CONTENTS

Officers were not liable for the death of a cocaine-intoxicated man arrested after he engaged in bizarre behavior of continually kicking side door of police station and resisted their attempts to handcuff him. Decedent's estate failed to show either that there were no grounds for the arrest or that anything the officers did constituted excessive use of force.

     One morning, a San Francisco, California police officer, while waiting for a tow truck to remove a stolen car he had located, saw a man across the street begin to kick the side door of the Tenderloin neighborhood police station. The man ignored the officer's demands that he stop doing so, and ignored the officer's questions about what he was doing. The officer pulled the man away from the door, and he began to walk away. As the officer walked back across the street, he heard the man kicking the police station's door again. Because of the man's "odd behavior," and his bloodshot eyes, heavy perspiration, and slurred speech, the officer suspected that he might be intoxicated or under the influence of drugs.

     The officer pulled the man away from the door again and told him that he could be arrested if he did not stop. When the man did not respond, the officer asked to see his identification but obtained no compliance, at which point the officer told the man that he would be placed in handcuffs. The suspect resisted the attempt to handcuff him, and the officer used a bar arm control hold to force the man to the ground and placed a radio call for assistance. Four other officers arrived at the scene, and the officers, still facing resistance, successfully placed him in handcuffs.

     The suspect lay on his stomach for about a minute after being handcuffed and the officers next positioned him so that he lay on his side. Two minutes later, they requested an ambulance when one of them noticed that the arrestee's breathing was heavy and that his eyes were bulging. His breathing them became shallow. The officers called again to ask that the ambulance request be given priority. No attempt was made to perform cardiopulmonary resuscitation (CPR) on the arrestee. When paramedics arrived on the scene ten minutes later, no breathing or pulse was detected and one paramedic observed that the man was on his back. They pronounced him dead on the scene and the coroner concluded that he died of cocaine toxicity.

     The decedent's mother filed a federal civil rights and wrongful death lawsuit against five officers on the scene, two of their supervising officers, and the City and County of San Francisco. Claims were asserted for both excessive use of force and false arrest. The trial court granted summary judgment on all claims to all of the defendants.

     Upholding this result, a federal appeals court found that there was probable cause to arrest the suspect because his behavior and appearance created a "fair probability" that he had committed a crime. There was a fair probability that he was under the influence of a controlled substance, and his behavior warranted a belief on the part of the arresting officer that he had committed other crimes, such as disorderly conduct, vandalism, and disturbing the peace. This was not a case, the court found, where the arrest was made solely on the basis of the failure to produce identification.

     The appeals court also rejected the argument that the officers used excessive force. The suspect was agitated and the control hold was used to facilitate placing him in handcuffs, and he then resisted this lawful use of force, attempting to spin out of the officer's control. The appeals court rejected the plaintiff's arguments that the decedent was the "victim of an unprovoked police attack" or that he "lost his life because he failed to produce his identification." The decedent was resisting arrest, and the medical evidence showed that he died as a result of "cocaine toxicity," rather than the use of force by the police officers.

     Further, while the suspect's crime may not have been "severe," he posed a threat to himself, to the police, and possibly to anyone who passed by. His resistance justified the continued application of the control hold. The actions of the other officers were also found to be reasonable under the circumstances.

     The appeals court found that the officers acted reasonably in positioning the arrestee on his stomach for approximately 90 seconds, during which time he continued to kick and struggle. The record was not found to contain any evidence that any officer applied crushing pressure to his back or neck as he lay prone, and it was also clear that the officers placed him on his side after just over a minute

     The appeals court rejected the argument that the officers' decision not to perform CPR might constitute excessive force.

Just as the Fourth Amendment does not require a police officer to use the least intrusive method of arrest, neither does it require an officer to provide what hindsight reveals to be the most effective medical care for an arrested suspect.

     The officers acted reasonably in promptly summoning emergency medical help when they realized it was needed. The court ruled that the Constitution required them to "do no more."

     In summary, the officers' actions did not deprive the arrestee of a constitutional right. Given that, no claim could be asserted against either the supervising officers or the City and County, since there was no underlying rights violation.

     Tatum v. City & County of San Francisco, No. 04-15055, 2006 U.S. App. Lexis 8011 (9th Cir.).

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Police detective who mistakenly, but reasonably, entered the wrong college dorm room while executing a search warrant during a drug raid was entitled to qualified immunity in student's lawsuit asserting federal and Maryland state claims for unreasonable search and seizure, unreasonable detention, and excessive use of force.

     A University of Maryland, College Park, police detective and other officers, while executing a search warrant in a dormitory during a multi-room drug raid, mistakenly entered the wrong room and briefly detained the residents of that room. Once the mistake was realized, the officers immediately released them and left the room. One of the residents later filed a lawsuit against the detective for alleged violation of his Fourth Amendment right to be free from unreasonable search and seizure, unlawful arrest and detention, and the use of excessive force, as well as identical claims under Article 26 of the Maryland Declaration of Rights.

      The defendant detective sought summary judgment on both the federal and state claims, arguing that no constitutional violation occurred and that he was entitled to qualified immunity. The trial court denied his motion in an order subsequently vacated by a federal appeals court, which found that there was undisputed evidence which established as a matter of law that the detective acted reasonably and was therefore entitled to qualified immunity.

     The detective, based on information about drug activity on campus obtained search warrants for rooms 5105 and 5110 in a dormitory, and arrest warrants for students residing in rooms 5105 and 5107. The room which the detective and other officers mistakenly entered during their raid on the dorm was room 5108, which the plaintiff lived in with his roommate. The validity of the warrants was not at issue, and the plaintiff and his roommate were not suspected of any wrongdoing.

