CONTENTS

Illinois Supreme Court rules that police officers who allegedly failed to assist domestic violence victim in response to 911 call were not entitled to absolute immunity under state law on a claim that their inaction was willful and wanton conduct which caused her death when her husband subsequently shot her. More specific limited immunity provision of domestic violence statute applied instead, with an exception for willful and wanton conduct.

     An Illinois woman obtained an emergency order of protection against her husband. She subsequently phoned 911 at night to request police assistance because he had entered her home. She told the operator that he was violating an order of protection and that he owned a gun. The operator told her to watch for police, and two Chicago police officers were contacted in their beat car and advised of the circumstances.

     The officers allegedly arrived at the woman's home and waited briefly in their car there, departing without assisting her. Five minutes later, the husband shot and killed his wife.

     The executor of the woman's estate filed a lawsuit for wrongful death and the woman's pain and suffering prior to death in state court against the two officers and the City of Chicago. The lawsuit claimed that the decedent was a "protected person" under the state's Domestic Violence Act, and that the officers had a duty to use all reasonable means to prevent further abuse or harassment by transporting her away from her husband or arresting him. The complaint alleged that the officers acted in a willful and wanton manner in failing to investigate and assist the woman, and proximately caused her death.

     The city filed a motion to dismiss, arguing that the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-102, 4-107, which provides absolute immunity for failing to provide police protection, to prevent or solve crimes, or to identify and apprehend criminals, as for failure to make an arrest, barred the plaintiff's claims. The defendant officers joined in that motion. The plaintiff argued, to the contrary, that section 305 of the Domestic Violence Act, 750 ILCS 60/305, which provides limited immunity for failing to render emergency assistance or enforce the statute and contains an exception for willful and wanton conduct, overruled the Tort Immunity Act's absolute immunity in these circumstances.

     The Illinois Supreme Court has now agreed with the plaintiff's argument. It noted that the Domestic Violence Act had its own immunity provision, which was intended to apply to the circumstances of domestic disputes. "Where a general statutory provision and a more specific statutory provision relate to the same subject, we will presume that the legislature intended the more specific provision to govern."

     The Domestic Violence Act lists specific responsibilities of law enforcement officers in domestic disputes, and limits their potential liability to instances of willful and wanton conduct. The court found that the "partial" as opposed to absolute immunity found in that law was a "direct expression of legislative intent," and overrides the absolute immunity for the officers' alleged actions which otherwise would be provided under the more general Tort Immunity Act.

     Moore v. Green, No. 100029, 2006 Ill. Lexis 613.

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Arrest of four female minors for violation of a D.C. law imposing only civil penalties for underage possession or consumption of alcoholic beverages stated a valid claim for violation of their Fourth Amendment rights.

     The District of Columbia's Metropolitan Police Department arrested one male minor and four female minors for underage possession and/or consumption of alcoholic beverages. The minors appealed from the dismissal of their federal civil rights lawsuit brought against the police department and various D.C. officials. They argued that, because their arrests and detentions were based on their violation of a civil statute concerning minor's use of alcohol, there was no probable cause to believe that a crime had been committed. Accordingly, they asserted, their arrests violated the Fourth Amendment.

     A federal appeals court found that the version of the underage possession/consumption law in effect when the male minor was arrested "was not unambiguously a civil offense," it would affirm the dismissal of his claims. The version of the law under which the four female minors were arrested, however, was an "unambiguously civil offense," so it ordered further proceedings on their false arrest claims.

     The male minor was arrested in September of 2000 while walking down a street in D.C. carrying a package of closed containers of beer. The officer who placed him under arrest took him to the police station, where he was held for seven hours and issued a citation to appear in court on a single charge of violating the underage possession law. The four female minors were arrested between October 9 and October 11, 2003 under an amended version of the D.C. law prohibiting underage possession and/or consumption of alcoholic beverages. One of the female minors was arrested at a pub for allegedly consuming an alcoholic beverage belonging to another patron, and held for three hours at the police station before being issued a citation and released. The other three female minors were arrested while walking together down the street carrying paper bags of closed containers of alcoholic beverages, and taken to the police station where they were held for more than three hours, given citations, and released.

     The trial court's basis for the dismissal of the lawsuit was that for a Fourth Amendment violation to arise, the arrest must violate the Fourth Amendment of its own accord, for some reason "other than the mere fact that the arrest was unauthorized under state law."

     The version of the law under which the male minor was arrested might, the court found, have provided, in some circumstances for a criminal penalty as an alternative to a civil fine for possession of alcohol by a minor. He therefore only succeeded in challenging the validity of his arrest under a local law that "may or may not have constituted a crime at the time and, in so doing, he raised a state law issue only," for which he could not pursue remedies for violation of federal civil rights.

     The arrest of the four female minors under the amended 2001 law, however, was "another matter" according to the appeals court. These minors, under the section of the law they were arrested under, could only suffer civil fines or the revocation of driving privileges.

     The arrest of the four female minors for a civil offense, the appeals court found, stated a claim for violation of the Fourth Amendment, so that the dismissal of their claims was improper.

     Doe v. Metro. Police Dep't of the Dist. of Columbia, No. 04-7114, 2006 U.S. App. Lexis 10263 (D.C. Cir.).

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Arrest, pursuant to warrant, of man who allegedly threatened purported trespassers on his club's land by pointing a gun at them did not violate his rights. Officer properly passed along the man's denial of this to the prosecutor along with the statements of the complaining witnesses, and his mere denial was insufficient to eliminate probable cause for the arrest.

