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Use of gas gun against demonstrators outside the home where INS agents were executing warrants to remove Cuban boy Elian Gonzalez was objectively reasonable when demonstrators were attempting to interfere and threw objects at the agents.

     On April 22, 2000, federal Immigration and Naturalization Service (INS) agents executed search and administrative warrants authorizing the removal of a Cuban child, Elian Gonzalez from his great-uncle's home in Miami, Florida, for the purpose of returning the child to his father in Cuba, after requests for political asylum were denied. A number of bystanders present during the execution of the warrants subsequently filed a lawsuit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., seeking damages for injuries allegedly caused by the INS agents' use of force during the incident.

     The trial court dismissed some of the plaintiffs' claims for lack of jurisdiction, and ruled that other claims, concerning the use of tear gas during the search lacked merit because the force used was reasonable under the circumstances.

     The plaintiffs were persons who were either on the property at the time of the raid, neighbors who lived near the home, demonstrators in the vicinity, or other bystanders near the property at the time the agents executed the warrants. The lawsuit claimed that a federal agent, using an Israeli gas gun, indiscriminately sprayed gas and "shouted obscenities, pointed guns and/or threatened to shoot, beat, kicked and punched neighborhood residents, passers-by and persons who had assembled" peacefully outside the home. This agent also allegedly sprayed some of them directly in the face at point blank range with the gas gun.

     Some of the plaintiffs, in their administrative claims submitted to the U.S. Department of Justice, asked for $250,000 in damages, while others failed to insert any particular amount of damages sought on their claim forms. The trial court dismissed the claims of those plaintiffs who did not ask for a specific amount of damages on their claim forms, finding that they failed to meet statutory requirements for pursuing a claim in court under the Federal Tort Claims Act. A federal appeals court upheld this ruling.

     As for the majority of the plaintiffs, who had asked for a specific amount of damages, the trial court found that the use of either tear gas or pepper spray under the circumstances was an objectively reasonable use of force and privileged under Florida state law, applicable to the federal agents under the Federal Tort Claims Act. The trial court found that there was undisputed evidence that many protestors sought to interfere with the INS officers' ability to execute the warrants and remove the child from the home, by throwing objects such as a stool, rocks and bottles at the agents.

     The trial court did, however, deny the U.S. government's motion for summary judgment on claims by persons who were allegedly not on the property, were not advancing towards the agents or the property, and who were allegedly gassed at a close range either behind a barricade or on their own property, finding that there was a question of fact as to whether the use of gas against them was objectively reasonable. After a six-day bench trial, however, the trial court entered judgment in favor of the government on their claims too, finding that the use of the gas gun was in response to the demonstrators' threats, and that the agent was 10 to 15 feet away from the demonstrators when he deployed the gun.

     On appeal, the plaintiffs claimed that the trial court erroneously found, as a matter of law, that the agents' use of tear gas was objectively reasonable under the circumstances. They argued that the use of tear gas, rather than pepper spray, under the circumstances, violated the INS's policies and procedures in effect at the time of the execution of the warrants, as well as the INS's Operational Plan, and therefore was not an objectively reasonable use of force.

     The appeals court rejected this argument, finding that, even viewing the facts in the light most favorable to the plaintiffs, and even assuming that tear gas was used, and that the use of tear gas violated the INS's policies, procedures, and plan, the plaintiffs failed to establish that this would support liability under Florida state law.

     The appeals court found that "violating an internal policy or procedure does not create a cause of action under the FTCA against the government unless the challenged conduct" is independently actionable under state law. It noted that the trial judge had found that the agents' use of force under these circumstances was objectively reasonable, and therefore privileged under Florida law.

     The trial court relied on a section of the Florida statutes justifying the use of force by an officer needed to "defend himself or herself or another from bodily harm while making" an arrest, and stating that an officer "need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest."

     The appeals court, based on undisputed facts that the gas gun was used against demonstrators advancing on the property, and a second time when demonstrators were throwing objects at the agents, and refusing to comply with verbal and physical commands, stated its agreement with the trial judge that "such obstruction and interference posed by the demonstrators justified the use of either pepper spray or tear gas and was objectively reasonable under the circumstances."

     The appeals court also rejected the plaintiffs' argument that the trial court erred in finding that the gas gun contained oleoresin capsicum ("OC spray"), or pepper spray, because the parties agreed in a joint pretrial stipulation that the gas gun was filled with 0-chlorobenzalmalononitrile ("CS gas"), or tear gas. The appeals court found that the trial court's finding was supported by testimony presented at trial.

