CONTENTS

Police officers who encountered an intoxicated man who threatened his wife, disabled her car, and refused to cooperate with being arrested and handcuffed did not act unreasonably in using physical force and mace to subdue him. They could reasonably believe, under the circumstances, that he posed a threat to his wife, children, others present, and themselves.

     A North Carolina man arrested by two police officers claimed that they used excessive force against him, and sued both the officers and the town which employed them. A federal appeals court has upheld summary judgment for the officers on the basis of qualified immunity, and found that, given a finding of no violation of Fourth Amendment constitutional rights, there was no basis for the claims against the town.

     The arrestee had allegedly consumed four twelve-ounce beers at his home, and when his wife came home, her teenage daughter told her that he was "drunk and tearing up the house." She took their 23-month-old child and drove to the police station for assistance, and a police officer accompanied her back to the house. Once there, after some "loud conversation" with the intoxicated man, the officer summoned another officer for backup.

     The wife told one of the officers that there was a gun in the house, but that she had hidden it from her husband. The husband left the house, took a car's spark plug wires out of the vehicle his wife had been driving, put his hand on her face, and stated that she would not be "carrying my children no where." The wife told an officer that she wanted her husband arrested for domestic violence.

     The arrestee allegedly refused to cooperate with being handcuffed, and a struggle ensued. The officers repeatedly told him to place his hands behind his back, but he refused to do so. During the fight, one of the officers allegedly punched the arrestee in the face, and the other officer sprayed him with mace. The arrestee later claimed that the officers stomped on his foot, punched him repeatedly, kicked him in the face and ribs, and sprayed his eyes with two cans of mace, as well as slamming his face into the fireplace screen. At the time of the incident, however, he allegedly told health care workers immediately afterwards that he "fell against" the fireplace and "hit the fireplace screen during a fall."

     The appeals court noted that it was undisputed that during the struggle between the arrestee and the officers, his mother, his son, his daughters and one of his daughter's boyfriends were also present. Further, even the arrestee conceded that all violence ceased as soon as he was in handcuffs. The arrestee was found guilty of assaulting a female and resisting arrest, but a judgment on these charges was continued, based on the arrestee entering and completing a domestic violence counseling program.

     The appeals court noted that there was evidence that the arrestee had assaulted his wife, and from which a reasonable officer could "certainly conclude" that he intended to hurt her if she did not go along with his wishes. He had been drinking, and the officers knew that there was a gun in the house, and they witnesses him disable the wife's car. Under these circumstances, his actions "cannot be dismissed as harmless," but rather demonstrated that a reasonable officer could conclude that the arrestee posed a threat to the safety of his wife, children, other onlookers, and the officers themselves.

     The arrestee was actively resisting arrest, and the physical force used by the officers ceased after the handcuffing. The appeals court concluded that the officers did not act in an objectively unreasonable manner under the circumstances, and that their actions did not violate the arrestee's constitutional rights.

     Wilson v. Flynn, No. 04-2491, 2005 U.S. App. Lexis 24555 (4th Cir.).

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Because city policy possibly allowed the use of dogs to catch and bite suspects without verbal warnings, summary judgment was improper in excessive force lawsuit brought by homeless man bitten by dog while lying on the floor in a shelter for public toilets. Officer controlling dog, however, was entitled to qualified immunity.

     A homeless man slept in a park in Crystal, Minnesota, lying on the floor of a shelter there for public toilets. Police officers from Crystal, Minnesota subsequently came to the park after finding a car rammed into a tree and abandoned, with an imprint where a head had hit the windshield, and hair sticking out of the lining of the car's roof. The registered owner of the car indicated that he had sold the vehicle. The officers wanted to locate the driver because they believed that the car might have been stolen, and that the driver might be drunk, ill, or injured.

     Crystal officers, who did not have police dogs, utilized a cooperative arrangement with the City of Brooklyn Park, Minnesota, which agreed to send one of its dogs and the officer who handled the dog. When this officer arrived, it was noted that the car was full of "property," which suggested that the car might have been used in a burglary. The officer put on the dog's tracking harness and took him to the wrecked car to try to get the scent of the driver, and then gave him the command to "track," which means to apprehend a person. This command instructs the dog to search for one specific person, and to bite and hold the person until the handler arrives. A "search" command, the court noted, would have told the dog to range out over an area and following any scent that comes up, and a dog given this command should not bite. On a tracking command, the dog is kept on a tracking harness with a lead. The officer later stated that he did not know whether the driver was fleeing because he was involved in a crime or instead had a head injury or otherwise needed medical attention.

     The officer reduced the fifteen-foot lead to less than six feet, and he and the dog ran through the park. The dog allegedly bit the homeless man as he was lying on the floor of the shelter for the public toilets, and the homeless man grabbed the dog's head. The dog lost his hold and bit him again. The officer ordered the man to show his hands, and called the dog off when he complied. The homeless man had bites on his legs and the number of actual bites was not clear, but he had twenty-three tooth punctures on his legs and hip.

     Officers handcuffed and talked to the homeless man, but released him after determining that he had no relationship to the car wreck, sending him to the hospital by ambulance. The homeless man's lawsuit claimed both violation of his Fourth Amendment rights against the use of excessive force and unreasonable search and seizure, and state law negligence claims and claims under a state dog-bite statute.

     The trial court found that the plaintiff had produced evidence that the officer controlling the dog had violated his Fourth Amendment right against use of excessive force, based on the officer's use of the track or bite-and-hold command without first giving a warning that he was going to do so. The court also ruled, however, that at the time of the incident, August, 2000, the right to an oral warning before a police dog was given the command to track was not clearly established, so that the officer was entitled to qualified immunity. The trial court rejected the claim that the individual Crystal officers unlawfully detained the plaintiff, since the record showed that the officers had an objectively reasonable basis to believe that the plaintiff may have been armed and dangerous. It further rejected claims against the cities, based on the plaintiff's failure to identify a municipal practice or policy that caused a constitutional violation. It also rejected various state law claims, in particular the claims under the dog-bite statute, because the plaintiff was in the park after closing time, and was therefore not in a place where he was legally entitled to be, a requirement for recovery under the statute.

     The appeals court found that its recent decision in Kuha v. City of Minnetonka, 365 F.3d 590 (8th Cir. 2004), indicated that the use of a dog to track and bite a fleeing suspect without giving the suspect prior warning violated the Fourth Amendment's prohibition against the use of excessive force.

In that case, the police were tracking a fleeing suspect who had disappeared into a swamp. We concluded that "a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender."

     Since the incident at issue in the immediate case occurred before Kuha, however, the officer controlling the dog was entitled to qualified immunity, as it was Kuha which established the principal that it could be unconstitutional to use a police dog to bite and hold a suspect without giving a prior warning.

We held that, before Kuha was decided, where the suspect's location was unknown, a reasonable officer could have concluded that a warning could place the officers at undue risk from a hiding suspect and that therefore no warning was required.

     As for the unlawful detention claim, the appeals court found that upon first encountering the homeless man, the officers had ground to suspect that he could be involved in criminal activity, and could be armed and dangerous. They were investigating the scene of an accident in which the driver of the wrecked car had chosen to flee, even though there were indications that he had been injured. Further, leaving the scene of an accident is a criminal offense. The lateness of the hour and the fact that the park was closed added to the grounds for believing that the homeless man was involved in crime, and he was wearing a dark sweatshirt with a hood that came down over his face and dark gloves, which could be characterized as "typical of burglars' clothes."

