant.

    Under these circumstances, while the defendant officers were wrong in believing that probable cause supported the warrant, their mistake was "not so unreasonable as to deny them qualified immunity." In short, their actions were "reasonable, even if mistaken, and they exercised reasonable professional judgment in applying for the warrant, since reasonable officers in their position might have believed that the warrant should be issued.

     Armstrong v. City of Melvindale, No. 04-2192, 2006 U.S. App. Lexis 251 (6th Cir.).

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

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Officers' observation of obscured vehicle registration sticker on license plate gave them probable cause to stop truck for investigation, even if their real motivation was to investigate a 9-1-1 call concerning the driver of a truck allegedly taking photos of a little girl walking in the area. No reasonable jury could have found that they lacked probable cause for the stop or that the motorist's subsequent consent to the search of his truck and home was coerced.

     An Illinois man claimed that two Bolingbrook, Illinois police officers violated his Fourth Amendment rights by stopping his truck without probable cause and searching it and his home under the authority of a written "consent to search" he asserted that he was coerced into signing. The officers, on the other hand, argued that the plaintiff voluntarily consented to the searches and that an obscured vehicle registration sticker on his license plate gave them probable cause for the stop. After three days of a jury trial, a federal magistrate ruled that the defendant officers were entitled to judgment as a matter of law, finding that the evidence presented left "no doubt" about the validity of the plaintiff's consent to the searches, and that there was unquestionable probable cause for the stop of the vehicle.

     A federal appeals court has upheld this result.

     The stop occurred while the officers were investigating an anonymous 9-1-1 call about a man in a black truck taking pictures of a little girl walking on a sidewalk with her father. The caller had told the police dispatcher of another incident in the same area involving a person taking pictures of girls after school. One of the officers spotted the plaintiff's truck. While it wasn't a perfect match, being dark green rather than black, it was close enough so that the officer decided to follow it. While following the vehicle, the officers saw that the registration sticker, which in Illinois displays the month of issuance on the license plate, was obscured, in violation of state law, and they decided to pull the truck over to investigate.

     When the motorist asked about the reason for the stop, one of the officers told him about the 9-1-1 call, and he was troubled by the suggestion that he might be some sort of pedophile. He was also concerned because he had been, in fact, taking pictures that day, although not pictures of children. His pictures were taken in an attempt to document an alleged problem with Bolingbrook's snowplowing which had left piles of snow blocking the sidewalk. Because the motorist uses a wheelchair, the snow piles allegedly made it difficult for him to get around.

     The motorist's camera was plainly visible in the truck's cab, and when one of the officers saw it, he became more convinced that he had found the truck he was looking for. The motorist was not able to produce his proof of insurance, and his driver's license was from Indiana, rather than Illinois. The motorist stated that he had moved to Illinois six months ago and had not yet obtained an Illinois license, despite state law requiring that he do so within 90 days.

     Other items seen in the cab of the truck, which included rope, duct tape, and towels covering the upholstery, also heightened the officer's suspicion. He became concerned that he might have a kidnapper or crime involving children on his hands and asked for permission to search the vehicle. In response to the motorist's question as to what would happen if he refused, the officer told him that because he had no valid driver's license or proof of insurance, his truck would be impounded and he would be taken to jail. The motorist then consented to the search. The search turned up additional, "perhaps suspicious," items, according to the court, including a ticket stub from a children's zoo, court documents from South Dakota, and an unusual item of clothing--women's thong underwear, behind the driver's seat.

    The officers then felt that a further investigation was called for, and they asked the motorist for permission to search his house, presenting him with a standard "consent to search" form which the motorist signed. The three of them went to the home, where nothing of concern was found. The motorist was then given three vehicle code violation citations--for lacking a valid driver's license, operating an uninsured vehicle, and displaying an obscured registration certificate.

     The parties all agreed that the anonymous tip was an insufficient basis for the stop, since it was uncorroborated, and didn't describe anything illegal ("Taking drive-by photos of children may be suspicious, but by itself it isn't against the law"). Additionally, the officers did not learn of the invalid driver's license and lack of insurance until after the stop.

     The appeals court agreed with the magistrate, however, that the obscured vehicle registration certificate provided probable cause to pull the motorist over for a violation of the vehicle code. The fact that the officers may have actually been motivated by their desire to investigate the anonymous 9-1-1 call did not alter this result.

