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Deputy did not use excessive force in restraining and handcuffing man being arrested on domestic battery charges, even though his actions led to an injury to the arrestee, when the man resisted and the incident took place in a crowd at the state fairgrounds in an atmosphere of "hostility" with crowbars and hammers readily available.

     A deputy sheriff in White County, Arkansas responded to a report of a fight at a "demolition derby" being held at the county fairgrounds. He arrived to see an irritated man being restrained by a member of a large crowd that had gathered near the derby pits. The man looked as though he had been in a fight, and when the deputy asked what was going on, the man replied "he hit my mother," who was standing nearby.

     There was a crowd of between one hundred and two hundred people, and the man's mother's nose was "bleeding profusely." The deputy later described the environment as an "atmosphere of hostility" in which weapons such as crowbars and hammers were "readily available." Eventually, after summoning an ambulance, the deputy was told that it was the mother's ex-husband who had allegedly hit her, and he realized that he had a domestic battery situation in his hands.

     The deputy found the ex-husband and, together with other officers, attempted to place him under arrest. The ex-husband subsequently claimed that the deputy threw him onto the hood of a nearby car and pulled his arms up high behind his back in order to handcuff him. The arrestee allegedly told the deputy that he was hurting his arms, but the deputy persisted until the arrestee was handcuffed. The arrestee resisted because his arms were in pain from the handcuffing, and the officers told him to stop resisting. He subsequently claimed that he suffered a torn rotator cuff, requiring surgery, and that he continues to have pain.

     The arrestee's federal civil rights lawsuit for excessive use of force against four officers involved in the incident ended with a verdict in favor of three of the officers, and inability to reach a verdict on the claims against the deputy. The deputy then moved for summary judgment on the basis of qualified immunity, which the trial court denied.

     A federal appeals court reversed, holding that the deputy was entitled to qualified immunity under these circumstances because, even assuming that the plaintiff's version of the incident was true, no constitutional violation occurred, or, in the alternative, a reasonable officer in the position of the deputy could have believed that the force used to accomplish the arrest was reasonable.

     The alleged facts were that the deputy's actions were carried out in an attempt to arrest and handcuff the plaintiff on charges of domestic battery and public intoxication, in a context where the arrestee continued to resist and kept asking why he was being arrested. The encounter also took place in a large crowd of people in an atmosphere of hostility where weapons of opportunity were available, the court noted. Based on all these factors, the court concluded, the deputy did not use excessive force. While the incident apparently did result in injuries to the plaintiff, the court expressed its belief that under the circumstances, the use of force was reasonable in order to "bring a potentially volatile situation under control."

     Even if the force used were found not to be reasonable, however, the court continued, the deputy's actions were not clearly unlawful at the time, and a reasonable officer could have believed them to be reasonable.

     Kenyon v. Edwards, No. 05-3487, 2006 U.S. App. Lexis 22737 (8th Cir.).

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City did not violate convicted child molester's due process rights by barring him from entry or use of municipal park property, facilities, and programs after he was seen looking at others in the park through binoculars, with a camera in his possession. Essentially labeling him as a possible present threat to children, which he claimed was defamatory, was also insufficient to state a federal civil rights claim. The action barring him, additionally, was rationally related to a legitimate governmental interest in protecting children.

     The City of Michigan City, Indiana banned a man previously convicted of a child molestation offense from entering a municipal park. He had been observed in the park, sitting in his van, observing other park patrons, possibly including children, through a pair of binoculars, with a camera in his possession. After city officials learned of his past sex offense conviction, he was given notice by a police officer of a hearing to be held by the city's Department of Parks and Recreation, at which a vote was taken to bar him from further entry into or use of park facilities or programs. He did not attend the hearing.

     He filed a federal civil rights lawsuit claiming that these actions violated his rights to procedural and substantive due process as guaranteed by the 14th Amendment, and further that the action defamed him. A federal trial court granted summary judgment in favor of the city, and a federal appeals court has upheld that result.

     While ordinarily, city residents are allowed to use the municipal park, facilities, and programs for free with a resident pass, the appeals court found that the plaintiff did not have a constitutionally protected property interest in his park pass. Accordingly, it did not violate his constitutional rights to bar him from the park under these circumstances.

     The appeals court also ruled that any "defamation" by the city or its personnel implied by labeling him a possible danger to children in the park and therefore barring him from the premises was not combined with any change in his "legal status," and therefore could not be a basis for a federal civil rights claim. Mere defamation by governmental employees, the court noted, even if stigmatizing, is insufficient for a civil rights claim.

     Most importantly, even to the extent that it could be found that banning him from the park infringed on any of his constitutional rights, the appeals court reasoned, the imposition of the ban was rationally related to a legitimate government purpose of protecting children, who are, to some extent, under the care of the city while using municipal property and facilities, and this justified whatever slight infringement of the plaintiff's rights might have occurred, particularly as the right to enter a public park was not a fundamental right.