     Dalrymple v. U.S., No. 05-14375, 2006 U.S. App. Lexis 20922 (11th Cir.).

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Keeping an eleven-year-old unarmed boy in handcuffs for 15 minutes, and pointing a gun at his head, while search and arrest warrants were served on his parents' home, if true, could be found to be an excessive use of force. Federal agents were not entitled to qualified immunity.

     IRS special agents prepared a plan to execute search and arrest warrants at the home of a couple suspected of narcotics trafficking and tax-related offenses. The agent who prepared the plan learned that the couple's three children, including then eleven-year-old Ephraim, lived at the home, and that the mother took the children to school each morning. The raid was planned to occur after the children had been taken to school.

     A team of agents arrested the mother without incident after she dropped two of her children off at school. They asked her for the garage door opener to her house, and she asked them to be careful because her eleven-year-old son Ephraim was at home, and her husband had recently suffered a heart attack and undergone major heart surgery.

     The agents at the house were told this information, and they announced their presence over a public address system. Just before that, the eleven-year-old child opened the garage door to take out the trash, unaware of the agents' presence. Barefoot and wearing a t-shirt and shorts, he was allegedly ordered to "turn around and put your hands in the air." Because he didn't understand that the agents were speaking to him, he turned around, and started running back to the house through the garage. He responded to a second command by turning around, and walking out of the garage with his hands up.

     He was ordered to get on the ground, and he lay face down on the driveway. One officer held a gun to his head, searched him, and handcuffed him. The officer pulled him up from behind by the chain of the handcuffs and took him out to the sidewalk, where he sat, still handcuffed, with his feet "in the gutter," until his father was brought out of the house in handcuffs, approximately 15 minutes later. After that, the handcuffs were removed from the child, and he sat on a stool in the driveway, where approximately 15 to 20 officers kept their guns pointed at him.

     The youth claimed that an officer also followed him to the bathroom, keeping his hand on his gun, and would not let him close the door. One of them also allegedly made disparaging remarks about Ethiopia, where the child's parents were from, stating that it was a "f'n ugly country, and there's nothing to see there." When the child asked for his shoes, another officers allegedly threw the shoes on the ground and spat on them. The child was picked up by a relative several hours later.

     A lawsuit on behalf of the child asserted claims for false arrest, assault and battery, and mental distress under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680, as well as violations of his federal and state civil rights. The trial court granted summary judgment for the defendants, finding that the force used was reasonable, and that the Fourth Amendment law governing the agents' conduct under these circumstances was not clearly established, so that the agents were entitled to qualified immunity.

     A three-judge federal appeals court panel disagreed. The opinion found that the facts, as alleged by the plaintiff showed a violation of his constitutional rights, and that, at the time of the incident, a reasonable officer knew or should have known that it was excessive to use the level of force employed and use the handcuffs for the time period alleged against an unarmed eleven-year-old boy when he was not resisting the officers' orders.

     The court further stated that the pointing of a gun at someone may constitute the excessive use of force, even if it does not cause any physical injury. In this case, according to the plaintiff's version of the incident, once the boy realized he was being addressed by the agents, he obeyed their orders, and did not attempt to flee or resist. Although unarmed and dressed only in a t-shirt and shorts, a gun was held to his head, he was searched, and handcuffed, with guns kept on him for ten to fifteen minutes. Once the handcuffs were removed, the officers still kept their guns drawn for another fifteen to twenty minutes. "We conclude under these circumstances that the amount of force used" against the boy was a "very substantial invasion" of his personal security.

     The court stated its conclusion that, under the circumstances, the need for the force, "if any, was minimal at best." Given the fact that over twenty officers were present, and that the boy was not suspected of any crime, and did nothing posing a threat to any of the officers, a jury could properly find that the force used was excessive.

     The court further found that a reasonable officer, under these circumstances, should have known that keeping the boy handcuffed for the length of time involved, and allegedly lifting him from behind by the chain of the handcuffs rendered his detention unreasonable.

     The appeals court, therefore, reversed summary judgment for the defendants on both the civil rights claims and on the Federal Tort Claims Act claims. One of the three judges on the appeals court stated that he agreed that pointing guns at the boy amounted to the use of excessive force under well-established law. Regarding the use of the handcuffs, however, he stated that he would "also reverse," but "more narrowly."

     This judge would reverse the trial court on only one aspect of the use of the handcuffs--lifting the boy to his feet by the handcuffs which were fastened behind him, which he said was a "sadistic bit of bullying" which the defendants had failed to offer any law enforcement purpose for. A reasonable officer, however, this judge found, could believe that the boy, who was between five and six feet tall, could interfere with legitimate law enforcement at the time, by either leaping on the officers or running in front of them as they tried to control his father. Accordingly, this judge believed that it was proper to handcuff the boy until his father was under control.