     The appeals court also rejected the argument that the motorist's consent to the search of his vehicle and home were coerced. The motorist argued that the nature of the accusation under investigation of possible pedophile-like behavior presented him with the choice of cooperating or risking an "unbearable stigma." The appeals court noted, however, rejecting this argument, that if "grave accusations were inherently coercive," then a valid consent would be impossible to obtain in connection with any serious crime.

     The motorist further argued that the officer's statement that if he did not consent to the searches, his truck would be impounded and he would be taken into custody also coerced his consent. The appeals court noted, however, that this was not a "baseless threat" since the Illinois vehicle code directs that a driver lacking both license and insurance "shall have his or her motor vehicle immediately impounded by the arresting law enforcement officer." Despite this mandatory sounding language, the appeals court reasoned, the officer had the ability to exercise discretion on whether to impound the vehicle, and whether mandatory or discretionary, the officers were plainly authorized to impound the truck.

     Given what the officers were faced with--a report of suspicious photo-taking, a driver with an out of state license carrying rope, duct tape, towels, and ladies' underwear in his truck, it was reasonable for them to use the tools available to investigate further. One way would have been to impound the vehicle and perform the search when the truck was in custody, and another way was to obtain consent. The motorist was given a reasonable choice, and the appeals court stated that it could not conclude that the offer was "coercive."

     The appeals court also found that it could be argued that the information available to the officers could have justified a brief investigatory stop based on reasonable suspicion anyway.

Given that we live in a time of increasing crimes against children--what with "Amber Alerts" and all--the limited intrusion of a brief traffic stop under circumstances like those present in this case cannot be easily labeled as unlawful.

     The appeals panel agreed with the trial court that no reasonable jury could find that the officers lacked probable cause to make the stop or that the motorist's consent to the searches of his truck and home were legally coerced.

     Davis v. Novy, No. 04-4096 2006 U.S. App. Lexis 265 (7th Cir.).

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

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Assault and Battery: Chemical

     Officers were not entitled to qualified immunity on arrestee's claim that they used excessive force by using pepper spray against him and hitting him repeatedly with a baton while he was seated in his truck after a traffic stop. Arrestee claimed that he had not resisted the officers or tried to flee, and that he was "passive" and cooperative. Reed v. City of Lavonia, No. 3:03-CV-111, 390 F. Supp. 2d. 1347 (M.D. Ga. 2005).

Assault and Battery: Physical

     Police officers were not entitled to summary judgment on claim that they used excessive force against individuals seeking to file a complaint at a police station, but there was no evidence on which to base the plaintiffs' claims against the police superintendent and a police sergeant for supervisory liability. Vega v. Vivoni, No. CIV.02-1754, 389 F. Supp. 2d 160 (D. Puerto Rico 2005).

     Texas state troopers were entitled to qualified immunity for using force against vehicle passenger during traffic stop which resulted in her suffering a broken arm when there was reasonable suspicion to investigate whether she was guilty of public intoxication, and her "aggressive demeanor" and the possibility that she had a weapon justified a pat-down search and handcuffing. Her "further resistance" to the search and handcuffing provided the authorization for the amount of force used. Padilla v. Mason, No. 08-03-00123-CV, 169 S.W.3d 493 (Tex. App.--El Paso 2005).

Attorneys' Fees: For Defendants

     Sheriff and sheriff's department were entitled to an award of attorneys' fees under 42 U.S.C. Sec. 1988 when an arrestee's lawsuit for harassment, malicious prosecution, abuse of process, and intentional infliction of emotional distress in connection with the issuance of an arrest warrant was voluntarily dismissed. The court found that the lawsuit brought had been frivolous when the arrest never took place, the sheriff's department, named as a defendant, was not a legal entity which could be sued, and there was no showing that there was any alleged violation of constitutional rights related to official county policies or practices. Evans v. Monroe County Sheriff's Department, No. 05-10077, 148 Fed. Appx. 902 (11th Cir. 2005).

Defamation

     Police department's alleged retention of "fictitious" criminal information about a woman could not be the basis for a federal civil rights lawsuit. Even if this claim were true, the filing of false information at most states a claim for libel or defamation, a state law claim, not a violation of constitutional rights. Mensah v. Darby Borough Police Department, No. 05-2193, 145 Fed. Appx. 742 (3rd Cir. 2005).