     Some lakeside land in Haskell County, Oklahoma was owned by a incorporated club with twenty shareholders, each of whom was "leased" a cabin there and allowed to use the common areas. The president of the corporation, who was one of the shareholders, was concerned about and complained to law enforcement about, frequent trespassing on the club's land by people engaged in off-road activities on adjacent land, including the use of ATVs and dirt bikes. Law enforcement authorities allegedly did not take sufficient action to satisfy him, and he subsequently armed himself with a pistol and confronted three people, a woman, her 13-year-old son, and her nephew, who he insisted were riding four-wheelers onto the club's property.

     While he later claimed that he only showed the alleged trespassers the pistol to let them know that he was "armed for self-protection," they reported that he pointed the gun at them while ordering them to get off the property. An undersheriff was assigned to investigate the conflicting stories, and took statements from all parties, passing them on to an assistant district attorney, without recommending any specific action, while commenting that the "property in question in my opinion is not posted correctly," and that the club president "definitely has no right to pull a weapon on another person just to assert his opinions."

     Based on the statements, and her own interviews with complaining witnesses, the assistant district attorney decided to prosecute the club president, and directed the undersheriff to fill out a probable cause affidavit, after which the materials were presented to secure a warrant. The club president was arrested on a felony charge of pointing firearms at the purported trespassers. Before trial, the case was dismissed without prejudice upon payment of court costs by the club president's lawyer. He then filed a civil rights lawsuit challenging his arrest and complaining of the sheriff's failure to enforce the property rights of the club and its members.

     A federal appeals court upheld summary judgment for the defendants on the false arrest claim. It found no support in the record to show that the undersheriff misrepresented any relevant facts in the affidavit used to obtain the arrest warrant.

     The appeals court noted that a large part of the plaintiff's objection to his arrest was "simply his insistence that his contrary version of events should have been credited." But it was uncontested that the undersheriff did not conceal or withhold the plaintiff's statement, but passed it along with those of the complaining witnesses to the prosecutor. Secondly, a suspect's contradiction of a witness' accusation is usually not sufficient, standing alone to eliminate probable cause, or else it would be "virtually impossible" to secure a warrant for anyone but a confessed criminal.

     In this case, the complaining witnesses stated that the plaintiff pointed his pistol at them and he stated that he did not. Further, even if the land was properly posted, as the plaintiff claimed, the plaintiff still had no right under state law to threaten mere trespassers at gunpoint, as opposed to "resisting" trespassers with reasonable force to defend property.

     The appeals court also rejected the plaintiff's argument that the county sheriff's office alleged failure to enforce the trespass laws with respect to the club's common area property denied him equal protection of law. The court noted that this claim did not involve either a suspect class, such as race, nor a fundamental right. Further, the plaintiff failed to show that he or the club were intentionally treated differently from others similarly situated. Accordingly, he failed to create a triable issue of violation of equal protection.

     Grubbs v. Bailes, No. 05-7076 2006 U.S. App. Lexis 10437 (10th Cir.).

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Police officers did not violate a man's rights by detaining and questioning him after he was reported to be armed in a hardware store. While the man turned out to be a police officer in civilian clothes, the initial identification he displayed did not conclusively confirm this, so the officers did not act improperly in continuing the detention and questioning until they were sure.

     Police officers at a "Home Depot" store in Homewood, Illinois questioned a man because he possessed a gun inside the store. The man, who turned out to himself be a police officer, subsequently filed a lawsuit claiming that the questioning and detention by the officers violated his Fourth Amendment rights and deprived him of his freedom of movement, and that the municipality caused the alleged violation of his rights by failing to properly train the officers. He also claimed that the officers and an attorney acting on their behalf retaliated against him by filing a complaint against him with the Chicago Police Department, and defamed him in violation of state law.

     The federal trial court granted summary judgment for the defendants on the federal claims, and dismissed the state law claims for lack of jurisdiction. A federal appeals court has upheld that result.

     The plaintiff had been shopping at the store, when employees noticed that he was armed and reported this to the Homewood police. The plaintiff was dressed in jeans and a sweatshirt, and there was nothing to indicate that he was a police officer. The officers questioned him, and he confirmed that he was armed. He showed the officers his badge, which stated Chicago Police, and he also produced his driver's license and firearms registration card. The man acknowledged that "badges can be stolen."

     Investigating further, the officers found that the firearm serial number on the firearm card was whited out and another number was hand-written in its place. The plaintiff also produced an identification card that stated "Chicago Police Department," and which contained his photo, but which did not indicate that he was a police officer as opposed to an employee in another capacity.

     Ultimately, the officers were able to confirm, by calling the district where he was employed, that the plaintiff was a police officer, at which point they returned his weapon to him, and left the store. The entire incident took from 14 to 25 minutes. The plaintiff conceded that the officers were justified in initially confronting him, based on him being armed at the store, but argued that they unreasonably extended the duration of the investigative stop, claiming that the badge and identification he initially showed them was sufficient to confirm that he was an officer and entitled to carry a firearm.

     The appeals court did not agree. It found that there was no basis on which a jury could find a Fourth Amendment violation on these facts. The badge, the plaintiff himself conceded, could have been stolen or fabricated, and the firearm registration card, rather than dispelling suspicion, appeared to be altered. His police department identification card also failed to confirm that he was an officer, justifying further inquiry.

     The plaintiff appeared to be complaining that the officers did not "get around" to asking him for the phone number of his work place earlier, but the court noted that nothing had prevented him from volunteering it earlier.

     As for the claim that the officers and their attorneys violated the plaintiff's civil rights by subsequently filing a complaint against him with the Chicago Police Department, the appeals court found that this action was not taken "under color of state law" as required for a federal civil rights claim.

     Once all federal claims were properly dismissed, the trial court could properly decide not to exercise jurisdiction over the remaining state law claims.

     Thurman v. Village of Homewood, No. 05-2940, 2006 U.S. App. Lexis 10881 (7th Cir.).