     To the extent that the plaintiff was entitled to any "due process" in connection with the city's action, he received all the process that he was due by receiving advance notice of the meeting at which the ban on him was to be voted on. Had he chosen to attend, he would have also received an opportunity to be heard.

     The court rejected his argument that he was treated unfairly, because the only other individual the city had banned from its parks had been observed in public with his hands in his pants while watching a female high school volleyball team, whereas he was not observed doing anything as threatening. The court found that it was legitimate to treat him more harshly on the basis of his existing prior child molestation conviction. Further, while the park district's vote specifically barred the plaintiff from using the park, the rule adopted also appeared to have barred all other persons convicted of similar child molestation offenses.

     Brown v. Michigan City, Indiana, No. 05-3912, 2006 U.S. App. Lexis 22567 (7th Cir.).

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New York high court rules that officers who allegedly failed to remove weapons from home when called to the scene of a domestic dispute were not liable for estranged husband's action, after they left, of shooting and injuring wife before killing himself with the same gun. Without a "special relationship" imposing a duty to provide protection, officers "cannot be expected to predict and prevent irrational behavior."

     The New York Court of Appeals, the highest court in the state, upheld a ruling of an intermediate appellate court that a town was not liable for injuries a woman suffered when her estranged husband, who she was divorcing, shot her just before he committed suicide with the same gun. While she claimed that the town and its police should have protected her against these injuries, the court found that she failed to show either the breach of a special duty to provide police protection to her as an individual, or that the defendants breached a duty they voluntarily assumed to provide her with protection.

     In the absence of proof of a "special relationship," the court commented, police, in dealing with domestic quarrels, "cannot be expected to predict and prevent irrational behavior."

     At the time of the incident, the woman and her husband, and their two children, were still living together, although the couple was in the process of getting a divorce. When police officers responded to the wife's phone call complaining of a domestic dispute, she told them that she and her husband both owned weapons and that she wanted them to remove them. She later claimed that the officers did not do so, but instead "ordered" her and her husband to remove the weapons and take them to relatives' homes for safekeeping.

     After the officers left, the husband shot and injured the wife, and then shot and killed himself.

     There was no special relationship imposing a duty to protect the wife, according to the intermediate appellate court, because the officers made no promises of aid and protection, or that they would take any further action. The court also rejected the argument that the officers' refusal to remove the weapons from the residence constituted the assumption of some kind of affirmative duty to act.

     Further, even assuming, for the purposes of argument, that the police "ordered" the plaintiff and her husband to themselves remove the weapons from the home, the intermediate appellate court stated, this could not be the basis for liability for negligence. "It is well established that a municipality cannot be held liable for the discretionary acts of its employees - even if performed negligently" in the absence of a special relationship between the plaintiff and the municipality.

     Halpin v. Town of Lancaster, No. 167 SSM 26, 2006 N.Y. Lexis 2551.

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Failure to give jury explicit instructions on the legal rules for use of deadly force required a new trial in lawsuit against officers who shot and maced a bank robber while trying to arrest him. Robber claimed that he was "peacefully surrendering" when he was shot, and an instruction concerning the general test for excessive use of force failed to alert jury as to whether the use of deadly force was allowed under such circumstances.

     Police officers in Hazelwood, Missouri, police shot and maced a man several times while trying to arrest him for a bank robbery. The arrestee sued three officers for alleged excessive use of force, claiming that he was "peacefully surrendering" to them when he was shot. In subsequent litigation, it was held that the officers were not entitled to qualified immunity, because their use of force would have been excessive if the plaintiff had actually been peacefully surrendering at the time.

     After a trial, a jury returned a verdict in favor of the defendant officers. On appeal, a federal appeals court upheld this result as to one of the officers, but reversed it as to the other two officers.

     The plaintiff had asked for instructions to the jury on deadly force which would read, "While the use of 'force' is reasonable under the Fourth Amendment if it would seem justified to a reasonable police officer in light of the surrounding circumstances, the use of 'deadly force' is only justified if the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others."

     The trial judge refused to give that instruction, and instead gave a general instruction about the use of excessive force, which stated in relevant part, that the jury:

"In determining whether such force was 'not reasonably necessary,' you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used such force under similar circumstances."

     The plaintiff argued on appeal that the trial judge erred in refusing to give his proposed instructions on deadly force to the jury. The appeals court agreed, as to two of the officers who clearly used deadly force in shooting the plaintiff. It noted that the only question at trial was if they acted reasonably in doing so. The instruction given, while accurate in general as to the determination of when force is excessive, failed to specifically address the constitutional circumstances in which deadly force may be used by police.

The use of deadly force to subdue a suspect is a seizure under the fourth amendment. A police officer may constitutionally employ such force only when "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." This standard is more detailed and demanding than the one that governs excessive-force claims not including deadly force.