     The detention, including placing the man in handcuffs for no more than two minutes, constituted an investigatory stop based on reasonable suspicion, and was objectively reasonable under the circumstances.

     The appeals court also found that the plaintiff failed to show any constitutional violation by Crystal's officers, barring any claim against that city. It disagreed, however, with the trial court's ruling as to the possible liability of the City of Brooklyn Park. The claim against that city was based on the actions of its officer in giving the police dog a track command without first warning those in harm's way, which the Kuha case held was sufficient evidence of a constitutional violation to withstand summary judgment. "A city operating under a policy or custom that deprives people of their constitutional rights can be liable even though the officer who carried out the deprivation is entitled to qualified immunity." The City of Brooklyn Park could therefore possibly be held liable, even though its officer could not.

     While the city's directive on the use of police dogs failed to discuss the use of the tracking or bite and hold command, it does authorize use of dogs for five purposes, two of which involve apprehending persons: 

"b. To use in arresting known dangerous criminals who will, or might offer physical resistance to the arresting officer or who might attempt to flee or escape custody." and "c. To use in search and apprehension work for intruders, prowlers, escapees, burglars, window peepers, persons known or believed to have committed a crime of violence, persons attempting to flee or escape from police, and to use in trail work to locate missing persons."

     The defendant Brooklyn Park officer, in his deposition, used the terms "apprehend" and "bite" as synonymous. Based on this, the jury could, the appeals court reasoned, find that the policy authorizing the use of a dog to apprehend persons included authorization to use track or bite and hold commands, and the policy failed to discuss the need for a warning. While the city was free to argue at trial that it actually required a verbal warning, despite the apparent omission in the formal policy, it was not entitled to summary judgment.

     Finally, the appeals court upheld the rejection of the state law claims.

     Szabla v. City of Brooklyn Park, No. 04-2538, 2005 U.S. App. Lexis 26152 (8th Cir.).

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If deputy sheriff fired final fatal shot at arrestee fleeing in stolen police car after the vehicle passed him, he violated the arrestee's constitutional rights. The arrestee had been taken into custody for the nonviolent offense of making harassing phone calls, and no longer posed an immediate threat to the deputy after driving past him.

     A deputy sheriff in Hamilton County, Tennessee arrested a man for allegedly making harassing phone calls. He placed the arrestee in his patrol car and then spoke to a tow truck driver to arrange for the towing of the arrestee's vehicle, which was parked nearby. The deputy left his vehicle running in order to provide air conditioning. Because the police vehicle was not equipped with a security partition, when the deputy left his vehicle, the arrestee climbed into the front seat and took control of the car.

     He proceeded to drive off, and the deputy claimed that the vehicle proceeded towards him, and that he managed to move out of its way only at the last moment. The deputy, who stated that he feared for his life and that of the tow truck driver, drew his gun and fired four shots in rapid succession at the arrestee. He claimed that three of the shots hit the car and that the fourth hit the arrestee above the left ear, after which the patrol car shot past the deputy, barely missing him and ran off the parking lot, colliding with a tree.

     The surviving family of the arrestee, who died as a result of the fourth fatal shot, claimed, however, that the deputy did not fire in self-defense, and fired at least the final, fatal shot after the car had passed by him. The officer appeared to concede that he fired while the patrol car was passing him, but claimed that he did so while jumping out of the direct path of the vehicle.

     The family sued the deputy for allegedly using excessive force in shooting the arrestee. A federal appeals court has upheld the denial of summary judgment on the basis of qualified immunity for the deputy.

     Assuming, for the purposes of the appeal, the disputed facts as alleged by the plaintiffs, the appeals court found that, if true, the deputy could be found to have violated clearly established law by shooting and killing the arrestee under these circumstances.

     According to the plaintiffs, the deputy shot and killed the arrestee after the police cruiser was past him and there was no immediate danger to anyone in the vicinity. The appeals court noted that the arrestee had been cooperative up to that point, and was arrested for the "nonviolent offense of making harassing phone calls." While there was some danger to the public from the arrestee's driving off in a stolen police car, that danger was "not so grave" as to justify deadly force.

     Under the principles established by Tennessee v. Garner, 471 U.S. 1 (1985), the appeals court found, if the facts were as alleged by the plaintiffs, a reasonable jury could find that the deputy did not have a justification for the use of deadly force. It is clearly established constitutional law, the court stated, that an officer cannot shoot a non-dangerous fleeing felon who poses no immediate threat of death or serious bodily injury to the officer or others.

     Smith v. Cupp, No. 04-5783, 2005 U.S. App. Lexis 26268 (6th Cir.).

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Officers were properly held liable for shooting man in the leg while he fled from the scene of an arson at a garage, when jury rejected their claim of self-defense. Federal appeals court overturns jury awards against city, mayor, and police commissioner, however, finding no evidence of inadequate training or discipline. Compensatory damages of $4 million to shot man, however, found excessive by $1 million, and awards of $500,000 to each of his parents also found excessive by $400,000 each. Punitive damage awards of $15,000 against each of two officers upheld.

     A man in Puerto Rico was shot twice in the left leg by two police officers while retreating from the scene of an apparent arson at a parking garage. He and his parents filed a federal civil rights lawsuit claiming that the officers used excessive force and that the mayor and police commissioner failed to adopt and implement adequate regulations and training programs instructing the police in the proper use of deadly force. A jury found for the plaintiff and awarded over $5 million in compensatory and punitive damages, including damages to his parents for emotional distress.

     A federal appeals court upheld the verdicts and awards of punitive damages ($15,000 each) against the two officers, while overturning the verdicts against the city, the mayor, and the police commissioner, along with awards of punitive damages in the amount of $50,000 against the mayor and $18,000 against the commissioner. It also vacated the compensatory damage awards, and ordered a new trial on that issue, unless the injured man agrees to accept a reduction of his $4 million award to $3 million, and each of his parents agrees to accept a reduction of their $500,000 awards to $100,000.

     The plaintiff, an active duty serviceman in the U.S. Navy, gave a ride to a fellow Navy enlistee. Under the pretense of showing the plaintiff some antique cars, the passenger had him drive to a municipal parking garage downtown. Once they arrived, the passenger informed the plaintiff that he intended to light a car on fire, and proceeded to set fire to a convertible on the third level of the garage while the plaintiff watched. Two patrolling police officers observed this, and found three cars on fire. The officers ordered the two men, the plaintiff and his passenger, to stop, but they ran away after jumping from the third floor of the garage.

     The officers shot the plaintiff in the left leg. He claimed that he did not have a weapon or any other object in his hand at any time, and that when he was shot, he remained still and waited for the officers. The officers, however, claimed that they saw a metal object being held by the plaintiff with both his hands, prior to shooting him. The officers allegedly feared that this was a weapon, and claimed that they fired in self-defense, as they believed he was turning to shoot at them. No metal object was recovered by these two officers, but a third officer arriving there subsequently allegedly found a metal object in the street. This third officer did not testify at the trial of the plaintiffs' civil rights lawsuit, and the two shooting officers could not say whether the object was what they had seen in the plaintiff's hands, or whether the object was ever fingerprinted.

     The injured man underwent two surgeries on his left leg, but did not recover its full use, and allegedly continues to suffer from chronic pain.

     On appeal, the appeals court upheld the trial court's rejection of qualified immunity for the officers following the jury's verdict. They had argued that, given the "volatility" of the situation, and their belief that the plaintiff was turning to shoot at them, their decision to fire in self-defense was not unreasonable. "The fatal flaw" in that argument, the appeals court found, "is that it ignores the clear implication of the jury's verdict that the jury did not belief their self-defense story."