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Use of deadly force to shoot and kill a suspect fleeing from the scene of an undercover drug bust was only justified if, at the time of the shooting, the suspect's vehicle posed an imminent danger to officers. Factual disputes as to whether or not that was the case made summary judgment in favor of the shooting police detective improper.

     A City of Parma Heights, Ohio, police detective fatally shot a man in the back as he was attempting to flee an undercover drug bust. The dead man's mother and his estate sued the city and the detective, claiming excessive use of force in violation of federal civil rights, as well as various state law claims. The trial court granted summary judgment for the defendants, finding that the detective acted reasonably, as a matter of law.

     A federal appeals court reversed, finding that there were disputed genuine issues of material fact as to whether the decedent, at the time of the shooting, posed a significant threat of death or serious injury to the detective or to others, making summary judgment improper.

     The decedent had been the subject of an investigation after he came under suspicion as a possible high-level ecstasy drug dealer, based on a drug user's statement that he had obtained his ecstasy from the suspect. This drug user agreed to become a confidential informant and cooperate in a controlled buy-bust operation to arrest the suspect. The informant agreed to meet the suspect at a parking lot behind a bar and grill to make a controlled purchase of $500 worth of drugs.

     The detective assembled a team of six officers to assist in the undercover operation. When the informant arrived at the parking lot, the suspect was already parked in the lot, preventing the police from carrying out their plan to position the informant's vehicle in a particular spot for the transaction. The suspect and informant exchanged money and drugs through the windows of their vehicles, and one of the officers then signaled the others to make the arrest.

     Police vehicles, including unmarked cars and marked police cruisers blocked the suspect's vehicle and the entry and exit to the parking lot. An officer yelled to inform the suspect that he was under arrest, and the suspect attempted to flee, backing up his car to attempt to free himself from the block created by the unmarked police vehicles.

     While backing up, the suspect's car made contact with the detective's hand, causing a bruise. The detective subsequently allegedly found the vehicle almost on top of him and turning into his path as it traveled at approximately 30 to 40 miles an hour. He then fired one shot, as the car was allegedly swerving into him. At the time the shot was fired, he stated, the suspect was leaning into the steering wheel toward the passenger's side, away from the detective. The detective stated that he fired through the open driver's side window and did not have time to aim. He argued that if he had not fired, he would have been run over, sucked under the car and killed, and that he therefore acted in self-defense. He also claimed that another officer on the scene was in danger of being jammed by the suspect's vehicle in his effort to escape.

     The plaintiff stated that the detective actually chased after her son as he drove away from the scene, pointed his gun down into her son's open driver's side window, and shot him in the back.

     An autopsy showed that the suspect was shot in his mid-back, just left of the midline. After he was shot, he lost control of his car and crashed into several parked cars. He died of bleeding as a result of the gunshot wound.

     The question of whether the use of deadly force was justified or not, under these circumstances, the appeals court reasoned, depended on whose version of the events was accurate, i.e., whether the detective or other officers were in danger of being injured by the suspect's car. Since there were "unresolved factual issues" as to whether the detective was "chasing after" the suspect's car or the car was turning into him when he fired, summary judgment was improper. Further, if the facts were as the plaintiff alleged, the detective was not entitled to qualified immunity, since he would have fair notice that shooting a suspect in the back when he did not pose an immediate threat to himself or other officers was unlawful.

     The appeals court also reversed the dismissal of the plaintiff's failure to train claims against the city, and ordered further proceedings to determine whether there was a causal link between the city's actions and the alleged constitutional violation.

     Sigley v. City of Parma Heights, No. 05-3035, 437 F.3d 527 (6th Cir. 2006).

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A municipal ordinance requiring door-to-door canvassers who plan to "hand pamphlets or other written material" to residents or discuss with them "issues of public or religious interest" to first register with the police department violates the First and Fourteenth Amendments' guarantee that no state shall abridge the freedom of speech.

     The municipality of Mt. Lebanon, Pennsylvania passed an ordinance requiring door-to-door canvassers who plan to "hand pamphlets or other written material" to residents or discuss with them "issues of public or religious interest" to first register with the police department. A federal appeals court has ruled that this ordinance violates the First and Fourteenth Amendment's guarantees against the abridgement of the right of freedom of speech.

     A federal civil rights lawsuit was brought against the ordinance by a labor union local and two of its volunteers, who were involved in a get-out-the-vote campaign before the 2004 presidential election. The union recruited over 1,000 volunteers to go door-to-door in the county, including in Mt. Lebanon, to discuss the importance of the election, encourage people to vote, and help people find their assigned polling places.

     The lawsuit claimed that Mt. Lebanon's ordinance violated the First Amendment, both on its face, and as applied to the union's volunteers, who planned to go door-to-door and hand out literature. The union also alleged that it did not have the time and resources to register each canvasser individually.

     The appeals court noted that the union had not alleged that it desired or planned to solicit in Mt. Lebanon, so it found that the union had no standing to challenge the requirement that solicitors of donations or sales register and obtain permits.

     The appeals court found, however, that the provisions of the ordinance barring canvassing door-to-door without prior registration violate the First Amendment, citing Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002), in which Jehovah's Witnesses challenged similar canvassing restrictions requiring the prior obtaining of a permit.

     In that case, the U.S. Supreme Court noted that such an ordinance burdens the "significant number of persons who support causes anonymously" by requiring them to identify themselves in the course of the permit application process, and also burdened those whose religious scruples would prevent them from applying for such a license, and on those "patriotic" citizens whose "firm convictions" about their constitutional right to engage in uninhibited debate "would lead them to "prefer silence to speech licensed by a petty official." The Court also stated that the ordinance effectively banned a significant amount of "spontaneous speech," including by persons who made decisions on a holiday or weekend to take an active part in a political campaign, and could not begin to pass out handbills until he or she obtained a permit. "Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor's permission."