     The appeals court expressed its fear that giving only the more general excessive force instruction might mislead a jury as to what is permissible under the law. It noted that "one can easily imagine a jury, having been given only the general standard," concluded that an officer was "objectively reasonable" in shooting a fleeing suspect who posed no threat to the officer or others," which is contrary to the law on the use of deadly force, authorizing such force only when a suspect poses a threat of death or serious bodily injury to others.

     "Jury instructions that discuss only excessive force in only a general way do not adequately inform a jury about when a police officer may use deadly force," the court stated. When the evidence at trial shows a use of deadly force, the court ruled, the trial court has to instruct the jury on the "more exacting standard" applicable to such use.

     Because the jury was not properly instructed on the legal standard for the use of deadly force, the claims against two of the officers were reinstated for further proceedings. There was no evidence that the third officer used deadly force against the plaintiff, so that the instructions given about excessive force in general were adequate to guide the jury in resolving claims against him.

     Rahn v. Hawkins, No. 05-3329, 2006 U.S. App. Lexis 24037 (8th Cir.).

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Evidence supported jury verdict that a series of traffic stops, equipment compliance citations, and a vehicle impoundment were carried out against a California man to unlawfully retaliate against him for his protected free speech activity of complaining about a California Highway Patrol officer to his department. Federal appeals court upholds award of $500,000 in compensatory damages, but rules that punitive damage awards of $4 million were excessive and must be substantially reduced. Plaintiff also receives $800,000 in attorneys' fees.

     A California man who was a classic car enthusiast and regularly attended car shows in his older El Camino vehicle complained to the California Highway Patrol (CHP) that one local CHP officer was violating the law because he had removed the catalytic converter from his private vehicle, but was citing other drivers for this same violation. He reported that the officer said that he did not need a catalytic converter "because he had a badge." He subsequently sued several CHP officers who allegedly engaged in a series of actions against him in retaliation for these and other complaints.

     A jury found that the officer that the plaintiff had complained about and a sergeant wrongfully retaliated against the plaintiff for his reports to CHP management, and that this sergeant and another sergeant were also liable for retaliation based on their positions as the officer's supervisors. The jury awarded $210,000 in economic damages, $290,000 in non-economic damages, $3 million in punitive damages against the officer, and approximately $1 million in punitive damages against one of the sergeants. The trial court also awarded the plaintiff $800,000 in attorneys' fees.

     A federal appeals court upheld the finding of liability, the compensatory damage awards, and the award of attorneys' fees, but ordered further proceedings on the issue of punitive damages, finding the awards excessive.

     The court found that the defendants engaged in or authorized a series of law enforcement actions against the plaintiff, including traffic stops, equipment compliance citations, and a vehicle impoundment carried out in an irregular manner, to retaliate against him after he complained to CHP management about the officer. The officer kept stopping the plaintiff for certain purported vehicle equipment violations even after a court dismissed those violations and the officer knew that the plaintiff had corrected any problems on the vehicle in question.

     The appeals court rejected the argument that liability was barred based on Hartman v. Moore, 126 S. Ct. 1695 (2006) because the plaintiff did not prove that the officers lacked probable cause when they participated in the law enforcement contacts forming the basis for the civil rights claims. Hartman, the appeals court found, was not applicable to most of the plaintiff's claims because the claims were not brought on a "retaliatory prosecution" theory, and the claimed damages did not result from criminal charges pursued by a prosecuting agency, but from the stops themselves, including stops of the plaintiff's business delivery trucks.

     The $3 million and $1 million punitive damage awards, however, were found to be awards that would "indisputably result" in the defendants' "financial ruin," a circumstance prohibited by state and federal law, and the court found that the jury was not given proper guidance on the relevance of evidence concerning the financial condition of the defendants on the issue of the amount of punitive damages to impose.

     The appeals court ruled that either the punitive damages should be reduced to $35,000 against the officer and $20,000 against the sergeant, or else, at the option of the plaintiff, a new trial be conducted on the proper amount of punitive damages. The appeals court also eliminated $25,000 from an award of costs.

     Grassilli v. Barr, No. D044931, 2006 Cal. App. Lexis 1384 (Cal. 4th App. Dist.).

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Off-duty police officer, in full uniform, acted under color of law while acting as a security guard at a ballpark, and placing patron under arrest after he refused to cease heckling one of the ball players. Trial court improperly granted qualified immunity to officer, and there were factual issues as to whether he had probable grounds for an arrest, whether the arrest violated the arrestee's free speech rights, and whether the officer used excessive force in ejecting him from the stadium.

     A man and several of his friends attending a Cleveland Indians baseball game loudly cheered for some players and heckled others. An off-duty Cleveland police officer, working for the ballpark as a security guard while dressed in his full police uniform, allegedly heard the man using "profane" language, and asked him to either halt his behavior or leave the stadium.