     The numbers for the rooms were evidently not actually on the doors, but instead located on the wall to the upper left of each doorway. When the detective viewed the number 5110, he mistakenly associated it with the door to room 5108, which was next door. The number 5110 was between rooms 5108 and 5110, but is closer to the door for room 5110. The detective, before entering, believed that room 5108 was actually room 5110.

     The detective knocked and announced his presence and purpose, and drew his weapon, and the student opened the door to find the detective's firearm pointed at him. The detective and one or more armed officers entered, ordered the student and his roommate to get on the floor, and handcuffed them. The detective shortly thereafter realized that something was wrong, and went to the hall to again check the room number and discovered that they had entered the wrong room. He informed the other officers, and they unhandcuffed the plaintiff and his roommate, and went next door to the actual room 5110 to execute the warrant. The entire incident, according to the appeals court, took one to two minutes.

     The officers "pushed or shoved" some of the student's belongings, but did not physically search him, his roommate, or the room itself. The plaintiff allegedly scored poorly on an examination the next morning and received a poor grade for the course, and claims that he was subsequently diagnosed as suffering from post-traumatic stress disorder.

     The federal appeals court found that, under these circumstances, and viewing the facts in the light most favorable to the plaintiff, the detective could not be said to have violated his rights under either federal or state law.

     The court found that the detective had an undisputedly valid warrant to enter room 5110, which was next door to the plaintiff's room, and simply made an "honest mistake based on his observation and perception of the room number." The officers had information that they could encounter armed resistance.

     Officers under these circumstances must be allowed "some latitude for honest mistakes" made in the "dangerous and difficult process" of making arrests and executing search warrants. Given the reasonable mistake concerning the room entry, the court further found, the other actions, such as the pointing of the gun, and the detention and handcuffing of the occupants, were also reasonable. The court found that there was nothing to support a claim that there was an actual arrest, but that the plaintiff was undisputedly "seized." This seizure, however, was reasonable under the circumstances, as was the level of force used.

     Once the detective entered the plaintiff's room, he was entitled to what the law would have allowed him to do if he had entered the correct room. The detective was therefore entitled to qualified immunity.

     The federal appeals court noted that the highest court in Maryland has generally construed the protections of state law against unreasonable searches and seizures "in conformance with constructions given to the Fourth Amendment by the Supreme Court," and reached identical results on the state law claims.

     Mazuz v. State of MD, No. 05-1463, 2006 U.S. App. Lexis 7660 (4th Cir.).

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Police officers were entitled to arrest suspect on the basis of a couple's statement that he had threatened to kill them with a knife following an auto accident, after a frisk found a knife in his possession on the scene, and they were not required to refrain from arresting him merely because he denied the accusation.

     Chicago police officers were dispatched to a street corner after a 911 call was received reporting that a black man driving a maroon car had pulled a gun near that location. The officers arrived swiftly and found a suspect's maroon car on the median that divides one of the two streets. The suspect, who is black, told the officers that he had no gun, but a frisk turned up a knife. A couple standing on the side of the road then told the officers that the suspect, during a "road-rage" incident, had brandished the knife and threatened to kill them. One of them also accused the suspect of hitting his companion's car, and an argument began.

     The officers took the suspect into custody and charged him with making an armed threat which put the couple in apprehension of a battery. He was released the next morning, and the charges against him were dismissed when the couple failed to appear in court. The arrestee then filed a federal civil rights lawsuit for false arrest against the officers. The trial court granted summary judgment for the defendant officers.

     A federal appeals court upheld this result, finding that the statements made by the couple supplied probable cause for the arrest, and, if true, would have meant that a crime had been committed. The fact that the arrestee denied the couple's assertions did not alter this. "Police need not conduct an investigation but may arrest and let prosecutors and courts determine who is telling the truth."

     This was not a case, the court commented, in which the officers had any reason to doubt the statements of the couple, such as if they believed that the couple had a grudge or some other reason to want to "frame" the suspect. The suspect was, the court further noted, armed with a knife, and his car was stopped in the middle of a thoroughfare, which was itself an offense and a potential reason for arrest.

     The fact that the 911 call had mentioned a gun, and that the accusation against the arrestee was based on his possession of a knife was not material. The officers had direct statements from the couple who said that the suspect threatened them with a knife, and a knife was found. Additionally, it is possible that someone else had made the 911 call or that the dispatcher had made a mistake, and the plaintiff arrestee failed to obtain a recording of the 911 call to clear this up, which he could have done.

     Officers "often encounter" competing and inconsistent stories, and they are allowed to rely on the statements of alleged victims of crime and leave the "sifting of competing claims and inferences" to detectives, prosecutors, judges, and juries in the criminal prosecution.

     Askew v. City of Chicago, No. 05-2194, 2006 U.S. App. Lexis 6221 (7th Cir.).

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Officers had probable cause to arrest woman of Palestinian descent and Muslim faith at airport three months after September 11th terrorist attacks for disorderly conduct after she stated to an airline employee, "maybe I have a bomb in my purse." An arrest for disorderly conduct was warranted even if no one actually believed she possessed a bomb.

     A 56-year-old female U.S. citizen of Palestinian descent and Muslim faith, three months after the September 11, 2001 terrorist attacks on the World Trade Center and Pentagon received word that her father had died in Israel. She went to the Swissair airline ticket counter at Chicago's O'Hare airport, intending to fly to Tel Aviv by way of Zurich, Switzerland to attend his funeral. She was accompanied to the counter by 19 members of her immediate family and ordered a "Muslim" meal for the flight.

     The ticket clerk took the woman to a bomb-detection machine to have her two pieces of luggage inspected for weapons. Following the inspection, suspecting that this was an instance of discriminatory religious or ethnic profiling, she complained to a Swissair manager who offered to escort her to the gate because the screening was complete. During this exchange, the woman was allegedly screaming and the area was crowded. The woman herself realized that security personnel had not inspected her purse, and did not realize that carry-on bags would be screened at another checkpoint. She was concerned that if the airline later realized that it had not checked the purse, she would be delayed and miss her flight.