     Given that, and the jury's award of both compensatory and punitive damages, based on a finding that the officers acted with malice or with intent or reckless indifference to violate the plaintiff's constitutional rights, the trial court properly denied the two officers qualified immunity.

     The appeals court found, however, inadequate evidence of municipal liability or liability by the mayor or police commissioner. It found that there was undisputed evidence that both officers were trained by the Puerto Rico Police according to the policies of the Puerto Rico Police Department, and that those policies were consistent with established constitutional rules on the use of deadly force. The officers also had certificates showing that they had participated in ongoing training in the proper handling and use of firearms. Both officers testified that they had been trained that they may only use deadly force when the officer's life or the life of another person is in danger. Whether the individual city, Fajardo, established its own regulations on deadly force was irrelevant to the inadequate training claim, given the training provided.

     The fact that the two officers were not disciplined for the shooting incident was also insufficient to support municipal liability, when the police department did conduct an investigation and found that the officers were justified in their use of force. The appeals court was not surprised that two different fact-finders, the police investigators and the jury, came to two different conclusions about the disputed facts in the case. Standing alone, the lack of any disciplinary charges against the officers did not show a "well settled and widespread" policy or custom, or deliberate indifference by the city to constitutional violations in the use of deadly force by officers.

     Given the lack of municipal liability, the appeals court also found no basis for liability on the part of the mayor or police commissioner, who were not directly personally involved in the shooting incident, and could not be found to have participated in inadequate training or disciplining, since no such inadequacy was proven.

     Finally, while upholding the punitive damage awards of $15,000 against each officer, the appeals court found that the compensatory damage awards were excessive, and ordered a new trial on compensatory damages unless the shooting victim would agree to a reduction of his award from $4 million to $3 million, and each of his parents would agree to a reduction of their individual $500,000 awards to $100,000. In doing so, it noted that the parents did not suffer any "loss of consortium" with their son, and enjoyed the same kind of relationship with him after the shooting as they had before it, but only suffered emotional damages from his injuries.

     Whitfield v. Melendez-Rivera, No. 04-1217, 2005 U.S. App. Lexis 26549 (1st Cir.).

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Arrestee failed to show that arresting officers violated his due process rights by allegedly suppressing evidence concerning the details of his arrest, when that evidence was not material to the criminal charges he faced. He therefore could not pursue his malicious prosecution claims, and he abandoned any Fourth Amendment false arrest claim that he may have had.

     A real estate broker and rent collector who also operated as a "debt-collection enforcer," went to Chicago with an associate to collect payment of a debt a businessman there allegedly owed to the enforcer's employer, a clothing importer. He and his associate were arrested and charged with federal crimes stemming from the stash of illegal weapons and explosives he carried with him and his attempt at extortion. At trial, the associate pled guilty and testified against the enforcer, who was then convicted of conspiracy to commit extortion, interstate travel in aid of racketeering, and using or carrying firearms during a crime of violence.

     On subsequent appeals of the enforcer's criminal conviction, based on several inconsistencies between the arresting officers' stories surrounding the arrests, evidence uncovered during the arrest was ordered suppressed, and the government subsequently dismissed the indictment. The alleged enforcer then filed a federal civil rights lawsuit, claiming malicious prosecution under both Illinois and federal law.

     The trial court granted summary judgment to the two defendant Chicago police officers who originally stopped and arrested the plaintiff, finding insufficient evidence to show that they violated the plaintiff's due process rights by withholding evidence.

     On appeal, the plaintiff argued that he presented sufficient evidence to create an issue of fact as to whether the officers suppressed a printout from the National Crime Information Center ("NCIC") and the Law Enforcement Automated Data System ("LEAD") and also concealed false information within a police report created by the officers.

     The appeals court upheld summary judgment for the officers, however, because the evidence that the plaintiff argued they suppressed was not material to the criminal charges he faced, and was also either readily available to him before his criminal trial, or evidence that he could have testified to at trial. In particular, the appeals court found that the trial court properly found that the NCIC/LEAD report, which detailed when the police actually run the arrestee's driver's license into the system during his initial stop by the officers, was information that his lawyer could have readily obtained via subpoena, and also the type of evidence that the arrestee could have testified to at trial. The appeals court found that there was no evidence that was both material to the arrestee's defense and also suppressed by the officers, so there was no violation of his right to due process.

     The appeals court also found that the plaintiff abandoned and waived any Fourth Amendment false arrest claim that he may have had.

     Ienco v. Angarone, No. 03-4193, 2005 U.S. App. Lexis 24467 (7th Cir.).

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Motorist who was run over by Indian tribal police vehicle while hiding on the ground in alfalfa field after abandoning vehicle at the conclusion of high-speed chase could not recover damages under Federal Tort Claims Act. His own negligence in eluding officers and hiding in the field contributed to his injuries, barring recovery under applicable South Dakota law.

     An 18-year-old motorist in South Dakota filed a lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), seeking damages for injuries he suffered when a Cheyenne River Sioux Tribe ("CRST") police officer accidentally ran over him after he had eluded officers chasing him for alleged speeding and erratic driving, driven into an alfalfa field, and vacated his vehicle. A federal appeals court upheld summary judgment in favor of the defendant, the U.S. government, finding no clear error in the ruling that the plaintiff's own conduct in eluding the officer contributed "more than slightly" to the injuries he suffered, compared to the conduct of the police.

     The plaintiff had allegedly attended a party where he consumed a "great deal" of alcohol, and was then chased by a CRST officer who observed him speeding and driving erratically. During the ensuing chase, the plaintiff left the road and drove through a marsh, and then into an alfalfa field, crashing into a bale of hay. Other CRST officers joined the chase, and observed the plaintiff's vehicle in the field, driving their own vehicles into the field.

     The plaintiff had left his vehicle and was hiding in the alfalfa, which was more than two feet high. When one of the officer's vehicles was approximately 100 yards from his vehicle, he raised his head above the alfalfa. The plaintiff was only a few feet in front of the officer's vehicle, and the officer could not stop before running him over with both his front and rear right ties. The plaintiff suffered serious injuries, including a fractured pelvis and a lacerated urethra, leading to incontinence and loss of sexual function.

     The trial court agreed that the officer was negligent for driving at an inappropriate rate of speed in an area where he could not see persons or objects on the ground. Under the FTCA, however, state laws concerning negligence are applied. Under South Dakota law, an injured plaintiff cannot recover damages if his own negligence is "more than slight" compared to the defendant's negligence. Under this standard, the trial court found, the plaintiff was barred from recovery because of his own actions in eluding police.

     A federal appeals court agreed, finding that the inherent risks created by the plaintiff's own conduct--voluntarily leaving his vehicle and lying face down in the alfalfa field after leading the officers on a high speed chase--were "obvious" and should have been understood by him. His own conduct, therefore, was clearly a contributing cause in bringing about his injuries, and constituted recklessness. The trial court's finding that he was lying in the field in an attempt to continue to elude apprehension was not "clearly erroneous."

     The appeals court also rejected the argument by the plaintiff that he was still entitled to recovery based on the "last clear chance" doctrine, which allows a plaintiff to recover despite his own negligence in some cases where the defendant's "negligent act was the final decisive cause of the accident." The appeals court found that, based on the trial court's determination that the plaintiff was hiding in the alfalfa, it had to assume that he retained the ability to remove himself from danger by revealing himself to the oncoming officers. Despite his alleged intoxication, the court noted, he was able to raise his head above the alfalfa, although he did it "too late" to avoid the injuries. His failure to protect himself from the oncoming police vehicles, the court found, constituted continuing negligence, and there was no showing that the officer actually discovered that the plaintiff was in his path before he raised his head. At that point in time, the officer was only a few feet away and could not stop his car before hitting him.