     When the man did not comply, the officer placed him in the "escort position" and started leading him out of the bleachers. In the course of leaving the stadium, the officer arrested the man for disorderly conduct and resisting arrest, and wrestled him to the ground. He was subsequently convicted of these charges, but his convictions were overturned on appeal, and he sued the officer for violation of civil rights, including false arrest without probable cause and in violation of his First Amendment rights, and excessive use of force. A federal trial court granted summary judgment for the officer, and, among other things, ruled that he had not acted under color of state law, that his excessive force claim was barred by the statute of limitations, and that the officer was entitled to qualified immunity on the remaining federal civil rights claims.

     A federal appeals court reversed. It found that the trial judge had ruled erroneously on the statute of limitations issue. Because success on the excessive force claim would have implied the invalidity of the underlying criminal conviction for resisting arrest, the court stated, the claim did not accrue until after his conviction for resisting arrest was thrown out on appeal.

     It also found that the defendant had acted under color of state law during the incident, since he was in full uniform, with badge and weapon, asserted his authority as a police officer, and placed the plaintiff under arrest. It was not disputed that the officer was officially "off-duty" at the time, but the court found that the nature of his actions made it clear that he was acting as a police officer, and not just as a security guard. The defendant presented himself as a police officer from the beginning of the encounter.

     The appeals court also ruled that First Amendment protections applied at the ballpark, and that there was a genuine issue of material fact as to whether the officer had arrested the plaintiff in violation of his clearly established free speech rights.

     The officer contended that he heard the arrestee yell, "Branyon, you suck," and "Branyon, you have a fat ass," referring to one of the players, which he interpreted as profane language. Additionally, he suspected that the man may have been intoxicated at the time.

     The appeals court found that the heckling engaged in did not provide the officer with probable cause to arrest the man on the basis of the content of his speech, within the context of what is acceptable in the context of the ballpark, as it did not constitute disorderly conduct, if the facts are considered from the point of view most favorable to the plaintiff. Further, Cleveland's resisting arrest ordinance requires a lawful arrest on the underlying charge (disorderly conduct), in order to sustain a conviction for resisting arrest. The court found, therefore that there was a genuine issue of material fact as to whether the officer had probable cause for the arrest, so that the grant of qualified immunity to the officer on the Fourth Amendment claim was improper.

     The appeals court further found, on the First Amendment claim, that the trial court improperly considered the facts in the light most favorable to the officer rather than to the plaintiff, in granting the officer qualified immunity, specifically that the man's comments disturbed others and were loud and disruptive, causing discomfort among other patrons. The plaintiff contended, however, that he was heckling in a manner similar to other fans at the game, and that he did not use profane language. The court found no evidence in the record that the arrestee's heckling rose to the level of fighting words, especially as the ballplayer who was the subject of the man's comments apparently did not even hear his jeers, and no fans were incited to become violent because of the comments, leading to conclude that the man's statements were protected by the First Amendment.

     As for the issue of resisting arrest and/or excessive use of force, the plaintiff had contended that he merely verbally objected to his arrest, and did not, as the officer contended, pull his arm away physically. This dispute also barred qualified immunity for the defendant officer. The court concluded:

For a baseball fan to make a "federal case" out of being ejected from a game may well strike many as a colossal waste of judicial resources. A jury might well agree. But this is the type of case where the ultimate result is totally dependent on whose version of the facts one believes. Under these circumstances, the grant of summary judgment to the police officer on the basis of qualified immunity is inappropriate.

     Swiecicki v. Delgado, No. 05-4036, 2006 U.S. App. Lexis 23454 (6th Cir.).

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Officers' entry into a home without a warrant or consent was justified by their reasonable belief that there might be a minor inside the residence in need of immediate assistance because of possible alcohol poisoning.

     After an officer arrested a minor for drunk driving, the minor told him that she had been consuming alcohol with another person at a residence. A number of officers then went to the residence to investigation whether additional drinking by minors was occurring. There was no response to a knock on the front door, but officers believed that people were in the house, because they observed lights there go off as they approached. They then went around to the back of the house to try to contact the people inside.

     Three officers went around the house and onto a deck on the back of the house, looking through the windows and sliding glass door into the house. The officers later testified that they then observed a youth inside lying on a coach, with blood on his hands and pants, and they attempted to wake him by shining flashlights in his face and pounding on the window. When he did not respond or even move, they also believed that it was possible he was not breathing. A sergeant contacted by radio told them they should enter the house to check on this youth's well-being.

     They entered a car parked in the driveway, and used a garage door opener found there to enter the home. Two additional officers from another jurisdiction also arrived on the scene and all officers entered the home through the garage without consent or a warrant.