    She attempted to point out to the airline employee that her purse had not been inspected, saying, "You already checked my luggage. Maybe I have a bomb in my purse. Nobody has checked that." When the word "bomb" was uttered, an employee working at the nearby counter of another airline began yelling that she had heard the "B-word" and that security would be called. Another manager called the police to report an "unruly" passenger saying "bomb."

    A Chicago police officer arrived in two to three minutes, and was told of the woman's statement. The officer engaged in discussion with the woman, one of her sons, and airline employees. When other officers arrived, the two new officers checked the woman's purse, and one of them placed her under arrest. During the ensuing screaming argument, she claimed, the arresting officer insulted her family and made a "racist reference" to the September 11th attacks. She spent two days in jail before being released on bond, and missed her father's funeral. She was subsequently indicted on a charge of felony disorderly conduct--bomb threat, and acquitted after a bench trial.

     She filed a federal civil rights lawsuit including false arrest and equal protection claims against the city and a number of officers. The trial court granted summary judgment for the defendants on both claims.

     Upholding this result, the appeals court found that there was probable cause for the arrest, based on statements from reasonably credible witnesses that the arrestee had stated "Maybe I have a bomb." Under the circumstances, a prudent person might have believed that the woman committed the crime of making a false bomb threat.

     Under the statute used to charge the arrestee, the court noted, there is no requirement that the bomb threat be "credible" or believed by the listener to be true, so the question of whether airline employees actually believed she had a bomb was not relevant. Likewise, the fact that her statement was "phrased conditionally," and prefaced by the word "maybe" was also irrelevant. Particularly in light of the time and place, an international airport three months after the September 11 attacks, it was reasonable for the officers to believe that the statement constituted disorderly conduct which would create alarm.

     The appeals court further found that, while there was probable cause for the arrest, even if there had not been, the officers would be entitled to qualified immunity for making the arrest under these circumstances.

     Mustafa v. City of Chicago, No. 05-2101, 2006 U.S. App. Lexis 7200 (7th Cir.).

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Deputy sheriff and police officer did not violate the constitutional rights of a mother and her seven-year-old son when they temporarily removed the son from her custody without a court order because they suspected the mother of involvement in narcotics trafficking and being drug intoxicated.

     A minor and his mother brought a federal civil rights lawsuit against the County of Crow Wing, Minnesota and one of its deputies, and the City of Brainerd and one of its officers for temporarily removing the child from his mother's custody when she was suspected of being involved in narcotics trafficking. A federal appeals court has upheld summary judgment for the defendants.

     The deputy, in the course of his work as a narcotics officer, spoke to an inmate at a county jail who told him that his sister, the child's mother, had been trafficking narcotics from the St. Cloud, Minnesota area using Enterprise rental cars. The inmate allegedly gave him a specific address where his sister was living, drew a map of her home, and indicated where she transported drugs. The inmate further stated that he wanted his sister "out of the drug world," and was concerned for her seven-year-old son.

     The deputy subsequently confirmed some of the information provided by the inmate, including her frequent car rental despite already having a mode of transportation. Drug sniffing dogs who walked around rental vehicles that the sister returned indicated that each vehicle contained the scent of narcotics. The sister was also subsequently found in possession of a small amount of marijuana on one occasion and with drug paraphernalia on another occasion, and was issued citations, as well as being questioned by the deputy and a Brainerd police officer.

     The sister denied any involvement with drug trafficking and consented to a search of her home, which did not reveal any drugs. When she returned the next day to retrieve her vehicle, bringing her 7-year-old son with her, she was asked to submit to a urinalysis drug test at a local hospital, while her son remained at the county law enforcement center.

     When she returned from the hospital, she was allegedly told that her son would not be returned to her then, and that it had been determined that it was in the child's best interest to be placed on a 72-hour protective hold. She hired an attorney and filed a petition for a writ of habeas corpus for the return of her son, which was granted. Several days later, her urinalysis test results came back positive for substances found in marijuana and methamphetamine.

     Her subsequent lawsuit asserted claims on behalf of herself and her son for unreasonable search and seizure, violation of due process under the Fourteenth Amendment, and intentional infliction of emotional distress, as well as false imprisonment of the child.

     In upholding summary judgment for the defendants, a federal appeals court acknowledged that a parent has a protected liberty interest in the "care, custody, and management of their children," and that parents and children have a constitutionally protected liberty interest in the care and companionship of each other. This interest, however, as it pertains to family relations is limited by the compelling governmental interest in the protection of minor children, especially in circumstances where the protection is considered necessary against the parents themselves.

     While the circumstances in which a child can be removed from his or her parents' custody without a court order are "extremely limited," in this case, the deputy removed the 7-year-old male child from his mother's custody under a Minneapolis state statute authorizing such immediate custody of a child when an officer finds a child in "surroundings or conditions which endanger the child's health or welfare or which such peace officer reasonably believes will endanger the child's health or welfare."

     In the context of the facts of the case, the court found, there was no violation of the plaintiffs' constitutional rights when the child was temporarily removed from his mother's custody under this statute.

     Prior cases had held that when a state official takes an action that would "otherwise disrupt familial integrity," they are entitled to qualified immunity if they are acting upon a reasonable suspicion of child abuse. The appeals court rejected, however, the argument that this principal was limited to instances of abuse or neglect investigations.

     In this case, at the time the child was removed from his mother's custody, she was under investigation for narcotics trafficking, and she was apparently under the influence of a stimulant when she arrived at the law enforcement center to pick up her car. The deputy, the officer, and a social worker, all of whom were trained to recognize drug use symptoms, all subsequently testified that the mother appeared to be exhibiting behavior consistent with the use of methamphetamine, amphetamine, or "some sort of upper."