     The appeals court found that the scope of the Mt. Lebanon ordinance and the burden it placed on free speech were similar to the ordinance addressed in the Supreme Court case.

Mt. Lebanon's registration requirement extends to the core First Amendment areas of religious and political discourse, and its regulation of written material encompasses all subject matter without limitation. Moreover, its effect on spontaneous speech, anonymous advocacy, and advocacy by those with religious or patriotic scruples is indistinguishable from that of the Watchtower ordinance.

While it is true, as Mt. Lebanon stresses, that this segment of its ordinance requires registration rather than a permit, we do not regard this as a material distinction. Permitting schemes do raise additional constitutional concerns because they present an opportunity for state officials to exercise discretion concerning content or cause delay in the approval process. But, as we have noted, the Watchtower Court found its ordinance to constitute "a dramatic departure from our national heritage and constitutional tradition," even "if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant."

     The appeals court rejected the argument that the burdens imposed on the First Amendment by the ordinance were justified by the municipality's interests in preventing fraud and crime. The canvassing provisions of the ordinance, which don't require commercial transactions or solicitation of funds, are unrelated to the prevention of fraud. Additionally, it seems unlikely that the ordinance would prevent criminals from knocking on doors and engaging in conversations not covered by the ordinance, such as asking for directions or permission to use the phone or posing as a census taker.

     Serv. Employees Int'l Union v. Municipality of Mt. Lebanon, No. 04-4646, 2006 U.S. App. Lexis 10596 (3d Cir.).

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Truck driver of Iranian national origin failed to show that he was prevented from using a gasoline restroom or paying for his gas on the basis of his race, but was entitled to further proceedings on his assertion that an off-duty police officer working as a security guard there arrested him for disorderly conduct and trespass without probable cause.

     After he was arrested for disorderly conduct and trespass, a truck driver of Middle Eastern (Iranian) descent accused of trying to leave a gas station without paying for fuel, sued the gas station, its manager, the off-duty police officer employed there as a security guard, the security company, and the City of Gary, Indiana, which employs the officer, for interfering with his right to make and enforce contracts on the basis of race in violation of 42 U.S.C. Sec. 1981 and for violating his Fourth and Fourteenth Amendment rights by arresting him without a warrant or probable caused.

     The federal trial court granted summary judgment on these claims.

     The truck driver had pumped gas into his truck, and gone inside the station to wait in line to pay. After waiting in line a while, he decided to use the bathroom before paying. According to him, two Caucasian truck drivers also left the cashier's line to go to the restroom. The plaintiff, however, was approached by the manager on the way, and was allegedly told, in a hostile manner, that he could not use the restroom and had to leave the facility. The manager allegedly believed that the plaintiff had provided false information to the fuel desk, although subsequently he could not recall what the false information was.

     The plaintiff claims that he then told the manager that he could not leave because he still had to pay for his gas. During this exchange, an auxiliary Gary, Indiana police officer, employed at the gas station as a security guard working for a security company, told the plaintiff to leave, and the plaintiff again responded that he had to pay for his gas. The off-duty officer/security guard allegedly called him a "motherfucker," handcuffed him, placed him under arrest, and told him that he was going to send him "back to his country."

     The security guard took him to a manager's office where he was detained and questioned for a couple of hours. The security guard prepared an arrest report and an offense report on Gary Police Department forms, and charged him with disorderly conduct and criminal trespass. The documents stated that the arrestee was not born in the U.S. and that his race is "Persian." He was taken to the city jail by another officer, and released after posting bond. The arrestee later negotiated a "deferred prosecution" agreement with the prosecutor, under which the charges were dismissed after six months.

     The plaintiff claimed that the defendants intentionally discriminated against him on the basis of his race and national origin, and that the city and its officer (the security guard) arrested him without probable cause.

     42 U.S.C. Sec. 1981 protects the right of all persons in the U.S. to "make and enforce contracts" in the same manner as is enjoyed by "white citizens." Sec. 1981, the appeals court noted, applies to race but not national origin, but "race" has often been interpreted "broadly." Additionally, the plaintiff himself testified that Iran is a "non-Arab" country in the Middle East and that Iranians are "white" or "Caucasian."

     Despite this, the court noted, other courts have found that Iranians may state a claim for race discrimination under Sec. 1981. But the plaintiff's own testimony, the court pointed out, stated that he has "no physical attributes that make him appear to be foreign born or of a minority race."

     As the manager selected him to be singled out and asked to leave before hearing his accent, moreover, there was no material issue of disputed fact as to whether the manager even knew of the plaintiff's race and national origin at the time, i.e., no knowledge he was Iranian, dooming the plaintiff's racial discrimination claim against the manager and gas station. The off-duty officer/security guard, however, obviously knew that the plaintiff was of a minority race, based on his alleged comment during the arrest that he would send the plaintiff "back to your country," and his listing of the arrestee's race as "Pershen [sic]" on the arrest paperwork, but the plaintiff's Sec. 1981 claims were not asserted against the officer or the City of Gary. The officer's awareness of this, however, could be relevant to the Sec. 1983 false arrest claim against him, however.

     The appeals court found that, on the basis of the plaintiff's version of the events, if true, that he did not raise his voice and merely stated that he needed to pay his bill, there would be no probable cause for an arrest for disorderly conduct. Further, paradoxically enough, while the plaintiff testified that the manager told him to leave, the manager's own testimony was that he did not do so, but instead told him that he could not leave until he paid his bill. Based on this, there would also be no basis to arrest the plaintiff for trespass, the court noted.

     Without deciding the factual issue of whether the police officer, when he asked the plaintiff to leave, was acting in his capacity as an agent of the gas station or in his capacity as a police officer, the appeals court found, it could not determine whether there was probable cause to arrest him for trespass when he refused to do so. These issues, the court found, were factual ones that had to be resolved by a trier of fact.