     Good Low v. US, No. 05-1114, 2005 U.S. App. Lexis 24517 (8th Cir.).

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Certification of class action challenging City of Chicago's past procedures for retrieval of property seized during custodial arrests upheld, despite apparent change in policy and city's attempt to make the case moot by returning $172 in funds seized from the two named representative plaintiff arrestees. Plaintiffs sought, in addition to return of funds, interest, compensatory damages, and attorneys' fees.

     A federal appeals court has upheld the certification of a class action lawsuit claiming that the procedures that the City of Chicago uses for dealing with property seized by officers making custodial arrests violates due process of law. The city argued that the case was moot because it offered "full compensation" to both representative plaintiffs before the class was certified, and thereby ended the controversy.

     The city argued that because no other representative plaintiffs appeared, the class certification was improper. The trial court found, however, that the relief offered by the city was "incomplete," so that the original representative plaintiffs' claims remained viable.

     The appeals court did not reach issues raised by the parties as to whether the plaintiffs' demand for attorneys' fees prevented the class action from being moot, or whether "(and, if so, when) defendants are entitled to pay off representative plaintiffs and decapitate the class."

     The lawsuit challenged the procedures used by the city for dealing with property seized by officers making custodial arrests. Arrestees are each given a receipt for whatever has been taken, which says that they will be notified when the property can be retrieved. At the time the two named representative plaintiffs were arrested, however, the city allegedly systematically failed to fulfill that promise, and neither of them received such notices, even though the city did not assert any entitlement to keep the property ($113 in cash taken from one arrestee and $59 from the other). Each of them allegedly received a "runaround" when inquiring about their money, and police said that the money would be returned only after the arresting officer agreed to do so and signed an appropriate form.

     This, the appeals court bluntly stated, "was baloney," and these statements sent the arrestees on "futile searches" for the arresting officers, who "never seemed" to be available at the police stations when they called, and who never signed any "release" papers.

     After the two arrestees filed the lawsuit claiming that this violated due process of law by retaining property to which the city has no right, failing to notify the owners, and making return depend on the "whim of the arresting officer," the city responded that each arrestee should have asked the judge in the criminal prosecution to order the money's return or else filed an independent civil suit against the city, but that was not what the inventory receipt and its own police department told the arrestees to do.

     The city, according to the appeals court, has subsequently changed the language of the receipts and "may have instructed" officers to "stop misleading arrestees" about how to get their property back. The plaintiffs, however, claimed that they and the class of arrestees they sought to represent were entitled to both damages and also to injunctive relief despite the city's purported new policies.

     The plaintiffs sought, both for themselves and the class, the return of the seized property, prejudgment interest, compensatory damages for the loss of the property's use, and compensation for the value of their time devoted to its retrieval. The city's attorney sent the two representative plaintiffs checks for $113 and $59, along with a promise that a payment of interest would follow. The plaintiffs' attorneys returned these checks because the city had omitted costs and damages. Since the plaintiffs had paid more than $172 (the total of the checks) just to begin the litigation, the city's tendered payments would have left them "net losers," the appeals court commented.

     Tender of payment in such circumstances is "insufficient unless it makes the plaintiff whole and thus must include the filing fees and other costs under 28 U.S.C. § 1920," the appeals court ruled. And a "promise of interest tomorrow differs from cash today," since the city had a "history of delay in payment," so that a "prudent litigant may attach a steep discount to a promise unaccompanied by a check," especially where, as here, the city claims that no interest is owed but that it is offering it only as a "goodwill" gesture.

     The appeals court rejected the city's argument that the plaintiffs, if their claims were proven, were not entitled to damages:

That's not correct: a person whose rights under the due process clause have been violated receives nominal damages if he cannot show out-of-pocket loss or other concrete injury. The City did not tender even $ 1 for nominal damages. Cash on the barrelhead to cover costs, interest, and nominal damages still would not be enough, because plaintiffs want compensatory damages (if not punitive damages). Chicago maintains that they have not established any compensable loss, but this gets the cart before the horse. A court may resolve such an issue if and only if there is a live controversy. A defendant cannot demand and receive an opinion on the merits of some aspect of plaintiffs' claims, pay off the rest, and then contend the whole suit is moot and must be dismissed, consigning the opinion to advisory status. To eliminate the controversy and make a suit moot, the defendant must satisfy the plaintiffs' demands; only then does no dispute remain between the parties.

     Given that the city was apparently unwilling to satisfy the plaintiffs' demands, they and other similarly situated persons were entitled to proceed with their lawsuit. "Perhaps the City is right in thinking that prejudgment interest is all the compensation due and makes nominal damages unavailable because interest represents actual damages from loss of the property's use. Still, this is a question for the district judge to resolve on the merits. A defendant cannot simply assume that its legal position is sound and have the case dismissed because it has tendered everything it admits is due."

     Whether the city is ultimately right or wrong on the merits of the controversy, the appeals court stated, the case was not moot, and the class certification was upheld.

     The appeals court did seem to indicate, however, that the plaintiffs could not achieve success on their claim for injunctive relief to the extent that the city had altered its policies. Only persons damaged by the current policies would have standing to seek an injunction to alter them, but the named representative plaintiffs were adequate representatives of persons allegedly financially injured by the city's old policies and practices regarding the retrieval of property.

     Gates v. Towery, No. 05-1079, 2005 U.S. App. Lexis 25677 (7th Cir.).

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Police officer who stood outside residence while an estranged husband removed property when his wife was absent did not violate the Fourth Amendment. He had no reason to know that the husband would either remove property that was not his or vandalize the wife's property.

     Oak Park, Illinois police came to a residence after a wife called them and reported that her husband had refused to leave as she requested and threatened to physically abuse her. She allegedly showed them a lease to the residence in her name only, and the officers then forcibly ejected the husband. When he asked them when he could return to collect his property, one of them told him that he would need a police escort to do so.

     On a subsequent morning, the husband allegedly phoned the wife, and told her that he was going to burn down her house and shoot out the windows. The wife reported these alleged threats to the police, seeking to have him arrested, but the officers told her to get an order of protection, which she did not do. Later that day, the police dispatcher sent an officer to the residence to serve as a police escort, after receiving a request from the husband for one. The wife was not then home, but the husband and another man were there.

     The officer noticed that the men had gained access to the residence through an open door with no sign of forced entry, and verified the husband's identity, seeing a marriage license, a driver's license showing that address as his residence, an itemized rental agreement listing certain property, and a typed "lease." The lease had both the wife and husband's names and was a forgery, as the wife was the only one on the real lease. The officer, from his police car, accessed a state database and confirmed that the husband's address on his driver's license matched that of the residence. He also learned about a "disorderly conduct" complaint called in earlier that morning from the residence, but no details were supplied. The officer also verified that there were no reported warrants outstanding, orders of protection, or signed complaints against the husband.

     The husband stated that he was in the process of getting a divorce from his wife, and wanted to merely retrieve his property. The officer agreed to remain in front of the house to prevent any possible violence or argument between the husband and his wife, should she return. The husband and his friend moved various property from the residence, and the officer inventoried the items which were removed, which included items such as a television, a computer, and a printer, which were identified on the rental agreement. A second television set, not listed on the rental agreement, was also removed, and the husband claimed it was his.