     Additionally, the court noted, the mother was asked to take a urinalysis test, which subsequently gave added weight to the defendants' observations. The defendants had evidence to support their suspicions concerning her involvement with narcotics and the fact that no drugs were found during one search of her home did not detract from the reasonableness of their concerns for the child's safety.

     The appeals court found that the "relatively limited intrusion into the familial relationship" of placing the child on a 72-hour protective hold in foster care was not "so disproportionate to the potential risk" to the child's well-being as to constitute a violation of constitutional rights. Since no constitutional violation took place, summary judgment for the defendants was properly granted.

     K.D. v. County of Crow Wing, No. 05-2499, 434 F.3d 1051 (8th Cir. 2006), petition for rehearing and rehearing en banc denied, 2006 U.S. App. Lexis 5117 (8th Cir.)

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City's interpretation and enforcement of noise ordinance to prevent Christian preacher from speaking in downtown pedestrian mall loud enough to be heard 25 feet away violated his First Amendment rights. The mall was a traditional public forum, and the preacher's level of speech was not inappropriate for the circumstances. The ordinances also improperly failed to give clear notice of what was prohibited.

     A New York man claimed that his First and Fourteenth Amendment rights were violated when he was prevented by Ithaca, New York authorities, from preaching in a downtown public pedestrian mall known as the Ithaca Commons, under the purported authority of municipal noise ordinances. A federal trial court granted summary judgment for the defendant city, city attorney, and chief of police. A federal appeals court reversed, ordering the entry of judgment in favor of the plaintiff, finding that the challenged noise ordinances, as interpreted, construed, and enforced by the defendants against the plaintiff could not withstand the test of constitutionality.

     The plaintiff believed that he had a duty as a Christian to preach by speaking in a raised voice to passers-by in public areas such as parks, malls, streets, and sidewalks. With that purpose in mind, he and three of his colleagues visited the Ithaca Commons.

     That mall is a popular gathering place and "hang out" for students from nearby colleges, and also serves as a frequent venue for musical and other performance, and numerous community events which draw thousands of visitors and feature exhibitions, concerts, poetry readings, and dance. It is also a forum for demonstrations and protests including speeches, marches, and open discussions of various topics.

     Shortly after the plaintiff and his friends positioned themselves in the middle of this mall and began preaching, he was approached by a police officer responding to a noise complaint from an employee of a nearby business, the sole person who complained. The officer told the plaintiff that his speech violated the city's noise ordinance because it could be heard from 25 feet away, and told him to keep the volume of his speech lower. He also told that plaintiff that the ordinance applies anywhere in the city.

     The officer went away to get the plaintiff a copy of the ordinance, as he requested. While the officer was away, the plaintiff claimed, he could hear a singing group 200 feet from his location and also hear other people talking who were more than 25 feet away from him, but they were left undisturbed. The plaintiff proceeded to speak at a lower volume, but the officer, when he returned, allegedly told him that even the lower volume violated the ordinance. The officer threatened him with arrest if he spoke so that he could be heard 25 feet away. Subsequent requests made to the city, city attorney, and police chief for permission to speak there in a voice audible at a distance of more than 25 feet were denied, and the plaintiff never returned to the mall, instead filing a federal civil rights lawsuit.

     The federal appeals court ruled that the Commons is a "classic public forum," used routinely for various First Amendment activities. Free speech has its greatest protection in a traditional public forum, but even there, the court acknowledged, there can be reasonable time, place, and manner restrictions.

     In order not to violate the constitution, such restrictions must be content neutral, "narrowly tailored" to serve a significant governmental interest, and permit alternative means of expression. The governmental entity seeking to justify such restrictions has the burden of showing that they meet this test, and are reasonable under the circumstances. While a "silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would," the court commented, while that same speech "should be perfectly appropriate in a park."

     In the immediate case, the issue was whether the manner of expression that the plaintiff wanted to engage in was "basically incompatible with the normal activity of a particular place at a particular time."

     The plaintiff and defendants agreed that the noise ordinances at issue as written restrict the volume of speech and not its content. The defendants argued that the purpose of the ordinances was to avoid excessive, unnecessary, unnatural or unusually loud noises which are prolonged, unusual and unnatural in their time, place, and use and which are "detrimental" to the environment, or annoying or disturbing to others.

     The court noted, however, that the mall, in addition to being a commercial center, is used regularly for festivals, performing events, exhibitions, political demonstrations, and recreational activities. "These," the court reasoned, are not "quiet pursuits that require a quiet atmosphere."

     By interpreting "unreasonable noise," as the defendants did, as sound that "can be heard" 25 feet away, the court found, the ordinances would restrict not only the plaintiff's protected speech, but also the sounds that "typify the Commons and the activities it is meant to facilitate." An expert's report, adopted by the trial court, showed that the sound level of speech that would comply with the 25 foot rule was often lower than the sound level generated by the foot steps of a person in high heeled boots, conversation among several people, the opening and closing of a door, the sounds of a small child playing on the playground, or the ring of a cell phone.

These facts so vividly illustrate that the regulations as applied restrict considerably more than is necessary to eliminate excessive noise that we need hardly say more. Quite simply, a noise regulation that prohibits "most normal human activity," including a spirited conversation by only two people, is not narrowly tailored to serve the City's interest in maintaining a reasonable level of sound, at least in a public forum like the Commons.

     The ordinances therefore, as applied by the defendants, were found to not be narrowly tailored to serve their stated objectives, and the court therefore found it unnecessary to reach the third part of the legal test, whether the restrictions permitted adequate alternative channels for communication.