Defenses: Collateral Estoppel

     Police officers who put a homeowner under arrest for violating a town's noise ordinance during a party at his residence had probable cause for the arrest, and the homeowner was subsequently convicted of violating the ordinance. His conviction barred him from relitigating the issue of whether he violated the ordinance. Raphael v. County of Nassau, No. CV03-1675, 387 F. Supp. 2d 127 (E.D.N.Y. 2005).

     The fact that a state judge denied an arrestee's pre-trial motion to quash certain evidence as illegally obtained in his criminal prosecution did not bar him, in a subsequent federal civil rights lawsuit, from claiming that the officers did not have probable cause to arrest him. The ruling on the pre-trial motion was not a final judgment on the merits, and the arrestee was later acquitted on the basis of testimony not presented at the pretrial hearing. Additionally, the arrestee's acquittal on the criminal charges prevented him, in state court, from appealing the judge's ruling on the pre-trial motion. Toro v. Gainer, No. 04C4484, 370 F. Supp. 2d 736 (N.D. Ill. 2005).

Defenses: Qualified Immunity

     Commander of a local law enforcement drug unit was entitled to qualified immunity from excessive force claims asserted by an arrestee when there was no evidence showing that he personally participated in any alleged unlawful conduct or created any rule or custom that led to such conduct. Jones v. Pandey, No. 1:04-CV-99, 390 F. Supp. 2d 1371 (M.D. Ga. 2005).

     Police officer had qualified immunity from liability in false arrest lawsuit brought by restaurant employee charged with being an accomplice in the armed robbery of the restaurant. While the employee claimed that he merely accompanied the robbers into the restaurant after encountering them in the parking lot, an objectively reasonable officer could believe, under the circumstances, that the employee was acting in concert with the robbers. Sheppard v. Aloisi, No. CIV.A.03-10240, 384 F. Supp. 2d 478 (D. Mass. 2005).

Emotional Distress

     Family members of murder victim could not recover damages for emotional distress allegedly suffered due to police investigators failure to pursue or to inform the department of inculpatory evidence found during the investigation. Even if these claims were true, they were insufficient to "shock the conscience" and violate the family member's due process rights. Cusick v. City of New Haven, No. 03-7890, 145 Fed. Appx. 701 (2nd Cir. 2005).

False Arrest/Imprisonment: No Warrant

     Arrestee's lawsuit claiming false arrest on charges of possession of drugs and assault on a police officer was barred by the principles set forth in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) when his conviction on those charges have not been overturned and his appeal of those convictions were still pending. Heck, however, did not bar the arrestee's claims against officers for alleged excessive use of force against him, since success on those claims did not necessarily imply the invalidity of his convictions. Powell v. Scanlon, No. Civ. 300CV01085, 390 F. Supp. 2d 172 (D. Conn. 2005).

     Officers had probable cause to arrest a woman for making harassing phone calls based on a complaint from her former employer identifying her as the maker of the calls, but there were no exigent circumstances justifying a warrantless arrest in her home, since the officers were responding to a three week old misdemeanor complaint, and the officers did not show why they did not obtain a warrant. Officers were not entitled to qualified immunity against the arrestee's claim that they violated her rights by making the warrantless arrest. Breitbard v. Mitchell, No. 02-CV-1257, 390 F. Supp. 2d 227 (E.D.N.Y. 2005).

     A complainant's affidavit claiming that another man had committed a battery against him, standing alone, could be an inadequate basis for an arrest when the affidavit was a "fill in the blank" battery affidavit and the arresting officer allegedly had knowledge of a long existing feud between the two persons, and failed to take any further statements from the complainant or interview any witnesses before making the arrest. Row v. Holt, No. 15A01-0409-CV-405, 834 N.E.2d 1074 (Ind. App. 2005).

     Mere fact that two officers' names appeared on the paperwork concerning a suspect's arrest was insufficient to render them liable for the alleged violation of the arrestee's rights when they both denied being involved in the arrest, or a subsequent strip search and interrogation, and the arrestee himself did not identify them as being personally involved in the incident. Vital v. New York, No. 04-2289, 136 Fed. Appx. 393 (2nd Cir. 2005).

False Arrest/Imprisonment: Wrongful Detention

     Detainment of an arrestee for 10.5 hours during his processing for release on posted bail was not unconstitutionally unreasonable. Sizer v. County of Hennepin, No. Civ. 03-5830, 393 F. Supp. 2d 796 (D. Minn. 2005).