     A neighbor called the wife, then at a beauty salon, to inform her that her husband was taking "all your stuff," and that the police were present. Before the wife could get home, the husband and his friend drove away, and the officer left. The wife found that items of her personal property, including her television set, were gone, and that the body of her couch and its cushions had been slashed with a knife.

     She sued the police officers and the Village of Oak Park for alleged violations of her Fourth and Fourteenth Amendment constitutional rights by unreasonably seizing her property and denying her substantive due process of law. She also claimed that municipal lack of training and procedures for its officers were a cause of her damages. The federal trial court found no constitutional violation, and granted summary judgment for both the officer and the Village. On appeal, the plaintiff abandoned her substantive due process claim, and argued for the reinstatement of her Fourth Amendment unreasonable seizure claim and her claim for municipal liability based on lack of training and adequate procedures concerning such situations.

     A federal appeals court upheld the result reached by the trial court. It rejected the argument that the officer served as a "lookout" for a criminal act, the theft of the plaintiff's property, and should therefore be held liable. The appeals court characterized this as an "inflammatory, rather than legal," argument.

     The appeals court also rejected the plaintiff's argument that the presence of the officer facilitated the alleged theft as her husband would have been afraid to take and vandalize her property without the officer's presence. The wife was not present during the incident, and the husband's motivation appeared to have been to comply with the instructions that the police gave him to call for a police escort before retaking his property.

     There was no evidence that the officer was somehow "in cahoots" with the husband. He had never heard of or met the husband before, and the husband called the police dispatch, not this officer, to get the process started. There was no evidence to contradict the officer's stated purpose--to prevent an outbreak of violence between estranged spouses.

     The officer had no reason to suspect that the husband would commit a crime in his presence. The husband had himself summoned an officer to the scene, and provided identification. The officer took reasonable steps to attempt to verify his identity, whether there were outstanding warrants or protective orders, and whether the husband had lived at the residence and had a claim to the property. The officer's failure to enter the residence itself could not be held against him, the appeals court noted, since without a warrant, exigent circumstances, or consent, he lacked authority to do so.

     It was the husband, not the officer, who seized and removed the property, and the officer could not be held liable, since his actions did not violate the Fourth Amendment.

     Given the absence of any constitutional violation by the officer, there could be no claim that any action or policy by the Village caused a constitutional violation.

     Pepper v. Village of Oak Park, No. 04-3948, 2005 U.S. App. Lexis 26050 (7th Cir.).

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Warrantless housing code and property tax inspections of the exterior of a house in a remote rural setting were not a search in violation of the Fourth Amendment.

     A property owner had twenty acres of mostly undeveloped land in Maple Grove Township, Michigan. He began the construction of a house in the middle of this property and weather-sealed the structure. He cleared the area surrounding the house, routinely mowed that area, and a clear line allegedly marked the perimeter of the mowed portion. The cleared area was not enclosed by a fence, but it contained a fire pit, pruned trees, and a picnic table. Over one thousand feet of dirt driveway which passes through "swampy and thick" terrain, a row of pine trees, and a rye field, connected the house to a public road. At the mouth of the driveway, the owner erected a metal gate, twenty feet long by three feet high, displaying multiple "No Trespassing" signs, one of which warns "federal officers of the IRS, HEW, HUD, environmental, health and other unconstitutional agencies" as well as "all local members of planning and zoning boards" of a $5,000 per person land use fee. The house could only be plainly seen from two vantage points outside the property--an adjoining parcel to the south and from the air.

     The owner did not get a building permit to construct the house. The township zoning administrator and township tax assessor learned of the existence of the house, and entered the property three times to confirm the zoning violation, to post a civil infraction on the front door of the house, and to conduct a tax assessment through observation of the house's exterior.

     The owner filed a federal civil rights lawsuit claiming that the warrantless entries constituted a Fourth Amendment violation. The trial court, relying on the "open fields" doctrine, granted summary judgment for the defendants, and found that no Fourth Amendment violation occurred.

     The appeals court ruled that the initial inspection of the property, during which the zoning administrator went past the metal gate and "no trespassing" sign, coming within 200 feet of the house, but did not entered into the mowed area around the house, was found to occur in the "open fields," since the defendant did not enter within the "curtilage" or immediately surrounding area around the house, where the owner might arguably have a greater expectation of privacy. While these actions, intended merely to determine whether there was, in fact, a house on the property, may have been a "trespass" under state law, it was not a violation of the Fourth Amendment.

     During a second entry, the zoning administrator returned to post a civil infraction on the front door of the house. The appeals court ruled that this intrusion was not a Fourth Amendment search because, under any definition, "no search of any kind occurred." The defendant was not looking for the purpose of finding something, and did not infringe on any reasonable expectation of privacy. He was not seeking to discover incriminating evidence, and the intrusion was minimal because he never set foot in the house.

     The appeals court found that the third entry, by the township's assessor, presented a more difficult question. He observed the house's exterior, measured it by counting the foundation cement blocks, and took a photograph of the house. He did enter the cleared area constituting the "curtilage" of the house, but did not come closer than four to five feet from it, and did not look into or enter the house. He subsequently sent the owner a letter informing him of the tax assessment.

     The appeals court easily concluded, based on its prior rulings, that the assessor's naked-eye observations of the house's exterior from neighboring property and from the open fields within the property for tax assessment purposes were not Fourth Amendment searches.

     The court noted that the U.S. Supreme Court has held that the Fourth Amendment does not absolutely bar all government encroachment upon the curtilage of a residence. The Fourth Amendment protection of a home "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible."

     The owner had a greater expectation of privacy in the "hidden features" of the house's interior than in the plainly visible attributes and dimensions of its exterior, the court found, since those could be seen from neighboring property and from the air. The purpose of the intrusion was not criminal investigation, but tax assessment, and nothing was "seized." These actions were not "unduly intrusive," and they occurred in the daytime. The appeals court concluded, therefore, that under the facts presented, a property assessor does not conduct a Fourth Amendment search by entering the curtilage of a home for the purposes of tax assessment.

     Widgren v. Maple Grove, No. 04-2189, 2005 U.S. App. Lexis 24656 (6th Cir.).

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Impoundment of car from the owners' driveway after an officer observed the husband teaching his unlicensed wife how to drive was an unreasonable seizure unjustified by the "community caretaking" doctrine. Summary judgment for city and towing company in lawsuit was improper.

     A married couple in Cornelius, Oregon filed a federal lawsuit challenging the constitutionality of the impoundment of their vehicle after a police officer observed the husband teaching his unlicensed wife how to drive. The trial court granted summary judgment for the defendant city and a defendant towing company, and denied the plaintiffs' motion for partial summary judgment on their claims that the impoundment violated their Fourth and Fourteenth Amendment.

     On appeal, the plaintiffs argued that the impoundment was an unreasonable seizure under the Fourth Amendment because it conflicts with the principles of the "community caretaking doctrine," which allows police to impound a vehicle when necessary to ensure that the location or operation of a vehicle does not jeopardize the public safety.

     A federal appeals court held that, under the "special circumstances" of this case, the impoundment was an unreasonable seizure not justified by the community caretaking doctrine. Police, the court stated, have no duty to protect a vehicle parked on the owners' property, and there was no reason to believe that the impoundment would prevent any threat to public safety from its unlawful operation beyond the brief period during which the car was impounded. The summary judgment was therefore reversed.