     The appeals court further noted that the ordinances did not expressly state the "25 foot" rule, but rather prohibit "unreasonable noise," or amplified sound which is loud, annoying or offensive within any building or at a distance of 25 feet or greater. "Nothing in either ordinance indicates that they are to be applied as bright line proscriptions of any sound that can be heard at a distance of 25 feet from its source, anywhere, at any time." They therefore did not provide adequate and fair notice of what was prohibited.

     The appeals court did, however, reject an equal protection claim by the plaintiff, as there was no record of any complaints by anyone concerning others in the mall on the same day as he was there, and there was nothing to indicate whether the singers there may have had a permit under the sound amplification ordinance, and on that basis, may not have been similarly situated.

     Having found that the ordinances, as applied and enforced, violated the plaintiff's First Amendment rights and failed to provide him with fair notice of the conduct they prohibited, the appeals court ordered the entry of judgment for the plaintiff and proceedings to determine and award "the appropriate relief."

     Deegan v. City of Ithaca, No. 04-4708, 2006 U.S. App. Lexis 8372 (2d Cir.).

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Mere failure of police officers interrogating suspect to read Miranda warnings cannot be the basis of a federal civil rights claim for damages even when it results in a confession used at trial to convict suspect of murder of his girlfriend. Suspect's sole remedy was the suppression of his confession, after reversal of his conviction, at his second trial, which still resulted in his conviction for murder.

     A Minnesota man was convicted of murdering his girlfriend. His conviction was later reversed by a decision holding that admission of a confession he had made to two police officers was erroneous because he had made an unequivocal demand for a lawyer during his interrogation by the officers, and had not made a legitimate waiver of the right to counsel. He was later retried and convicted again of the murder, and that conviction was upheld on appeal.

     While he was waiting for the retrial, he filed a federal civil rights lawsuit against the two officers, claiming that they had violated his rights under Miranda v. Arizona, No. 759, 384 U.S. 436 (1966) by failing to cease questioning him after he invoked his right to counsel, and by obtaining statements that were used against him in his first trial. The trial court rejected these claims and granted summary judgment for the officers.

     Upholding this result, a federal appeals court found it unnecessary to decide whether the officers actually violated the Miranda rule during their interrogation, because it agreed with the trial judge that there is no remedy under 42 U.S.C. 1983 for damages based on a violation of Miranda.

     The appeals court stated that the reading of Miranda warnings is a procedural safeguard rather than a right arising out of the Fifth Amendment itself, and the remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a federal civil rights claim.

     The appeals court acknowledged that the U.S. Supreme Court, in Dickerson v. U.S., No. 99-5525, 530 U.S. 428 (2000), stated that Miranda announced a "constitutional rule," but it reasoned that this did not undermine the continuing validity of past precedents that stated that Miranda safeguards are not themselves "constitutional rights" for the violation of which there can be a federal civil rights claim for money damages.

     The appeals court also pointed to the four-Justice plurality in Chavez v. Martinez, No. 01-1444, 538 U.S. 760 (2003) which concluded that a police officer's failure to read Miranda warnings did not violate a suspect's constitutional rights and cannot be grounds for a civil rights lawsuit.

     The plaintiff's only remedy for the alleged violation of the "constitutional rule" of Miranda was suppression of the evidence, which he ultimately obtained in his second criminal trial, which nevertheless resulted in his conviction for murder.

     Hannon v. Sanner, No. 04-2608, 2006 U.S. App. Lexis 7542 (8th Cir.).

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Officer who pursued motorist into crowded downtown area could not be held liable for injuries pedestrian suffered when pursued driver took his car onto the sidewalk. Officer, who did not even exceed the speed limit while following the car, could not be said to have acted in a willful and wanton manner under Illinois law, as required for liability.

     A pedestrian who suffered serious leg injuries in downtown Chicago when he was struck on the sidewalk by a station wagon fleeing from police pursuit sued both the city and the officer driving the police vehicle. The fleeing driver was suspected by the officer of trying to break into a van. At trial, the plaintiff argued that the officer's pursuit of the fleeing driver in the busy downtown area constituted willful and wanton misconduct and caused his injuries.

     The officer, however, testified at trial that he did not "chase" the motorist, but was only engaged in following him in an attempt to identify the driver. The defendant city further argued that the pursued motorist alone caused the plaintiff's injuries by driving onto the sidewalk. The jury agreed and returned a verdict in favor of both the police officer and the city.

     This result was upheld on appeal by an intermediate Illinois appeals court, which stated that it was the fleeing motorist's "own independent decision" to drive onto the sidewalk without any regard for pedestrian safety that caused the plaintiff's injuries. The plaintiff's argument that the officer, in continuing pursuit of the motorist after seeing him run a red light caused his injuries, the court reasoned, was both "illogical" and "against sound public policy."

     The appeals court further ruled that the officer did not act willfully and wantonly because he did not conduct the pursuit in a "reckless" fashion. The court stated that the officer kept at a safe distance from the pursued vehicle, and did not even exceed the speed limit. At the time of the actual incident, the officer was "stuck in traffic" about 20 to 25 cars behind the pursued station wagon when the motorist drove up onto the sidewalk.

If a police officer could be held liable for his honest miscalculation, it would encourage criminals to flee from the police more dangerously, knowing that the more recklessly they drive, the less likely the officer will continue to pursue them due to the risk of a potential civil liability. Considering the evidence in the light most favorable to plaintiff, we conclude that the evidence so overwhelmingly favors defendants that no contrary verdict could stand. Plaintiff simply failed to establish the essential elements of a willful and wanton cause of action.

     Wade v. City of Chicago, No. 1-04-0642, 2006 Ill. App. Lexis 201.

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Police officers did not violate the rights of two Arkansas business owners by seizing electronic machines from their premises which including poker and blackjack games, based on a prosecutor's reasonable, although mistaken, advice that they were illegal under state law. They also were not required to obtain a warrant for the seizure of the machines, which were in plain view inside the businesses.