     Officer's shooting and killing of drug crime suspect in his home during execution of search warrant was justified when the officer was confronted by a weapon upon his entry. No evidence supported a claim that the officer shot the suspect after he was incapacitated or when he was helpless. Sterling v. Weaver, No. 04-35346, 146 Fed. Appx. 136 (9th Cir. 2005).

     City of New York and its police officers were entitled to immunity from liability under state law for the death of a man from gunfire that occurred while he was attempting to make an illegal sale of guns to undercover officers, as there was no evidence that anything the officers did was inconsistent with acceptable police practices. The officers were exercising their discretionary professional judgment at the time of the shooting. Arias v. City of New York, 802 N.Y.S.2d 209 (A.D. 2nd Dept. 2005).

First Amendment

     A woman arrested by an officer during a protest demonstration supporting a black radical convicted of murdering a police officer failed to show that her arrest was motivated by his hostility to the political views of the demonstrators, as required to support a claim for violation of the First Amendment. Instead, the evidence showed that he had probable cause to arrest her for stepping in front of him in order to prevent the arrest of another demonstrator, then fleeing, who had thrown a flaming object at him. The woman's actions caused the officer to collide with her, and both to fall to the ground, preventing him from apprehending the fleeing suspect. Mims v. City of Eugene, No. 04-35042, 145 Fed. Appx. 194 (9th Cir. 2005).

     Disputed issue as to whether man's characterization of other participants in town meeting as "assholes" and his invitation to "make" him sit down were fighting words not entitled to First Amendment protection barred summary judgment on his claim that police officers violated his rights when they forced him to leave the meeting. Nolan v. Krajcik, No. CIV.A.02-12228, 384 F. Supp. 2d 447 (D. Mass. 2005).

Freedom of Information

     Information concerning whether or not the plaintiff was listed in a Terrorist Screening Database (TSDB) maintained by the FBI was protected from disclosure under a privilege for law enforcement investigatory files. FBI's alleged surveillance of an Israeli native in the U.S. did not violate his First Amendment rights. FBI agents were also not liable for alleged harassment by his neighbors, who were under the mistaken belief that he was Iranian, and when there was no evidence that any FBI agent was aware of the plaintiff's particular political beliefs. Raz v. Mueller, No. CIV 02-5184, 389 F. Supp. 2d 1057 (W.D. Ark. 2005).

Malicious Prosecution

     A man arrested for intoxication while burning trash on his business property could not pursue his malicious prosecution claim under Pennsylvania law when he failed to show that the prosecution terminated in a manner favorable to him. He was given a citation for a summary offense upon being released from custody, and his wife allegedly sent in the required payment for the citation without his approval or knowledge. Despite his dispute as to whether she had authority to do so, the fact remained that the proceeding was terminated in favor of the municipality. Walker v. North Wales Borough, No. Civ. A. 05-CV-0425, 395 F. Supp. 2d 219 (E.D. Pa. 2005).

Negligence: Vehicle Related

     Police officer did not act with reckless disregard for safety of child he struck while traveling approximately 30 miles above the speed limit. At the time of the accident, the officer was responding to a call to provide back up to another officer, and had activated his vehicle's lights and sirens. Additionally, he slowed when he observed children on the sidewalk, and braked and swerved in an attempt to avoid hitting the child, who had run into the street in order to avoid a dog. Kettles v. City of Rochester, 802 N.Y.S.2d 572 (A.D. 4th Dept. 2005).

Procedural: Discovery

     Information concerning the frequency and location of random searches of N.Y. subway riders' backpacks and containers were protected against discovery by a law enforcement privilege in a lawsuit challenging the city's program to carry out such searches. Macwade v. Kelly, No. 05 CIV.6921, 230 F.R.D. 379 (S.D.N.Y. 2005).

Search and Seizure: Home/Business

     While officers who made a warrantless entry into a suspect's home may have been justified, if, as they contended, she committed a misdemeanor in their presence, and they were in "fresh pursuit" of her, they failed to state an adequate justification for their second warrantless entry, which was subsequent to the arrest, so that the home residents were entitled to a trial on the merits on their claim that the second warrantless entry violated their rights and constituted a trespass. Bittner v. Huth, No. 2395, 876 A.2d 157 (Md. App. 2005).