     The appeals court overturned the summary judgment for the off-duty officer on the Sec. 1983 claim civil rights claim for false arrest. It also reversed summary judgment granted to the City of Gary, Indiana, which the trial court had granted even though the city had not filed a separate summary judgment motion. While the appeals court commented that "it seems hard to imagine" that the plaintiff could produce proof that the city "has a policy of arresting Iranians without probable cause or of arresting citizens for trespass or disorderly conduct without probable cause, due process requires" that he have an opportunity to attempt such a claim if he believes, in good faith, that there is evidence to support that claim, or that he is likely to have such evidence after an opportunity for discovery.

     Pourghoraishi v. Flying J, Inc., No. 05-1107, 2006 U.S. App. Lexis 9875 (7th Cir.)

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Police officers' warrantless entry into backyard and residence were justified by reports of gunshots coming from the home and the failure of the residents inside to respond to knocks on the door.

     Three police officers from Bay City, Michigan appealed from the denial of their motion for summary judgment on the basis of qualified immunity in a lawsuit brought against them for their warrantless entry and search of a backyard and residence. Two residents of that home claimed that these actions violated their Fourth Amendment rights. The officers were then responding to a confirmed 911 call that gunshots had been fired from the home.

     A federal appeals court, finding that exigent circumstances justified the warrantless entries and searches, found that the officers were entitled to qualified immunity from liability.

     The officers confirmed with a neighbor who had placed the 911 call that she had heard a single gunshot from the residence, followed a few minutes later by five more gunshots, all coming from the back area of the property. She also told the officers that shots had been fired from that residence the previous July 4th and the previous New Year's Eve, and that she had not seen anyone leave or enter the residence since she placed her call to 911.

     No response was received to a knock on the door. The officers entered the fenced backyard of the home. In a small indentation in the snow on the back patio deck, an officer scooped up a bullet casing. Another officer saw other indentations and scooped up three more bullet casings from the snow. One of the officers also knocked on the back door and received no answer.

     There was no response to a phone call made to the residence. It was also learned that, earlier in the evening, the dispatcher had received a hang-up call from the residence, followed by a return call explaining that the earlier call had been made by a child playing with a telephone. A neighbor informed the officers that she did not think there were any children at the residence. Based on this, a sergeant authorized a warrantless, forcibly entry of the residence to check for any injured persons inside.

     After backup arrived, the officers knocked again on the front door, and then, after yelling that police would be entering, they forced the front door open with a battering ram. The two occupants inside told the officers that they were "fine," and no signs of injury or fighting were found.

     The appeals court found that, under these circumstances, the officers did not violate the plaintiffs' Fourth Amendment rights by entering either the backyard or the residence. Under the circumstances, they had a reasonable fear that someone in the house needed their immediate assistance, and may have been injured.

     Their actions in briefly investigating the situation after entering the residence were also justified, despite the plaintiffs' statements that they were fine. Under the circumstances, the officers could have thought either that the plaintiffs were concealing another person (perhaps injured by the gunshots) or that the plaintiffs themselves were being intimidated by an unseen attacker in the residence.

     Causey v. City of Bay City, No. 05-1142, 442 F.3d 524 (6th Cir. 2006).

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Officers' initial entry into garage apartment adjacent to home being searched under warrant for drugs was a reasonable mistake, but genuine factual issues as to whether they acted reasonably in continuing the search there and detaining the occupants for approximately an hour and a half required further proceedings.

     A couple in South Salt Lake, Utah rented and resided in the garage apartment adjacent to another building where a narcotics agent with the Utah Department of Public Safety's Bureau of Criminal Investigations had been investigating and observing the residents on suspicion of drug dealing.

     After a search warrant was obtained for that adjacent building, a search team, including a SWAT unit, prepared and executed an operations plan that involved a midnight raid on both residences. During the raid, the couple in the garage apartment were detained for at least an hour and a half before they were released. As a result, the couple filed a federal civil rights lawsuit against participants in the raid. A federal trial court granted qualified immunity to each of the defendants.

     The affidavit for the search warrant described the home to be searched as including a detached garage to the rear of the house on the east side. The search warrant authorized the officers to search the property described, "including any and all outbuildings and curtilage of the property."

     A federal appeals court found that the officers' initial entry into the couple's garage apartment was an "objectively reasonable mistake," so that summary judgment on claims related to the initial entry was upheld. As for the continued detention of the couple for up to an hour and a half, however, the appeals court found that there were material factual disputes as to the reasonableness of those actions, requiring further proceedings.

     The warrant, the appeals court found, adequately described the premises to be searched, although the garage apartment actually had a separate address. There were no intentional omissions or misstated material information in the affidavit for the warrant, even though the officer failed to accurate state the garage's address.

     The plaintiffs argued that the officers who entered their garage apartment acted unreasonably and did not terminate the search and detention when they realized that they had raided a separate residence with occupants unrelated to the suspects in the main house. The appeals court found that there were material facts in dispute as to the reasonableness of the length of the detention of the couple, and when the officers' authority to detain them terminated.

     Further, the officers argued that once they entered the garage apartment, they observed marijuana and a pipe in plain view, which gave them the right to seize it without a warrant. They acknowledged, however, that the marijuana was not a drug specified in the affidavit for the warrant, which specified cocaine and heroin. While there was an argument that a portion of the officers' detention of the couple was justified on the basis of the presence of the marijuana, further proceedings were required, since the trial court did not address that issue.

     Harman v. Pollock, No. 04-4294, 2006 U.S. App. Lexis 10886 (10th Cir.).

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Mother and her five children could proceed with their lawsuit asserting civil rights claims based on officers' actions in approaching her car with guns drawn in front of her house when they mistakenly believed that her 14-year-old son, who exited the vehicle, was a fugitive they hoped to apprehend at a nearby house.