     Two business owners in Fort Smith, Arkansas both had on their premises a so-called "countertop" machine on which customers could play up to seventy different electronic games. Most of them were apparently not games of chance, but included on the equipment were poker and blackjack games, which did not pay out any winnings.

     The prosecuting attorney for Sebastian County, Arkansas sent letters to the two business owners, as well as to others, telling them that their countertop machines violated state law, and when they did not remove the machines, he asked the local police to investigate. Based on the prosecutor's legal opinion that the machines violated state law, officers seized the machines found at both businesses, and did so without any search warrants.

     In state court proceedings, it was subsequently determined that the machines were, in fact, not illegal under Arkansas law. The two business owners pursued a federal civil rights lawsuit against the city, the prosecutor, and a number of individual police officers. The trial court granted summary judgment to the defendant officers and the city, holding that the officer had probable cause to believe that the countertop machines were contraband. The court further reasoned that because the machines were found in plain view in the businesses, the officers were justified in seizing them without first obtaining a warrant.

     The plaintiffs claimed that the seizure of their machines in this manner violated their Fourth Amendment rights. The federal appeals court found that the prosecutor's interpretation of state law in believing that the machines were illegal was reasonable, even though it was a view that was ultimately rejected by the Arkansas Supreme Court. At the time he stated his view, the Arkansas Supreme Court had not yet ruled on the precise issue of such machines. The prosecutor, the court found, was therefore entitled to qualified immunity from liability.

     The appeals court further held that the machines seized were, indeed, in plain view in the businesses, and the officers had, based on the prosecutor's reasonable, although mistaken, advice and other surrounding circumstances, probable cause to believe that they were illegal. Under these circumstances, no warrant was needed.

     Skokos v. Rhoades, No. 05-2374 2006 U.S. App. Lexis 5962 (8th Cir.).

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

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Owners of family-run convenience food and liquor store failed to show that repeated inspections of their premises either violated their Fourth Amendment rights or their right to equal protection, despite supposed illegitimate motive of driving them out of business so that the property could be purchased for use by a larger retailer.

     The owners of a family-run convenience food and liquor store in Chicago filed a federal civil rights lawsuit accusing city officials of engaging in a scheme to close them down and replace their store with a large retailer such as CVS or Walgreens pharmacies. The plaintiffs claimed that, in pursuit of this scheme, various city departments wrongfully inspected the store multiple times, interfered with its liquor license and refused to sell the vacant lot next to the business to one of the plaintiffs. They claimed that the overall course of conduct violated their Fourteenth Amendment rights to equal protection, and that their Fourth Amendment rights were violated by two of the inspections because the investigator allegedly did not have probable cause to search, a search warrant, or valid consent to search.

     The federal trial court granted summary judgment for the defendants, and a federal appeals court upheld that result.

     The city, at one point, sent the plaintiffs a letter indicating that its Department of Planning and Development intended to take the property by eminent domain as part of a redevelopment project along the street. This was followed by a number of inspections of the store, over the course of two years, as well as of a Chinese restaurant that was also a tenant in the plaintiffs' building. The plaintiffs claim that this was an attempt to cause one or both of the stores to go out of business, so that they would be forced to sell the property at a reduced price, while the city contended that the inspections were only as frequent as necessary to enforce public health standards.

     The inspections included five health department inspections, as well as follow-up inspections after visits where citations were issued, as well as inspections concerning the building code, and an electrical inspection. The appeals court noted that the health inspections, held approximately every six months, were required to be conducted on that schedule by city law, and that follow-ups were also required if violations were found.

     One of the owners of the business himself testified that he consented to a search as part of an electrical inspection, during which the inspector allegedly observed dangerous open electrical boxes. This inspector later returned to the premises along with electric company representatives who believed that there was evidence of theft of electrical service and that unsafe conditions existed, and who turned off the power supply to the store. At some point during these two encounters, the inspector called police and asked them to come there to ensure that the proprietor complied with his order not to allow members of the public inside until the electrical conditions were repaired.

     The plaintiffs also claim that the city improperly failed to issue a permit for the repair of the electrical work, and caused their liquor license to be revoked. The appeals court found that the liquor license commission records, however, indicate that the liquor license was in good standing and had not been revoked, and the plaintiffs conceded that they had continued to sell liquor without interruption.

     The appeals court found that the two electrical inspections were legitimate and based on a citizen complaint, and that this was not refuted by one plaintiff's own testimony that during the search the inspector stated that he intended to shut down the store. The evidence, including one of the proprietor's own statements, showed that this statement was only made after the inspector had observed the electrical violations. The court rejected the argument that the inspector had exceeded the scope of the proprietor's consent by going beyond the bounds of a "legitimate inspection." As there was consent for the search, there was no Fourth Amendment violation. As for the follow-up inspection, which resulted in turning off the electricity, the plaintiffs' very broad claim that this violated their Fourth Amendment rights by shutting down the store was "too broad" to really inform either the court or the opposing parties of the current claim regarding that second electrical inspection, and why the plaintiffs believed it violated their rights.

     The appeals court also rejected the equal protection argument. The plaintiffs failed to show that they were intentionally treated differently from others similarly situated and that there was no rational basis for the treatment, or that the city treated similarly situated individuals differently because of a "totally illegitimate animus" for the plaintiffs. These claims were simply not supported by evidence, the appeals court found.

     Aida Food and Liquor, Inc. v. City of Chicago, No. 05-2059, 439 F.3d 397 (7th Cir.).

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

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Assault and Battery: Physical

     Factual issues as to whether officer had kicked down a motel apartment door, entered, and struck the occupant without an arrest or search warrant barred summary judgment for officer in resident's lawsuit for excessive use of force and unlawful entry. Goins v. City of Detroit, No. 03-CV-74758, 408 F. Supp. 2d 387 (E.D. Mich. 2005).