Search and Seizure: Vehicle

     Police officer's videotaping of a traffic stop, and of a subsequent search of the motorist's home, did not violate any clearly established right of the motorist, who was stopped for speeding. The officer was also entitled to qualified immunity for asking the driver whether he would be willing to submit to a search of his person, vehicle and home, which revealed marijuana in his pocket. While the drugs were suppressed during a criminal prosecution against the motorist on the basis that the consent given was not voluntary, the federal appeals court ruled that a reasonable officer, under the circumstances, could have believed that the consent was consensual. The Vermont Supreme Court ordered further proceedings, however, as to whether officers engaged in unnecessarily destructive behavior of the motorist's property during the search of his home, and whether they violated his rights when, following the initial search of his home, they returned and allegedly forced their way in again over his wife's objections. Sprague v. Nally, No. 03-489, 882 A.2d 1164 (Vt. 2005).

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     Computer Crime: FBI 2005 Computer Crime Survey. (19 pgs. 2005). Reports on the responses of 2,066 organizations to a survey concerning what computer security incidents they have experienced. The survey was conducted in four states: Iowa, Nebraska, New York, and Texas. Over 5,000 computer security incidents were reported, with 87% of the respondents experiencing some type of incidents. Many computer security threats came from within the organizations, and of the intrusion attempts appearing to come from outside of the organizations, the most common countries of origin appeared to be the U.S., China, Nigeria, Korea, Germany, Russia, and Romania. The organizations selected for the survey had to be in existence for three or more years, have five or more employees, be within 400 cities covered by the participating FBI offices, and have $1 million or more in annual revenue.

     Evidence: "The Admissibility of Digital Photographs in Criminal Cases," By David P. Nagosky, Special Agent, FBI New York Office, 74 FBI Law Enforcement Bulletin, No. 12 (December 2005), pgs. 1-8. "Agencies have many considerations in ensuring the admissibility of digital photographs in criminal cases."

     Flashlights: "Use of Force and High-Intensity Tactical Police Flashlights," by R. Paul McCauley, Ph.D., Professor of Criminology, Indiana University of Pennsylvania, Indiana, Pennsylvania, 74 FBI Law Enforcement Bulletin, No. 11 (Nov. 2005), pgs. 10-12. [PDF] Also available in .html format.

     Native Americans: Census of Tribal Justice Agencies in Indian Country, 2002 Presents detailed information gathered on tribal law enforcement agencies, tribal courts and services, and criminal record systems from the 2002 Census of Tribal Justice Agencies in American Indian Jurisdictions. This project represents one of several components of BJS' on-going program to improve justice statistics and criminal history record information systems in Indian country. The report includes data on the number of law enforcement agencies and officers; characteristics of tribal courts and their caseloads; types of available criminal sanctions; and criminal justice statistics data collection and sharing capacity. The census collected data from nearly 350 tribes in the continental U.S. and is the first comprehensive effort to identify the range of justice agencies operating in tribal jurisdictions, the services those agencies provide, and the types of information systems maintained. Highlights include the following: 165 of the 314 responding tribes employed 1 or more full-time sworn officers with general arrest powers. An estimated 59% (188) of the 314 tribes had some form of judicial system. About 23% (71) of the responding tribes provided their own detention function. About two-thirds relied on local or county agencies to provide a jail or detention facility. 12/05 NCJ 205332. Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Sexual Assault: Sexual Assault on Campus: What Colleges and Universities Are Doing About It. NCJ 205521, December 2005, Research for Practice, National Institute of Justice, by Heather M. Karjane, Bonnie S. Fisher, and Francis T. Cullen. Summary Full Report.

     Supreme Court Review: "Supreme Court Cases 2004-2005 Term," by the FBI Academy Legal Instruction Unit, 74 FBI Law Enforcement Bulletin, No. 12 (December 2005), pgs. 14-23. Six Supreme Court decisions of particular importance to law enforcement are summarized.

     Terrorism and National Security Issues: U.S. Dept. of Justice Inspector General's Report, "A Review of the FBI's handling of the Brandon Mayfield Case," January 2006. Brandon Mayfield is an Oregon attorney detained by federal agents for a time on the basis of a belief that a fingerprint found on a bag of detonators used in the March 11, 2004 terrorist attacks on commuter trains in Madrid, Spain was his. The attorney, a convert to Islam, was subsequently found not to be linked to the attack. The report found that "three experienced FBI examiners and a court-appointed expert," while confused by the similarity between Mayfield's fingerprint and the print found on the detonators, did not engage in any intentional misconduct. The report further found that the main factors resulting in "the FBI's failure to question the original misidentification and catch its error were the similarity of the prints and the Laboratory's overconfidence in the superiority of its examiners." Click here to read the FBI's response to the report.

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

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