     Inside the home, the officers found three males under the age of 21 and smelled alcohol on all the minors, as well as observing beer cans, some empty and some half full. The youth found lying on the couch, who was one of the minors, did have blood on his hands but did not need medical attention. The minors were given tickets for unlawful possession of alcohol, but charges against two of the minors were dismissed when the trial court ruled that the entry into the home was illegal.

     The minor who lived in the home, as well as his father, filed a federal civil rights lawsuit against all five officers who entered the home, the sergeant who instructed three of them to do so, and a number of other defendants, all based on the claim that the warrantless search of the residence was unconstitutional.

     The trial court held that the state court decision regarding the legality of the search was not binding in federal court, that the officers' actions were constitutional, and that even if they were not, they were entitled to qualified immunity from liability.

     A federal appeals court upheld the dismissal of all claims, on the basis that the facts as allegedly, even interpreted in the light most favorable to the plaintiffs, did not show a violation of constitutional rights.

     The court noted that the officers, based on the information they had, clearly did not violate the Fourth Amendment by ringing the front bell of the house to investigate further. Officers have a right to "knock and talk" for investigative purposes at the entrance to a home. The appeals court ruled that, in circumstances such as those the officers faced, where no answer is received to a knock on the front door, yet they have reason to believe someone is home, they had a right to further attempt to "knock and talk" at the back door of the residence. Their actions in doing so, therefore, did not violate the Plaintiff's Fourth Amendment rights.

     Once the officers observed the young man lying on the couch inside the house with blood on his hands and pants, and who appeared to not be breathing, they had information sufficient to provide them with a reasonable belief that a medical emergency existed. The Fourth Amendment does not bar officers from making warrantless entries and searches when they reasonably believe that a person inside a home is in need of immediate aid, the court stated. In this instance, given the information that at least one minor had been drinking in the residence, they could suspect that the youth on the couch might have been suffering from alcohol poisoning. This was a sufficient basis for entry into the home without consent or a warrant.

     Under these circumstances, there was no constitutional violation.

     Hardesty v. Hamburg Township, No. 05-1346, 2006 U.S. App. Lexis 22441 (6th Cir.).

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Tennessee Highway Patrol officers were entitled to qualified immunity for stopping a vehicle containing three family members, based on mistaken dispatches giving them reason to believe that the occupants had been involved in a robbery. Appeals court reinstates, however, father's excessive force claim against two troopers who allegedly tackled him and threw him to the pavement face first while handcuffed when he reacted "with horror" to the shooting and killing of a family dog which ran out of the vehicle.

     A married couple and their teenage son sued five members of the Tennessee Highway Patrol (THP), after three of its troopers pulled over their car in the mistaken belief that the three vehicle occupants were the perpetrators of a robbery, challenging the stop, and the manner in which it was carried out.

     Because the troopers decided to conduct a "felony stop" of the vehicle, the family members were allegedly removed from their car at gunpoint, handcuffed, and separately placed in the back of three squad cars. One of them also sustained a knee injury when he was forcibly restrained after the family's dog, which was in the car, was shot to death by a local police officer on the scene.

     A federal appeals court found that the defendant officers were entitled to qualified immunity on all federal civil rights claims, except the injured man's claim of excessive force against two THP troopers.

     The family was traveling home to the Carolinas after spending New Year's Eve in Nashville, Tennessee. Two young dogs were in the vehicle. When they stopped at a gas station to refill the tank, the father accidentally left his wallet on the roof of the car before driving off. Another motorist subsequently reported seeing the car, with "money flying all over the interstate," coming from the wallet.

     Troopers who investigated reported to a dispatcher that they found a lot of loose currency, which turned out to total $445. The amount, however, was not told to the dispatcher, and a teletype was sent to law enforcement in the area, inquiring if a "recent robbery" had occurred, possibly involving a green station wagon like the one the family was driving.

     A "be on the lookout" (BOLO) notification was sent out for the vehicle, stating that it had been seen traveling at a high rate of speed, and had lost a "large amount of money." Another THP dispatcher issued a second BOLO stating that the vehicle was possibly involved in a robbery, having misread the earlier teletype inquiring about any recent robberies, which he took to mean that the station wagon was involved in a "possible robbery."

     The vehicle was subsequently spotted and stopped, and the detentions and investigation ensued. The family members allegedly asked the troopers several times to please shut the doors of the vehicle so that their dogs would not escape onto the highway. One of the dogs, however, jumped from the open passenger side door after the driver's side door was closed. A local police officer on the scene then placed himself in the dog's path and killed him with a shotgun.

     At that point, the husband/father, who was handcuffed, jumped up and was then restrained by two troopers who wrestled him back to the ground, badly injuring his knee in the process. When it was determined that no robberies had been reported and that the driver was not wanted for any crimes, the troopers decided that a mistake had been made, but the last of the handcuffs were allegedly not taken off until nine minutes later.

     The entire incident lasted 29 minutes, but the plaintiffs claimed that the troopers knew it was a mistake within the first ten minutes.