     Arrestee stated a possible claim for excessive use of force in alleging that he was punched, clubbed, kicked, and slammed into the ground multiple times while handcuffed with his ankles restrained while being arrested for a "non-violent" misdemeanor of unlawful loitering in a public place with intent to engage in narcotics related activity. Phillips v. City of Fairfield, No. CIVS040377, 406 F. Supp. 2d 1101 (E.D. Cal. 2005).

Defenses: Absolute Immunity

     Both prosecutor who decided to pursue murder charges against suspect and investigator who presented testimony to a state grand jury as a complaining witness were entitled to absolute immunity from liability in lawsuit brought by suspect, who spent ten years incarcerated before charges being dismissed following the reversal of the second of his two convictions. Knight v. Poritz, No. 05-1350, 157 Fed. Appx. 481 (3rd Cir. 2005).

Defenses: Collateral Estoppel

     In arrestee's civil rights and false arrest lawsuit, he was barred from arguing that he was not carrying drugs at the time of his arrest when he argued in his appeal of his criminal conviction that the drugs were inadmissible as the fruit of an illegal arrest, since that was inconsistent with the argument that there were no drugs. Griffin v. City of Chicago, No. 05C1571, 406 F. Supp. 2d 938 (N.D. Ill. 2005).

Dogs

     Police officer did not use excessive force by using a dog to subdue an arrestee when the suspect was resisting the officers by kicking and thrashing his legs after having led officers in a car chase and then entered a private residence while under the influence of cocaine, opiates, cannabis and alcohol. Strickland v. Shotts, No. 05-1050, 155 Fed. Appx. 908 (7th Cir. 2005).

False Arrest/Imprisonment: No Warrant

     Probable cause to arrest could be found on the basis of an uncharged offense of trespass, resulting in the defeat of the arrestee's state law claims for false imprisonment, malicious prosecution, and violation of the state constitution. Jackson v. City of Abbeville, No. 4056, 623 S.E.2d 656 (S.C. App. 2005).

     Arrestee's claim that he was arrested without a warrant or probable cause, and that an officer pressured an informant to implicate him in a drug transaction because he knew that he had no other evidence was sufficient to defeat the officer's claimed qualified immunity defense. Chavez v. De La Paz, No. 05-10210, 156 Fed. Appx. 694 (5th Cir. 2005).

False Arrest/Imprisonment: Warrant

     Police detective was entitled to qualified immunity for alleged false arrest of suspect under arrest warrant. The application for the arrest warrant was not so lacking in indicia of probable cause as to make it unreasonable to rely on in making the arrest. The arrestee fit the description of the suspect and the detective learned before the arrest that the arrestee was working at the store at the time of the alleged theft, as well as that another participant in the theft had implicated the arrestee. Byers v. City of Eunice, No. 04-31053, 157 Fed. Appx. 680 (5th Cir. 2005).

     Officer did not violate arrestee's civil rights in obtaining federal arrest warrant based on man's violation of restraining order barring him from obtaining a weapon. At the time he did so, the restraining order appeared to be valid, and the officer could not know that it would ultimately be ruled to have been issued without proper notice. Spruill v. Watson, No. 04-51284, 157 Fed. Appx. 741 (5th Cir. 2005).

     County employees were entitled to absolute immunity for seizing and incarcerating a man under a valid bench warrant issued in a child support arrearage case. Lepre v. Tolerico, No. 04-4179, 156 Fed. Appx. 523 (3rd Cir. 2005).

Federal Tort Claims Act

     In negligence claim brought by driver under Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80, for injuries allegedly suffered during accident involving a car driven by an FBI agent, the driver did not suffer "serious" injury as required for recovery under New York's No-Fault Insurance Law. The driver had pre-existing cervical and spinal damage and permanent injuries already in existence at the time of a car accident did not qualify as "serious injuries" under New York law applicable to FTCA lawsuit. Jones v. U.S., No. CV-04-1276, 408 F. Supp. 2d 107 (E.D.N.Y. 2006).

Firearms Related: Intentional Use

     Police officers who shot arrestee did not use excessive force, since he was armed and had shot at them while they were pursuing him and his flight from arrest ended in a car-jacking during which he put a gun to the head of a motorist and did not obey the officers' orders to halt. Gravely v. Speranza, No. 02-5594, 408 F. Supp. 2d 185 (D.N.J. 2006).

    Deputy did not use excessive force in shooting suspect, even if he was not then armed, when the suspect confronted him again moments after attempting a potentially deadly assault on him, including throwing a U-bolt through the deputy's windshield, a hammer in the deputy's vicinity with enough force to shatter a car window, his advance on the deputy was not stopped by pepper spray, and he had punched the deputy with a pry bar. Hammond v. Smith, No. 04-73410, 408 F. Supp. 2d 425 (E.D. Mich. 2005).

First Amendment

     City ordinance regulating mass gatherings and parades violated the First Amendment when there were no objective standards for determining what traffic control fees were to be paid by parade sponsors, and the ordinance required that applications for parade permits be made 30 days in advance of the event. The court also ruled that the absence of any provision providing for circumstances in which persons were unable to pay the parade application fee rendered the ordinance unconstitutional. Sullivan v. City of Augusta, No. CV-04-32, 406 F. Supp. 2d 92 (D. Maine. 2005).

Governmental Liability: Policy/Custom

     County was not liable for alleged murder of county sheriff-elect by defeated sheriff using department personnel and resources because defeated sheriff was not a final policymaker for the county under Georgia state law. The plaintiff, the widow of the sheriff-elect, therefore could not recover $326,136,398 in compensatory damages from the county. Jury also awarded $450 million in punitive damages against former sheriff, former deputies, and other alleged co-conspirators. Brown v. Dorsey, No. A05A1129, 625 S.E.2d 16 (Ga. App. 2005).