     Federal and local law enforcement officers hoping to catch a fugitive wanted for drug and weapons crimes set up undercover surveillance outside a house in Newark, Delaware. During the surveillance, a woman who lived near the target house pulled up in front of her house with five of her children in the car. Her 14-year-old son got out of the vehicle to leave his skateboard in the garage and to summon his sister from the house. Before realizing that they had the wrong person, the officers approached the car with their guns drawn, and then entered the home where they tackled and handcuffed the 14-year-old son. The family filed a federal civil rights lawsuit against the officers and various government entities involved in the incident.

     The federal trial court granted summary judgment in favor of all defendants, finding that they acted reasonably. A federal appeals court ruled that the trial judge wrongfully failed to consider the facts in the light "most favorable" to the plaintiffs, requiring further proceedings.

     The defendants, referring to the 14-year-old son, claimed that they saw a "white male" get out of the vehicle, go towards the rear of the residence and peer into windows, and then attempt to open a rear sliding glass door into the house, but fail to gain entry. They argued, and the trial court agreed, that this gave officers reasonable grounds to approach the house to investigate this "suspicious behavior," including the son entering the house through another rear door after allegedly looking to the left and right as if he were making sure that no one could see him. Further, the officers believed that the son was the fugitive they were seeking, supposedly giving them reasonable suspicion of criminal activity justifying the seizure of the woman and the children in the car.

     The problem, the appeals court found, was that all these "facts" were disputed by the plaintiffs. The son stated that he simply walked into the garage, put his skateboard on a bench and looked through a window from the garage into the house. When he began to exit the garage, he allegedly saw a man (one of the officers) "charging" towards him with a gun. The son did not admit to looking through multiple windows, attempting to gain entry through a rear glass door of the house, or looking left and right "as if he was making sure no one could see him."

     The appeals court further noted that the trial judge failed to take into account the mother's statement that she put her car's high beams on and blew her horn when she pulled into her driveway, which could reasonably be argued to be behavior "uncharacteristic of a getaway car." Additionally, one of the officers allegedly admitted to the mother that he had seen the four children sitting in the car when he initially approached, which supported the plaintiffs' argument that the officer acted unreasonably in approaching the car with his weapon raised.

     Additionally, the appeals court noted, the plaintiff's house was not the house under surveillance, so under the plaintiffs' version of the facts, it was not reasonable for the officers to assume that the 14-year-old son was the fugitive they were seeking, or that he was a burglar. Nothing that the plaintiffs did, according to their version of the events, was suggestive of criminal conduct.

    The appeals court ordered further proceedings on the claim that the officers used excessive force against the 14-year-old son. The appeals court ruled, however, that various municipalities named as defendants properly were granted summary judgment as there was insufficient evidence of any municipal policy or custom resulting in the alleged constitutional deprivations.

     Couden v. Duffy, No. 04-1732, 2006 U.S. App. Lexis 10801 (3d Cir.).

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

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Assault and Battery: Physical

     Police officers did not use excessive force in restraining "psychotic and aggressive" man who refused to obey police orders to leave premises of music studio, refused orders to drop a pen he was holding, and resisted efforts to handcuff him. Medical evidence showed that he died from a heart attack during the encounter, and was susceptible to one because of 90% blockage in his arteries. Court finds no evidence that he died of asphyxia or was choked, or that a purported inadequacy in training as to how to arrest persons exhibiting signs of excited delirium syndrome caused his death. Gregory v. County of Maui, No. Civ. 04-00516, 414 F. Supp. 2d 965 (D. Hawaii 2006).

Attorneys' Fees: For Defendants

     Federal trial court's award of attorneys' fees to defendant city and police officers in federal civil rights lawsuit was improper and an abuse of discretion when it failed to provide any reasons or explanations for the award, and also failed to calculate the amount of attorneys' fees in compliance with prior instructions from a federal appeals court. Dehertoghe v. City of Helmet, No. 04-55533, 159 Fed. Appx. 775 (9th Cir. 2005).

Disability Discrimination

     Arrest of a deaf motorist for driving under the influence (DUI) did not violate his right against disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131, or the Rehabilitation Act, 29 U.S.C. Sec. 794, since the basis of the arrest was not his disability, but rather probable cause, based on observation of his driving, and the smell of alcohol on his breath, to believe that he was in fact intoxicated, along with failure of a roadside sobriety test. Bircoll v. Miami-Dade County, No. 05-20954-CIV, 410 F. Supp. 2d 1280 (S.D. Fla. 2006).

Domestic Violence

     County sheriff and other law enforcement officials were not liable for failing to protect woman from being murdered by her estranged husband based on their alleged failure to take adequate measures in response to her report that he had assaulted and raped her two weeks before. There was no indication that the decedent had justifiably relied on any affirmative promises by the defendants to provide protection or take particular action, and therefore no "special relationship" between the defendants and the decedent sufficient to support the imposition of liability. Kromer v. County of Onondaga, 809 N.Y.S.2d 723 (A.D. 4th Dept. 2006).

Emotional Distress

    Officers' actions in arresting a man for allegedly interfering with their interview of his companion about a report of a man driving a dirt bike and carrying a gun in the vicinity was not "extreme and outrageous" as required for a claim for intentional infliction of emotional distress under New York state law. Lee v. McCue, No. 04CIV.6077, 410 F. Supp. 2d 221 (S.D.N.Y. 2006).

False Arrest/Imprisonment: No Warrant

     Deputy was not entitled to qualified immunity for arresting a mobile home occupant inside her residence when there were factual issues as to whether he possessed either an arrest warrant or probable cause for the arrest at the time of entry. Additionally, because the duty of an officer to intervene to prevent an unlawful arrest was clearly established at the time, a second deputy who was present was also not entitled to qualified immunity for his failure to do so. Lepone-Dempsey v. Carroll County Commissioners, No. 05-13547, 159 Fed. Appx. 916 (11th Cir. 2005).