     An officer observed the wife driving "poorly" and at a speed of about ten miles per hour, as her husband, a licensed and insured driver with valid registration of the vehicle taught her to drive. He suspected that the driver might either be impaired or improperly licensed. Once the vehicle pulled onto the driveway in front of the couple's home, the officer questioned them, and learned that the wife had no license. He then cited her for unlicensed driving and also cited the husband for permitting the operation of the vehicle by an unlicensed driver. He then proceeded to impound the vehicle, under a city ordinance permitting the towing of a vehicle without prior notice if there is a reasonable belief that the driver is operating without a valid license. The officer waited until a tow truck from the towing company arrived and removed the vehicle, which occurred approximately 30 minutes later.

     Such an impoundment is a Fourth Amendment seizure, the appeals court noted, and must be reasonable. A seizure without a warrant is unreasonable per se, subject only to specific exceptions, the court stated. The defendants in the case acknowledged that the only exception applicable to this particular impoundment is the "community caretaking" doctrine. The defendants argued that the court should not "second-guess" an officer's decision to impound so long as the officer had probable cause to believe that the driver violated a vehicle regulation that authorizes the impoundment. The appeals court, however, agreed with the plaintiffs that the reasonableness of an impoundment required more than just the existence of probable cause, but also that the impoundment itself "must comply" with the community caretaking doctrine.

     While a police officer acts reasonably under the Fourth Amendment in making a warrantless arrest if they have probable cause to believe that an arrested person violated a criminal statute, even a very minor criminal offense, the officer's discretion is more limited in impounding and searching vehicles under the community caretaking doctrine.

In their "community caretaking" function, police officers may impound vehicles that "jeopardize public safety and the efficient movement of vehicular traffic." Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft. A driver's arrest, or citation for a non-criminal traffic violation as in this case, is not relevant except insofar as it affects the driver's ability to remove the vehicle from a location at which it jeopardizes the public safety or is at risk of loss. But no such public safety concern is implicated by the facts of this case involving a vehicle parked in the driveway of an owner who has a valid license.

     When the officer in this case issued citations to the husband and wife, the vehicle was already parked in their home driveway, and the husband was licensed to drive it. While he may not have believed that the plaintiffs would comply with all regulations in the future, the vehicle was not then creating any impediment to traffic or threatening public safety. "An officer cannot reasonably order an impoundment in situations where the location of the vehicle does not create any need for the police to protect the vehicle or to avoid a hazard to other drivers."

     The appeals court rejected the argument that the impoundment was justified under the "caretaking" function by deterring the plaintiffs from repeating their illegal activity in the future as too broad an expansion of the authority of the police to impound vehicles. The "deterrence" rationale, the court stated, is incompatible with the principles of the community caretaking doctrine.

Unlike in civil forfeitures, where the seizure of property penalizes someone who has been convicted of a crime, the purpose of the community caretaking function is to remove vehicles that are presently impeding traffic or creating a hazard. The need to deter a driver's unlawful conduct is by itself insufficient to justify a tow under the "caretaker" rationale.

     The appeals court did reject, however, the plaintiffs' due process claim, finding no city policy depriving them of a meaningful opportunity to contest the deprivation of their vehicle after it was impounded.

     During further proceedings on remand, the appeals court stated, the trial court could consider whether the defendants could offer any evidence of a legitimate government purpose for the impoundment sufficient to render the seizure reasonable and to permit the deprivation of the car without prior notice and a hearing.

     Miranda v. City of Cornelius, No. 04-35940, 2005 U.S. App. Lexis 24666 (9th Cir.).

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Damages: Compensatory

     Plaintiff who was awarded $35,000 in compensatory and $6,000 in punitive damages in his civil rights lawsuit against three state troopers for allegedly arresting him without probable cause was not entitled to pre-judgment interest when none of his losses were economic losses, since the award of compensatory damages "made him whole." Had he been awarded damages for economic losses previously experienced, pre-judgment interest may have been available. Robinson v. Fetterman, No. Civ.A. 04-3502, 387 F. Supp. 2d 483 (E.D. Pa. 2005).

Defamation

     Police release of details about man's criminal record to the press after he was fatally shot by a police officer could not be the basis for a federal civil rights claim for harm to his reputation, nor did false statements allegedly made about the circumstances of the shooting support a claim for intentional infliction of emotional distress brought by the decedent's family, although a claim for negligent infliction of emotional distress brought by members of the decedent's family who witnessed the shooting was viable. The decedent did not suffer specific harm to his employment, education, professional licensing or insurance opportunities based on the statements made about him, and under New York law had no protectable liberty interest in his reputation which survived his death. Sylvester v. City of New York, No. 03 Civ. 8760, 385 F. Supp. 2d 431 (S.D.N.Y. 2005).

Defenses: Statute of Limitations

     False arrest lawsuit, filed almost two years after the arrest, was time-barred under Puerto Rico's one-year statute of limitations, which began to run from the time of the arrest. Morales v. Fantauzzi, No. Civ. 04-2255, 389 F. Supp. 2nd 147 (D. Puerto Rico. 2005).

     District of Columbia one-year statute of limitations for false arrest was "tolled" (extended) during the time the arrestee was in jail, and did not start to run until his release from custody. Fernandors v. District of Columbia, No. CIV.A.02-2001, 382 F. Supp. 2d 63 (D.D.C. 2005).

Dogs

     Police officer was not entitled to summary judgment in lawsuit by arrestee claiming excessive use of force in release of police dog, when it was disputed whether or not he received a warning before the dog was released. Court finds no evidence, however, to support a claim of deliberate indifference on the part of the city in adequately training the police dog. Rather, the evidence showed both that the dog was "extensively" trained, and that the city had no awareness of any alleged "vicious" tendencies on the part of the dog. Chatman v. City of  Johnstown, Pennsylvania, No. 04-3630, 131 Fed. Appx. 18 (3rd Cir. 2005).

Domestic Violence

     Law enforcement agencies were not liable for the deaths of a mother and son shot and killed by their estranged husband and father, whose gun, previously taken away when officers responded to a domestic violence call, was subsequently returned to him and then used to shoot them. First, the estranged husband/father had access to another gun in any event, and secondly, the murder victims had no constitutionally protected property interest, protected by the due process clause of the Fourteenth Amendment, to enforcement of a domestic violence protective order entered under Pennsylvania law. Starr v. Price, No. 3:03 CV 636, 385 F. Supp. 2d 502 (M.D. Pa. 2005).

     A Mississippi state statute providing immunity for officers who take reasonable measures to prevent domestic violence did not apply to an officer who allegedly first handcuffed an arrestee during a domestic violence call and then ground the arrestee's face into the concrete floor in reckless disregard of the arrestee's safety. City of Jackson v. Calcote, No. 2003-CA-01318-COA, 910 So. 2d 1103 (Miss. App. 2005).

False Arrest/Imprisonment: No Warrant

     Arrestee who had been convicted in state court of failing to wear his seat belt properly, as required by California law, could not pursue his federal civil rights claim that it was unconstitutional to arrest him for that offense. Additionally, the motorist himself asked to be taken before a magistrate rather than being issued a citation and signing it to promise that he would later appear in court. Hupp v. City of Walnut Creek, No. C03-5387, 389 F. Supp. 2d 1229 (N.D. Cal. 2005).

     University police in Massachusetts had authority to arrest a man on a public street near the campus for alleged violation of a protective order requiring him to stay at least 30 yards away from a student. The fact that the arrestee was an alumnus did not alter the result, and a brochure published by the university describing benefits for graduates did not constitute a contract giving him any right to physical presence on campus under the circumstances. Young v. Boston University, No. 04-P-919, 834 N.E.2d 760 (Mass. App. 2005).