     County sheriff was not responsible for an alleged illegal arrest arising from a fight between deputies and a deputy's neighbors, when there was no claim that the deputies acting on the basis of an official policy or custom. Adcock v. Baca, No. 05-11389, 157 Fed. Appx. 118 (11th Cir. 2005).

Procedural: Pleading

     Federal civil rights lawsuit by arrestee claiming excessive use of force in the use of police dogs to subdue him was properly dismissed without prejudice when the plaintiff used a false name to file his complaint. This prejudiced the defendant police officers by denying them access to any additional information that might be available under the arrestee's true name, and his true name was not disclosed until his testimony at trial. Zocaras v. Castro, No. 03-22034-CIV, 232 F.R.D. 694 (S.D. Fla. 2005).

Positional Asphyxia

     Police officers' use of a vascular neck restraint on an arrestee was not excessive force when the arrestee physically resisted being handcuffed, even though the arrestee died shortly thereafter from positional asphyxia. No evidence showed that the restraint was continued for any extended period, and one of the officers stated that the arrestee had attempted to reach for his gun. The neck restraint used was not considered deadly force. Griffith v. Coburn, No. 04-CV-728, 408 F. Supp. 2d 491 (W.D. Mich. 2005).

Search and Seizure: Home/Business

     Police officers' warrantless entry into apartment was justified by exigent circumstances concerning reported drug overdose and the search conducted was justified by the need to find pill bottles in order to know which drugs had been taken in order to provide medical assistance. Winchester v. Cosaineau, No. 04-CV-00053, 404 F. Supp. 2d 1262 (D. Colo. 2005).

     Officers violated home occupant's constitutional rights when the evidence was sufficient to establish that they continued to detain her after all tasks carried out incident to the search of the residence under a warrant had been completed. Mena v. City of Simi Valley, No. 01-56673, 156 Fed. Appx. 24 (9th Cir. 2005).

     Police officer was entitled to qualified immunity when a reasonable officer could have believed that there were exigent circumstances justifying a search of a house for a suspected murderer in order to protect other innocent persons from further harm. Federal appeals court further rules that officers were entitled to qualified immunity for detention of homeowner in handcuffs for an hour during the search of the residence. Bills v. City of Rialto, No. 03-56212, 157 Fed. Appx. 981 (9th Cir. 2005).

     No exigent circumstances existed to support a warrantless entry into a motel room without consent, so that the arrestee stated a valid claim for violation of his Fourth Amendment rights in alleging that an officer deceived him into opening the door to the room and then forcibly entered the room and arrested him for alleged involvement in the theft of a car. Butler v. Compton, No. 05-1230, 158 Fed. Appx. 108 (10th Cir. 2005).

     Police officers executing search warrant for drugs in house did not violate the Fourth Amendment by ordering a female occupant of the residence out of the shower and watching while she dressed in a robe and other clothes. The court found that the officers did not act unreasonably in light of the fact that the search concerned suspected narcotics distribution and concerns about protecting the safety of other officers by not leaving an individual unsecured. The court also noted that there were no allegations of "inappropriate touching or comments." Skover v. Titchenell, No. 04-71523, 408 F. Supp. 2d 445 (E.D. Mich. 2005).

     A judgment debtor's wife's Fourth Amendment rights were violated if, as she claimed, Deputy U.S. Marshals entered her home and seized her property under an expired writ issued to satisfy a judgment. A reasonable officer would have known that a search and seizure of a resident under an expired writ would not comply with Fourth Amendment requirements. Bernstein v. Roberts, No. Civ.A. 02-133, 405 F. Supp. 2d 34 (D.D.C. 2005).

Towing

     In lawsuit over city's towing of apparently abandoned or junked vehicle from vacant lot, neither the lot owner nor his brother, who claimed he had an ownership interest in the car, had a valid federal civil rights claim. The lot owner's privacy rights were not violated by the towing, and his brother had no identifiable ownership interest in the vehicle which was sufficient to have put the city on notice that he claimed ownership. Benton v. City of Higginsville, No. WD 64861, 181 S.W.3d 190 (Mo. App. 2005).

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     Article: "Dead Right," By Anthony J. Pinizzoto, Edward F. Davis, and Charles E. Miller III, 75 FBI Law Enforcement Bulletin, No. 3, pgs 1-8. (March 2006). "Knowledge, awareness, clear thinking, and finely honed observation skills may give officers an advantage when confronting armed subjects." This article is an excerpt from a 5-year study on officer safety that the authors recently completed. [PDF] [HTML]

     Report: IC3 Internet Crime Report January 1, 2005-December 31, 2005. Prepared by the National White Collar Crime Center (NW3C) and the Federal Bureau of Investigation (FBI). (27 pgs. April 6, 2006). Discusses complaints of computer crime in 2005, including sexual exploitation of children via the internet. The Internet Crime Complaint Center (IC3) is a partnership between NW3C and the FBI. Internet crime prevention tips are available on the IC3 website on auction fraud, counterfeit cashier's checks, credit card fraud, debt elimination, DHL/UPS, employment/business opportunities, escrow services fraud, identity theft, internet extortion, investment fraud, lotteries, Nigerian letter or "419" schemes, phishing/spoofing, ponzi/pyramid schemes, reshipping, spam, and third party receivers of funds. Some of the details of how these schemes work is summarized here.

     Report:  "Stonewalled – still demanding respect: Police abuses against lesbian, gay, bisexual and transgender people in the USA," by Amnesty International. (March 23, 2006).

     Terrorism and Homeland Security Issues: A General Accounting Office (GAO) report states that the U.S. Department of Homeland Security, although making some progress in deploying radiation detection equipment at U.S. ports-of-entry, still needs to do "much" more work to prevent risks of terrorism at U.S. ports. (March 28, 2006).

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

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