     While the miscommunication was unfortunate, the appeals court found, the stop and seizure was based on reasonable suspicion, based on the totality of the circumstances. A motorist had reported a green station wagon traveling at a very high rate of speed on the Interstate with money apparently flying out of the vehicle, and a significant quantity of cash was found on the scene. The dispatchers did not have sufficient reason to believe that a robbery had occurred, as none had been reported. But the troopers believed that a robbery had been reported, and could reasonably suspect that the vehicle they stopped was suspected of involvement.

     The seizure, however, and the manner in which it was carried out, violated the family's Fourth Amendment rights, because it became an arrest without probable cause. The troopers, even if they initially had a reasonable basis to believe that the family was armed and dangerous, should have been able to dispel those suspicions "much more quickly," and this, combined with the guns pointed at them, the refusal to comply with their pleas to shut the vehicle doors to protect the dogs, and the prolonged detention in separate police cruisers indicated that the troopers did not use the least intrusive means necessary to conduct a preliminary investigation of a "possible robbery."

     The appeals court found, however, that the troopers were still entitled to qualified immunity, as prior caselaw had "endorsed the use of guns and handcuffs during a felony stop, even if only as part of an investigatory seizure." While the use of guns and handcuffs in this case, the appeals court stated, was "unreasonably intrusive, prior decisions had not made this clear."

      As for the additional nine minutes that family members were kept in handcuffs after the troopers arguably knew it was all a mistake, the court stated:

...the THP troopers were still in the process of sorting out the disconnect between why they had pulled over the Smoaks in the first place and the new information received from the dispatchers. The Smoaks were also justifiably agitated and upset over the loss of their dog, and the troopers wanted to diffuse the situation. In this confusing factual scenario, we believe that the few extra minutes that the troopers took to release the Smoaks was not so unreasonable as to deny them the protection of qualified immunity.

     The appeals court did find that the husband/father's claim against two troopers for alleged excessive use of force when he reacted to the shooting of his dog should go forward. The court found that man was handcuffed, generally compliant, and "obviously reacting in horror" to the shooting. The court found that the law was clearly established that, in this situation, tackling him in the manner he alleged--knocking his legs out from under him, and throwing him to the pavement face first, would not have been a reasonable way to restrain him. Further proceedings were required to resolve factual disputes over what actually happened.

     The appeals court rejected claims against two THP dispatchers. They were neither supervisory officers, nor were they present at the scene. They could not be held liable, under these circumstances, the court held, for their negligent transmissions or their failure to ascertain more details before sending out BOLOs mentioning a possible robbery. Additionally, in most contexts, negligence is insufficient to support federal civil rights claims.

     Smoak v. Hall, No. 05-6511, 460 F.3d 768 (6th Cir. 2006).

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Assault and Battery: Handcuffs

     Mississippi police officer did not act in a reckless manner in failing to adjust handcuffs on an arrestee who complained that the cuffs were too tight. He could not, therefore, be held liable for the arrestee's subsequent injuries under state law. Bradley v. McAllister, No. 2004-CA-01657, 929 So. 2d 377 (Miss. App. 2006).

     Detective did not use excessive force in applying handcuffs to detainee when the detainee failed to complain that they were too tight. Robbins v. Lappin, No. 05-2569, 170 Fed. Appx. 962 (7th Cir. 2006).

Defenses: Eleventh Amendment Immunity

     In a civil rights lawsuit brought by an arrestee who was involuntarily committed to a mental hospital, a city Board of Police Commissioners was not entitled to Eleventh Amendment immunity because it was a local governmental entity and not an arm of the State of Missouri. Thomas v. St. Louis Board of Police Commissioners, No. 05-2655, 447 Fed. 3rd 1082 (8th Cir. 2006).

     Puerto Rico Police Department and its officers, sued in their official capacity, were entitled to Eleventh Amendment immunity as the equivalent of a state in a federal civil rights lawsuit brought by individuals who claimed that they were assaulted by officers assigned to their neighborhood because of drug activity there. Nieves Cruz v. Commonwealth of Puerto Rico, No. CIV. 05-1064, 425 F. Supp. 2d 188 (D. Puerto Rico 2006).

Defenses: Improper Defendant

     Lawsuit by motorist injured in car accident involving sheriff's deputy was properly dismissed when the plaintiff failed to name the county as a defendant. The sheriff's department was not, under Mississippi state law, a "political subdivision" that could be named as a defendant in the lawsuit. Brown v. Thompson, No. 2004-CA-01703, 927 So. 2d 733 (Miss. 2006).

Defenses: Statute of Limitations

     While claims for false arrest, illegal search and excessive force accrued, for purposes of an Illinois statute of limitations, on the date of the arrest, the arrestee's claim for malicious prosecution did not accrue until the charges against him were dropped. Foryoh v. Hannah-Porter, No. 05 C 2975, 428 F. Supp. 2d 816 (N.D. Ill. 2006).