     Probable cause existed for arrest of person who entered a police station with a bag that she identified as a "discovery" which needed to be turned over to the police, and which contained a loaded semi-automatic gun and 19 packets of a substance appearing to be crack cocaine. The motives of the arresting officer were irrelevant to the issue of whether there were objective facts which could support an arrest. Taylor v. City of Philadelphia, No. 04-3022, 144 Fed. Appx. 240 (10th Cir. 2005).

False Arrest/Imprisonment: Warrant

     Officer had probable cause to arrest suspect for arson despite an error in the affidavit for the arrest warrant concerning the amount of insurance the suspect had on the property. The arrest warrant was facially valid and the investigation included interviews with almost forty witnesses indicating that the fire was caused by arson. Additionally, the substantial amount of insurance on the property, even if not stated exactly in the affidavit, provided the owner with a motive for the fire. Bontatibus v. Ayr, No. Civ.A.3-03CV948, 386 F. Supp. 2d 28 (D. Conn. 2005).

     State trooper acted unreasonably in executing an arrest warrant on a suspect at his home in the nighttime when the warrant was for a misdemeanor charge of failing to appear in court on a prior misdemeanor. The bail was set at a low $500 amount, the warrant could have been executed in the daytime, there were no exigent circumstances justifying the nighttime arrest, and no neutral magistrate or judge determined that it was reasonable to make a nighttime arrest. The trooper, however, was entitled to qualified immunity from liability, due to the absence of binding prior precedent on the subject. Cipes v. Graham, No. 3:04CV1412, 386 F. Supp. 2d 34 (D. Conn. 2005).

Governmental Liability: Policy/Custom

     City policy that motorists claimed required officers to arrest them for unlicensed operation of a car any time a Department of Motor Vehicles (DMV) check showed a suspended license was not a violation of the Fourth Amendment. The information gathered from the DMV, along with the warnings included on state summonses provided probable cause for their arrest. McGuire v. City of New York, No. 04-1287, 142 Fed. Appx. 1 (2nd Cir. 2005).

Malicious Prosecution

     In police officer's malicious prosecution lawsuit claiming that he was improperly prosecuted following the death of an arrestee, he could not pursue claims against the county based on the actions of the county coroner, as the coroner was not a county policymaker, but instead only had the authority to make factual determinations as to a decedent's cause of death. Jorg v. City of Cincinnati, #04-4039, 145 Fed. Appx. 143 (6th Cir. 2005).

     City had probable caused to prosecute an employee for aggravated harassment, despite subsequent dismissal of charges for lack of "specificity of threat," when police officer received information that employee sent letters indicating that he was willing to do "anything," including "more serious acts" to attempt to get a favorable outcome in an employment discrimination case. Dorn v. Maffei, No. 02 CIV.2001, 386 F. Supp. 2d 479 (S.D.N.Y. 2005).

Negligence: Vehicle Related

     Illinois state trooper was entitled to sovereign immunity under state law for claims arising out of vehicle collision with motorist's car on a state toll highway which occurred while she was responding to a report of an accident involving injuries, which she was required to treat as an emergency. Because she was acting in a manner "unique" to her employment by the state, she was not required to have her lights and sirens activated for the court to find that she was entitled to sovereign immunity. Kawaguchi v. Gainer, No. 2-04-1017, 835 N.E.2d 435 (Ill. App. 2nd Dist. 2005).

     Passenger who suffered spinal disc injury requiring surgery when the vehicle he was riding in was rear-ended by a state police car awarded $1,700,437 in damages. Damron v. Mitchell, No. 04L-191, Circuit Court for the 10th Judicial Circuit, Peoria, Illinois, reported in Chicago Daily Law Bulletin, pg. 25, November 18, 2005.

Procedural: Discovery

     Dismissal of arrestee's lawsuit, claiming state troopers used excessive force while arresting him, was justified as a sanction for his failure to meet scheduling orders and respond to discovery requests, which prejudiced the defendant troopers. Shelley v. Sprowls, No. 05-1909, 143 Fed. Appx. 459 (3rd Cir. 2005).

Procedural: Evidence

     Evidence of threats that an arrestee allegedly made before his arrest, which were relayed to the officers who arrived on the scene were admissible in excessive force lawsuit to show officers' reason for entering a house with their weapons drawn and immediately rolling him from the sofa to the floor to handcuff him. Gallagher v. City of West Covina, No. 03-55391, 141 Fed. Appx. 577 (9th Cir. 2005).

Public Protection: Crime Victims

     FBI and its personnel were not liable for death of murder victim killed after self-proclaimed bank robber called FBI offering to turn himself in, and allegedly killed the victim the following day after his call was purportedly ignored. Liability was barred under the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a), as the decision as to how to respond to the phone call was discretionary. McCloskey v. Mueller, No. CIV.A.04-CV-11015, 385 F. Supp. 2d 74 (D. Mass. 2005).

     City, mayor, and police chief were not liable for injuries suffered by crowd members assaulted by other persons during a neighborhood celebration which became disorderly. The police officers present, in allegedly failing to intervene, did not put injured crowd members in harm's way or compel crowd members to interact in any specific way. Johnson v. City of Seattle, No. C03-24181, 385 F. Supp. 2d 1091 (W.D. Wash. 2005).

Public Protection: Motoring Public and Pedestrians

     City of New York was not liable for injuries suffered by parade spectators struck by a vehicle in the parade, based on a theory that the police department had been negligent in screening vehicles participating in the parade. Even if the city had assumed a duty to screen the vehicles, there was no special relationship between the city and the spectators injured, and therefore no special duty to protect the plaintiffs against harm. Armstrong v. Scott, 801 N.Y.S.2d 822 (A.D. 2nd Dept. 2005).

Pursuits: Law Enforcement

     Officer's action of conducting a high-speed pursuit of a speeding motorist constituted a "method of providing law enforcement" coming within an exception to state liability under the Georgia Tort Claims Act, Ga. Code Ann. Sec. 50-21-24(6), so there was no liability for the Georgia Department of Public Safety for injuries a motorist suffered in a collision with the vehicle being pursued by a state highway patrolman. The argument that the patrolman had violated written procedures and a state statute in engaging in the pursuit did not alter the result. Blackston v. Georgia Department of Public Safety, No. A05A1319, 618 S.E.2d 78 (Ga. App. 2005).

Search and Seizure: Home/Business

     Genuine issues of material fact as to whether officers executing a search warrant at a residence knocked and announced themselves before entering, and whether they acted maliciously in damaging property barred summary judgment for them in civil rights lawsuit. They did not, however, act unreasonably in handcuffing a resident found on the premises during the search for drugs and weapons. Notice v. Koshes, No. Civ.A.3:03CV1484, 386 F. Supp. 2d 23 (D. Conn. 2005).

Search and Seizure: Vehicle

     A motorist was not precluded, by his state misdemeanor conviction for going through a stop sign, from pursuing his federal civil rights claim based on his alleged unreasonable stop, unreasonable detention and unreasonable search. Under California state law, the misdemeanor conviction was not necessarily binding in a subsequent civil lawsuit. Federal court rules that, in a federal civil rights lawsuit, a prior state court proceeding will be given the same preclusive effect, or lack of effect, as would be given to that proceeding in state court. Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994), which bars federal civil rights lawsuits for damages if success in that claim would necessarily imply the invalidity of a conviction not previously set aside, does not, the federal trial court held, apply if the plaintiff is no longer in custody. Cole v. Doe 1 through 2 Officers of the City of Emeryville Police Dept., No. C-03-5643, 387 F. Supp. 2d 1084 (N.D. Cal. 2005).