     Officer could arrest a suspect for her refusal to provide identification, and the arrestee therefore could not recover damages on her civil rights claim alleging that the police department had a policy of inadequate training on arrests for refusal to provide identification. Coatney v. Las Vegas Metropolitan Police Dept., No. 04-15475, 158 Fed. Appx. 790 (9th Cir. 2005).

     Officer responding to a report of a domestic disturbance between a mother and her 16-year-old daughter had probable cause to arrest the mother when she allegedly obstructed his efforts to investigate the incident by continuing to approach and interrupt his conversation with the daughter after she had been told not to do so. Sullivan v. City of Pembroke Pines, No. 05-12754, 161 Fed. Appx. 906 (11th Cir. 2006).

     Suspect's arrest on a charge of disorderly conduct after he placed "tombstones" bearing the names of his neighbors on his lawn and engaged in an altercation with one of his neighbors in an officer's presence was supported by probable cause. Factual issues as to whether the references to the neighbors on the "tombstones" were "fighting words" or protected First Amendment speech barred summary judgment for officer on arrestee's claim that his rights were violated when he was asked to take down the "tombstones" placed in his yard. Purtell v. Mason, No. 04C7005, 412 F. Supp. 2nd 903 (N.D. Ill. 2006).

False Arrest/Imprisonment: Warrant

     Even without allegedly false information provided by police inspector in his affidavit for the arrest warrant, there was probable cause to issue the warrant for the arrest of the suspect based on the minor victim's statements that he had repeatedly touched her in the area of her vagina, and a therapist's report indicating that the suspect had touched the victim's chest area and bottom. Police inspector was therefore entitled to qualified immunity from arrestee's Fourth Amendment claim. Guerrero v. City and County of San Francisco, No. 03-17313, 156 Fed. Appx. 36 (9th Cir. 2005).

First Amendment

     While the statements "Allah praise the Patriot Act," and "JIHAD on the First Amendment," painted on the side of an arrestee's car, were protected speech under the First Amendment, there was a genuine factual issue as to whether other statements on the vehicle, such as that the driver was 'a fucking suicide bomber communist terrorist!" with "W.O.M.D. on Board" were a "true threat" not protected as free speech. Officers who arrested him were therefore entitled to qualified immunity from liability as to his claim that his arrest violated his First Amendment rights. Fogel v. Grass Valley Police Department, No. Civ. 05-0444, 415 F. Supp. 2d 1084 (E.D. Cal. 2006).

Interrogation

     Suspect questioned, and searched on the premises of his employer, an auto manufacturer, during an auto vandalism investigation, voluntarily consented to answer questions and to be searched by sheriff's deputy, so that he could not pursue a federal civil rights claim for these actions. Despite his argument that he did not feel free to leave and that the deputy read him his Miranda rights, the court found that there was no "objective coercion" in the incident. Aquino v. Honda of America, Inc., No. 04-4274, 158 Fed. Appx. 667 (6th Cir. 2005).

     Refusal to allow suspect to call his lawyer or otherwise speak to his counsel while he was being interrogated could not be the basis for a claim of violation of his Sixth Amendment right to counsel when it occurred before he was charged, rather than after the initiation of formal criminal proceedings. James v. York County Police Dept., No. 05-2852, 160 Fed. Appx. 126 (3rd Cir. 2005).

     Casino patron who alleged that two casino private security guards conspired with a state trooper while engaging in custodial interrogation of him to deny him requested access to a lawyer, sufficiently stated a federal civil rights claim against the security guards. Lassoff v. New Jersey, No. CIV.A. 05-2261, 414 F. Supp. 2d 483 (D.N.J. 2006).

Malicious Prosecution

     Despite her claim that her first conviction for rape and sodomy, subsequently set aside, was caused by county prosecutors withholding exculpatory materials in violation of her due process rights, she could not pursue her federal civil rights claim for malicious prosecution when she was again found guilty of lesser charges and sentenced to time served on retrial. The plaintiff could not show, based on these facts, that the criminal prosecution had terminated in manner favorable to her. Stein v. County of Westchester, No. 05 Civ. 3729, 410 F. Supp. 2d 175 (S.D.N.Y. 2006).

Native American Police Officers and Agencies

     Tribal police officer responding to a domestic dispute between two non-Indians at a casino on tribal land was not engaged in enforcing federal law, and therefore he and his police chief could not pursue their claim for indemnification for claims of assault and battery against them under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(h). The federal government has not waived its sovereign immunity against indemnification claims in such circumstances. Herbert v. U.S., No. 05-30223, 438 F.3d 483 (5th Cir. 2006).

Police Plaintiff: Assault and Battery

     In a police officer's lawsuit for assault and battery against the sister of an arrestee, the sister was not barred from claiming that her actions did not constitute civil assault by her prior guilty plea to a misdemeanor crime of resisting arrest. Her "ambiguous" plea admitting to a "struggle" with the officer did not necessarily admit that she had attacked him, as the criminal charge was not criminal assault, so collateral estoppel did not apply. Dougherty v. Weinert, 809 N.Y.S.2d 758 (Sup. App. Term, 1st Dept. 2005).

Public Protection: Disturbed/Suicidal Persons

    Police chief and officers were not liable under Ohio state law for failure to prevent man's suicide in the absence of any showing that they acted with a malicious purpose, in bad faith, or in a wanton or reckless manner in responding to reports that he had acted "suspicious" when unsuccessfully attempting to purchase a firearm at a store. In the absence of such a showing, they were entitled to immunity from liability for actions carried out within the scope of their employment under a state statute. Schoenfield v. Navarre, No. L-05-1082, 843 N.E.2d 234 (Ohio App. 2005).