Dogs

     Officer did not act unreasonably during plaintiff's arrest by shooting and killing his pit bull. Evidence showed that witnesses saw the dog growling, being aggressive, and advancing towards the officer, justifying the officer's actions. Chambers v. Doe, No. Civ. 04-415, 2006 U.S.Dist. Lexis 69965 (D. Del. 2006).

False Arrest/Imprisonment: No Warrant

     Officer had probable cause to arrest store customer for shoplifting after two store security guards both stated that they had individually seen the customer conceal merchandise in the store, and when one of them swore out a criminal complaint. Prowisor v. Bon-Ton, Inc., No. 05 Civ. 0166, 426 F. Supp. 2d 165 (S.D.N.Y. 2006).

Family Relationships

     Police officers and social workers were entitled to summary judgment in a lawsuit over their removal of the plaintiffs' children from their home without prior notice or hearing when they had reasonable suspicion that the children either had been subject to abuse, or that there was an imminent peril of that happening. Arredondo v. Locklear, No. 05-2237, 2006 U.S. App. Lexis 23191 (10th Cir.).

First Amendment

     City ordinances governing expression in school zones and regulation of "parades" were unconstitutional time, place, and manner regulations when used to threaten the ability of anti-abortion demonstrators to peacefully engage in protests near an abortion clinic. Knowles v. City of Waco, No. 05-50598, 2006 U.S. App. Lexis 21691 (5th Cir.).

Federal Tort Claims Act

     Wife could not pursue her claim under the Federal Tort Claims Act against the U.S. government for the death of her husband, allegedly murdered by FBI informants, since she failed to exhaust her available administrative remedies before filing her lawsuit. Barrett v. U.S., No. 05-1905, 2006 U.S. App. Lexis 22745 (1st Cir.).

Firearms Related: Intentional Use

     In a lawsuit over the fatal shooting of a suspect by an undercover police officer, the officer was not entitled to qualified immunity because of issues of fact as to whether, at the time of the shooting, he reasonably believed that the suspect was armed and would try to shoot him. The issue was not whether or not the suspect was actually armed, but what the officer reasonably believed. Bouggess v. Mattingly, No. Civ.A. 3:04CV-180, 426 F. Supp. 2d 601 (W.D.Ky. 2006).

Freedom of Information

     Dismissal of Freedom of Information Act lawsuit by an author, asking for the release of four audiotapes made over 25 years before during an investigation by the FBI of corruption in Louisiana was improper when based on the alleged privacy interests of two individuals heard speaking on the tapes. The court noted that the FBI failed to make reasonable attempts to determine whether those two individuals were living or dead, and that if they were dead, the privacy exemption from disclosure would not apply. "Surely, in the Internet age," the court stated, "a 'reasonable alternative' for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person's death." Davis v. U.S. Dept. of Justice, No. 04-5406, 460 F.3d 92 (D.C. Cir. 2006).

     In a Freedom of Information Act request, material which could be withheld from the materials released included the names and contact information for law enforcement personnel involved in a bank fraud investigation, the name of a bank employees, and the name and fax number of certain FBI employees who handled reports of suspicious activity filed by the bank. Voinche v. FBI, No. 04-1824, 425 F. Supp. 2d 134 (D.D.C. 2006).

Governmental Liability: Training

     An arrestee who was later discovered to have suffered a stroke following his arrest for driving while intoxicated failed to adequately state a claim for inadequate training against the county which employed the officers involved in his arrest. He merely made "conclusory" statements that the training was inadequate, without showing how it caused his alleged injuries. Aguilera v. County of Nassau, No. 05CV4002, 425 F. Supp. 2d 320 (E.D.N.Y. 2006).

Malicious Prosecution

     County environmental health employees were entitled to summary judgment in malicious prosecution lawsuit when the county prosecutor made the decision to prosecute the plaintiffs. Additionally, the prosecutor's subsequent decision to dismiss the charges did not qualify as a favorable termination of the case in favor of the plaintiffs. Ayala v. KC Environmental Health, No. CV F 02-5846, 426 F. Supp. 2d 1070 (E.D. Cal. 2006).

Negligent or Inadequate Investigation/Failure to Investigate

     Police officer was not liable under Georgia state law for allegedly negligent investigation of fatal accident which resulted in criminal charges initially being made against motorist. The officer was performing a discretionary act entitling him to official immunity when he decided, based on his investigation, that the motorist had been under the influence and driving recklessly, and when he signed an arrest warrant application. Absent any evidence that the officer acted with actual malice towards the motorist, there could be no valid claim. Tant v. Purdue, No. A06A0821, 629 S.E.2d 551 (Ga. App. 2006).