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     Arrest and Imprisonment: "Detentions Based on 911 Calls," 12 pgs., Point of View, published by the Alameda County, California, District Attorney's Office (Spring 2005).

     Interrogation: "Miranda: When warnings are required," 31 pgs., Point of View, published by the Alameda County, California, District Attorney's Office (Summer 2005). See also, "Miranda Exceptions," 7 pgs., Point of View (Summer 2005).

     Search and Seizure: "Searches Incident to Arrest," pgs. 1-25, Point of View, published by the Alameda County, California, District Attorney's Office (Fall 2005).

     Statistics: Hate Crimes Reported by Victims and Police. Provides information on the number of hate crimes reported to the National Crime Victimization Survey (NCVS) and their characteristics. This BJS Special Report uses data from victims' reports to the NCVS from July 2000 through December 2003 and from police reports to the FBI's Uniform Crime Reporting Program (UCR) in 2002 to describe characteristics of hate crimes. Information is provided on the motivations for hate crime as perceived by victims, the types of crimes which victims thought were hate-related, reasons for reporting or not reporting hate crimes to police, police response to victim's notification of a crime, the time and place at which hate crimes occurred and offenders' gender, race, age, relationship to the victim, use of weapons, and gang membership. Rates of hate crime are presented for victims by gender, race, ethnicity, age and other characteristics. The report also compares results from the NCVS and the UCR on motivations for hate crime, the types of crimes that involve hate, and the characteristics of victims and offenders. Highlights include the following: Most hate crimes described by victims accompanied violent crimes - a rape or other sexual assault, robbery, or assault (84%). In about half of hate crimes, the victim was threatened verbally or assaulted without either a weapon or an injury being involved. In 41% of hate victimizations reported to police, law enforcement was at the scene within 10 minutes. 11/05 NCJ 209911 Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

     Statistics: Indicators of School Crime and Safety, 2005 Presents data on crime and safety at school from the perspectives of students, teachers, principals, and the general population. A joint effort by the Bureau of Justice Statistics and the National Center for Education Statistics, this annual report examines crime occurring in school as well as on the way to and from school. It also provides the most current detailed statistical information on the nature of crime in schools, school environments, and responses to violence and crime at school. Information was gathered from an array of sources including: - National Crime Victimization Survey (1992-2003) - School Crime Supplement to the National Crime Victimization Survey (1995, 1999, 2001, and 2003) - Youth Risk Behavior Survey (1993, 1995, 1997, 1999, 2001 and 2003) - School Survey on Crime and Safety (2000) - School and Staffing Survey (1993-94 and 1999-2000). Highlights include the following: From July 1, 2001, through June 30, 2002, there were 17 homicides and 5 suicides of school-age youth (ages 5-19) at school. Annually, from 1999 through 2003, teachers were the victims of approximately 183,000 total nonfatal crimes at school, including 119,000 thefts and 65,000 violent crimes. In 1999-2000, about 54% of public schools took at least one serious disciplinary action against a student, amounting to about 1,163,000 actions. 11/05 NCJ 210697 Press release | Acrobat (.pdf) file (766 K) | ASCII file (34K) | Spreadsheets (zip format 121K)

     Statistics: Law Enforcement Officers Killed and Assaulted, 2004, annual report by the FBI. (November 21, 2005). The report indicates that 57 law enforcement officers were feloniously killed in the line of duty last year, losing their lives in 50 separate incidents in 22 states, the District of Columbia, and the U.S. Territories of Puerto Rico and the Virgin Islands. Data from 2, 5, and 10 years ago showed that the 57 officers murdered in the line of duty in 2004 were 5 more than the 52 officers feloniously killed in 2003, 6 more than the 51 officers murdered in 2000, but 17 fewer than the 74 officers slain in 1995. Nearly 10,500 local, state, tribal, and federal law enforcement agencies submitted data regarding their officers who were killed or assaulted in 2004 to the Uniform Crime Reporting (UCR) Program.

     A composite picture of the victim officers feloniously killed in 2004 showed that the average age was 39 and the average length of service in law enforcement was 12 years. Fifty-four of the victim officers were male. Forty-six officers were white, 10 were black, and 1 was Asian/Pacific Islander. Of the 57 officers feloniously slain last year, 17 were killed in arrest situations. Twelve officers were slain in ambush situations, 10 officers while investigating disturbance calls, 6 while investigating suspicious persons or circumstances, 6 during traffic stops or pursuits, 3 while involved in resolving hostage situations or other high-risk tactical situations, 2 officers were slain while handling mentally deranged individuals, and 1 while handling a prisoner. Offenders used firearms to kill 54 of the 57 victim officers. Of these 54 officers, 36 were slain with handguns, 13 with rifles, and 5 were killed with shotguns. Two officers were killed when they were intentionally hit by vehicles. One officer was killed by an individual with a knife.

     In the South, the Nation’s most populous region, 27 officers were murdered in the line of duty, more than in any other region. Ten officers were slain in the Midwest, 9 in the West, and 8 in the Northeast. Three officers were slain in the U.S. Territories. The data that law enforcement agencies provided the FBI’s UCR Program showed that 58 alleged assailants were identified in connection with the 50 separate incidents that claimed the lives of the 57 law enforcement officers. All but one of the incidents in which law enforcement officers were feloniously killed in 2004 were cleared by arrest or exceptional means.

     Eighty-two law enforcement officers were killed in accidents while performing their duties in 2004. Over half of the officers killed in accidents, 48, died as a result of automobile wrecks. Ten officers died of injuries sustained in motorcycle mishaps, and 10 were killed in traffic-related incidents, e.g., struck by vehicles while directing traffic, assisting motorists, or stopping traffic at roadblocks. Four officers were mistakenly shot, 3 died in aircraft accidents, 3 drowned, 1 officer fell to his death, and 3 were killed in other situations.

     The Nation’s law enforcement agencies reported to the FBI’s UCR Program that 59,373 officers were assaulted during the performance of their duties, and 16,563 of those officers suffered injuries as a result of these attacks. Personal weapons (hands, fists, feet, etc.) were used in 80.1 percent of the attacks. Firearms were used in 3.6 percent, knives or cutting instruments in 1.9 percent. Other dangerous weapons were used in 14.5 percent of the attacks on officers.

     Technology: Law Enforcement Tech Guide for Small and Rural Police Agencies (1837K) published by Community Orient Policing Services (COPS), U.S. Department of Justice, (11/8/2005). This practical and user-friendly guidebook is geared to the small and rural police agency, providing strategies, best practices, recommendations, and ideas for successful IT planning and implementation. Agencies with minimal personnel and financing can learn how to implement IT projects from preliminary project planning and project plan creation to technology acquisition, implementation, and maintenance. This guidebook complements the Law Enforcement Tech Guide: How to plan, purchase, and manage technology (successfully!). When used together, they make an impressive toolset for technology implementation.

     Training: "Developing a Scenario-Based Training Program," by Michael D. Lynch, Sergeant, curriculum coordinator and instructor at the West Virginia State Police Academy, 74 FBI Law Enforcement Bulletin No. 10, pgs. 1-8 (October 2005). "Providing officers with realistic training situations will enable them to hone their skills in a safe environment." [PDF] (also available here in .html format).

     Training: "Liability for Failure to Train," by Martin J. King, FBI Special Agent and Instructor FBI Academy, 74 FBI Law Enforcement Bulletin No. 10, pgs. 22-31 (October 2005). "'Deliberate indifference' is a standard of fault that is demonstrated when government policymakers act with conscious disregard for the obvious consequences of their actions." [PDF] (also available here in .html format).

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

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