Pursuits: Law Enforcement

     Upholding a jury award against a city in a case where a motorist was injured from a collision with a police cruiser engaged in a high speed pursuit, a Maryland appeals court ruled that a police department order stating that, during such pursuits, officers were required to bring their vehicles to a full stop when they crossed an intersection against traffic control devices was admissible evidence. The court also found that the jury in the case had properly been instructed that the officer was bound by the department order and that it could consider the order when deciding whether the officer acted in a reasonable manner. Baltimore v. Hart, 891 A.2d 1134 (Md. App. 2006).

     Officer was entitled to official immunity under Georgia state law from liability for injuries to three passengers and death of driver in vehicle struck by car fleeing from him during high-speed pursuit. The officer's decision to engage in the chase was discretionary, and there was no evidence that the officer went beyond the scope of that discretion by any wrongful act or any intention to cause harm to the deceased motorist or his passengers. Hanse v. Phillips, No. A05A0955, 623 S.E.2d 746 (Ga. App. 2005).

     Police officer was not liable in a federal civil rights lawsuit for either death of child passenger in vehicle pursued after it fled license checkpoint or injuries to passengers in car struck by pursued vehicle when he was only attempting to seize the driver of the fleeing car, did not know the child was in the pursued vehicle, and the collision was an unintended consequence of the pursuit. Sanders v. City of Union Springs, No. 2:04-cv-757, 405 F. Supp. 2d 1358 (M.D. Ala. 2005).

Search and Seizure: Home/Business

     Even if police officers were "intruding" into the curtilage of the suspect's home by speaking to his mother and brother on the home's porch, and even if they were trespassing by staying after the brother asked them to leave, this did not constitute an illegal search. The suspect's expectations of privacy were "minimal" when his mother and brother voluntarily talked to the officers while standing in front of an open door. Murphy v. Gardner, No. 02CV01918, 413 F. Supp. 2d 1156 (D. Colo. 2006).

Search and Seizure: Vehicle

     Officers had a reasonable articulable suspicion of criminal conduct sufficient to stop and search suspect's truck, based on information from a confidential informant and other information suggesting that the suspect and an accomplice were buying decongestant tablets containing pseudoephedrine in large quantities to use for the manufacture of methamphetamine. Officers had probable cause to make an arrest after discovery of a large quantity of syringes and needles, including one used needle, and a bag containing 11 boxes of pseudoephedrine tablets. Kilgore v. City of Stroud, No. 04-6273, 158 Fed. Appx. 944 (10th Cir. 2005).

     Officer's stop of a motorist's vehicle was based on reasonable suspicion that the vehicle matched the description of a getaway car involved in an armed bank robbery nearby, so that the investigation, lasting twenty minutes, and involving the handcuffing of the driver while the car trunk and inside were searched did not violate the motorist's Fourth Amendment rights, despite the fact that it turned out that she and her vehicle were not involved in any criminal activity. Lavender v. City of Blue Ash, No. 05-3058, 162 Fed. Appx. 548 (6th Cir. 2006).

State Constitutional Claims

     The constitutional right against unreasonable seizure under the Pennsylvania state Constitution does not provide an arrestee with any greater protect than is provided by the U.S. Constitution's Fourth Amendment, and there is no right, under state law, to recover money damages for an alleged violation of this state constitutional right, so that city and its officers were entitled to summary judgment in arrestee's lawsuit asserting state constitutional claims arising from his arrest. Jones v. City of Philadelphia, 890 A.2d 1188 (Pa. Cmwlth. 2006).

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     Annual Report: U.S. Department of Justice, 2005 Foreign Intelligence Surveillance Act Annual Report. The report states that the U.S. government made 2,074 applications to the Foreign Intelligence Surveillance Court in 2005 for approval to conduct physical or electronic searches. Two of the applications were withdrawn before the court decided whether to approve them, though one of these applications was later resubmitted and approved by the court. The court did not deny any of the applications, but did modify 61 applications before approving them. This is more than the 2004-year total of 1,758 such requests. The report, for the first time, included information about requests for access to business records and issuance of national security letters, stating that 9,254 national security letters were issued for information about 3,501 U.S. persons in 2005. The Justice Department also states that it made 155 applications to the court for access to business records and production of tangible things in 2005, all of which were approved.

     Annual Report: Administration Office of the United States Courts, 2005 Wiretap Report. States that state and federal courts authorized 1,773 interceptions of wire, oral, and electronic communications in 2005, an increased of 4% over intercepts approved in 2004. Federal officials requested 625 intercept applications in 2005, a 14% decrease from those requested in 2004.

     Article: "Deaths During Police Intervention," by Richard Parent, 75 FBI Law Enforcement Bulletin No. 4, pgs. 18-22 (April 2006). "Research has pointed out the importance of recognizing that some methods of less lethal force and body restraint may increase the risk of death." [PDF] [.html]

     Article: "Law Enforcement Response at a Crisis Scene: Protecting Lives and Preserving the Admissibility of Evidence," by Lucy Ann Hoover, 75 FBI Law Enforcement Bulletin No. 4, pgs.25-32 (April 2006). "Officers cannot ignore the restraints placed upon them by the Fourth Amendment when responding to emergency situations." [PDF] [.html]

     National Strategy Plan. A plan released by the White House and Homeland Security Council discusses how the U.S. government would deal with a flu pandemic, and discusses "critical steps" to be taken immediately and in the future to prepare for such a pandemic. (May 3, 2006).

     Report: Department of Homeland Security's Inspector General's report on FEMA's disaster response to Hurricane Katrina. The report states that FEMA should improve its organizational ability, disaster readiness response and planning, and staffing, and states that FEMA currently lacks sufficient plans and staff to adequately respond to catastrophic disasters. (218 pgs. April 14, 2006).

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

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