Police Plaintiff: Vehicle Related

     Lawsuit against county for death of school crossing guard employed by county, based in part on county's alleged negligence in failing to timely repair a malfunctioning red light traffic signal was not barred under exclusive remedy provision of the Florida workers' compensation statute. Aravena v. Miami-Dade County, No. SC04-2349, 928 So. 2d 1163 (Fla. 2006).

Procedural: Discovery

     In a wrongful death lawsuit against a police investigator over his shooting and killing of a passenger in a vehicle he stopped, documents in his personnel file concerning his training and job performance were subject to discovery under New York state law. Pickering v. State of New York, 816 N.Y.S.2d 566 (A.D. 2nd Dept. 2006).

Procedural: Evidence

     In arrestee's lawsuit against state trooper for alleged excessive force used against him during the arrest, evidence that the trooper had failed a polygraph test given on unrelated criminal charges brought against him was not admissible as evidence, and evidence of those unrelated criminal charges were also not relevant to the issue of whether the trooper had used excessive force. Jury verdict in favor of trooper upheld on appeal. Cook v. State Dept. of Public Safety, No. 2005 CA 0475, 928 So. 2d 589 (La. App. 2006).

     In a lawsuit by an arrestee claiming that officers used excessive force against him, even if the department's rules establishing procedures for responding to domestic violence calls was relevant in some sense, the trial judge did not abuse his discretion in excluded it from evidence, because it had the potential to confuse or mislead the jury concerning the issues in the case. Ruffin v. City of Boston, No. 03-2102, 146 Fed. Appx. 501 (1st Cir. 2005).

Pursuits: Law Enforcement

     Police officer was not negligent in pursuing a vehicle which subsequently struck another car and injured the driver, but, under a Nebraska state statute, the city was strictly liable for damages suffered under these circumstances. The city, however, was entitled to deduct from its liability the amount of insurance payments received by the injured motorist. McGrath v. City of Omaha, No. S-04-1239, 713 N.W.2d 451 (Neb. 2006).

Search and Seizure: Home/Business

     While officers executing an arrest warrant in a home may perform a protective sweep incident to the arrest in order to protect themselves or others, if they continued searching through the house and garage after the arrest for the purpose of finding more than was in plain view, this would violate the Fourth Amendment. Higdon v. Wells County Sheriff's Office, No. 1:04-CV-064, 426 F. Supp. 2d 854 (N.D. Ind. 2006).

     Officers did not violate the rights of the parents of a shooting victim when they entered the house as part of their investigation of the shooting. Any improper entrance into the premises by third parties during the officers' presence was, at most negligence, which could not be the basis for a federal civil rights claim. Smith v. Busby, No. 04-3544, 172 Fed. Appx. 123 (8th Cir. 2006).

Search and Seizure: Search Warrants

     Search warrant for arrestees' residence was supported by probable cause based on undercover officer's statements that he twice bought cocaine from persons who, after receiving money for the drugs, entered the residence and later returned with the narcotics. Urbanique Production v. City of Montgomery, No. Civ.A.2:03CV1150, 428 F. Supp. 2d 1193 (M.D. Ala. 2006).

     Officers could not be held liable for unlawful search and seizure when they conducted their search of a residence on the basis of a facially valid search warrant. Overholt v. Montville Township, No. 05-3118, 169 Fed. App. 447 (6th Cir. 2006).

Strip Search

     There was not reasonable suspicion sufficient to justify a strip search of a female high school student on the basis of statements by a fellow student that she had heard the student tell others that she had hid drugs in her underpants. There was no indication that the informant student provided reliable information in the past, and no attempt to corroborate the tip. While the student searched had engaged in past misconduct, none of it had involved drug use. Phaneuf v. Fraikin, No. 04-4783, 448 F.3d 591 (2nd Cir. 2006).

     •Return to the Contents menu.

     Education of Personnel: Police Chief Magazine (August 2006). "Distance Learning is Practical—Even for Chiefs. To read how one chief selected and finished an advanced degree through distance learning, click here. "College Education and Policing " Many agencies require a college education as prerequisite for employment. To read about the justifying research and actual department experiences, click here.

     Racial Profiling: "Defending the Racial Profiling Accusation: The Case for the Social Scientist as an Expert Witness," by Brian L. Withrow, Ph.D., 40 The Prosecutor No. 4, pgs. 31-44 (July/Aug 2006), published by the National District Attorneys Association (NDAA). .

     Terrorism, Homeland Security, and National Security Issues: The Senate Judiciary Committee hearings on "Wartime Executive Power and the National Security Agency's Warrantless Surveillance Authority" have been published (908 pages). Access at: http://www.fas.org/irp/congress/2006_hr/nsasurv.html or http://www.fas.org/irp/congress/2006_hr/nsasurv.pdf [PDF]

     Terrorism, Homeland Security, and National Security Issues: National Strategy for Combating Terrorism, released by the White House on September 5, 2006.

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

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