     Tekle v. U.S., No. 04-55026, 2006 U.S. App. Lexis 20583 (9th Cir.).

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California appeals court upholds jury's rejection of arrestee's argument that use of police dog to find and restrain him was an unreasonable use of force, and trial judge's refusal to give jury instructions on deadly force, since the "use of a trained police dog does not constitute deadly force."

     A California man tried to steal two cars. The first attempt failed when the owner of the vehicle pulled a coil wire, killing the engine, and the second attempt failed when the car owned phoned for help. Shortly after that, a Los Angeles County Sheriff's deputy responded to an attempted robbery and car theft call at a near-by convenience store, and saw the suspect run through an alley, and then climb over a block wall. The deputy positioned himself at one end of the alley, and placed some neighborhood youth at the other end in an attempt to contain the suspect, and called for backup.

     Several other deputies, one being a dog handler, were among those who responded. They learned that the man sought was a car-jacking suspect on parole and that he had a prior weapons-related offense, but they had no information that he was armed or had now injured anyone. They announced, over car loudspeakers and a helicopter that a dog would be deployed. The suspect was then under a car in a carport, hiding from them. Approximately 15 minutes later, they began using a search dog.

     The dog found the suspect in the carport, and was deployed by a deputy into that area attached to a 60-foot leash. As the suspect complied with orders directing him to come out from under the car with his hands in the open, the dog bit his leg. The deputy saw the suspect fighting with the dog, trying to pull its muzzle off of his leg and punching the dog in the head. The dog continued to bite down on the suspect's leg and also bit his hand when he tried to remove the dog by grabbing and pulling on its jaw. Two officers yelled at the suspect to stop fighting the dog, but the suspect kept struggling with the dog, grabbing and twisting its collar, and choking the dog.

     A deputy started striking the suspect with his flashlight to get him to stop fighting the dog. Another officer also hit the suspect once with his flashlight. The officers eventually pulled the dog off. One of the deputies allegedly kicked the suspect's upper body while pulling the dog away, and the two officers ultimately restrained the suspect, handcuffing him. He allegedly lost consciousness and was taken to a medical center, for treatment of his injuries.

     He sued the county and a number of deputies, claiming excessive use of force. Claims against the county were rejected, and a jury found in favor of the individual defendants, deciding that they did not use unreasonable force in making the arrest.

     On appeal, the plaintiff claimed that the trial court improperly refused to instruct the jury with a definition of "deadly force" that included force creating a substantial risk of death or serious bodily injury, and that such force could be used in making an arrest only if the crime committed was a "forcible and atrocious one which threatens death or serious bodily harm." The trial court had reasoned that this was a definition of deadly forced used for defining criminal liability in an assault, and not one which should determine the liability of law enforcement for violation of the Fourth Amendment. Instead, it told the jury to determine whether the force used was "unreasonable," and whether that unreasonable force caused the plaintiff's injuries. The trial court also told the jury that:

Force is not excessive if it is reasonably necessary under the circumstances to make a lawful arrest. In deciding whether force is reasonably necessary or excessive, you should determine what force a reasonable law enforcement officer would have used under the same or similar circumstances. You should consider, among other factors, the following: A. The seriousness of the crime at issue; B. Whether Brett Thompson [the suspect] reasonably appeared to pose an immediate threat to the safety of the deputies or others; and C. Whether Brett Thompson was actively resisting arrest or attempting to avoid arrest. ... The use of a trained police dog to find and bite a fleeing or hiding criminal suspect [constitutes] a police use of force. Whether that force is reasonable or unreasonable depends upon the facts and the circumstances known to the officer at the time the force is used."

     A federal appeals court found no error in the giving of this instruction. It also stated that the "use of a trained police dog does not constitute deadly force. The trial court therefore properly instructed the jury that the use of force in this instance was to be analyzed under the reasonableness standard applied to claims of excessive force." In this case, the court noted, the plaintiff suffered non-life threatening injuries that required medical attention, but which did not show the use of deadly force.

     Additionally, there was no evidence in the case to suggest that the deputies intended to use the dog in an improper manner or that the dog was improperly trained. The evidence instead showed that the bulk of the plaintiff's injuries occurred while he continued to fight the dog, despite the officers' pleas that he stop doing so. Under these circumstances, there was no showing that the use of the dog to locate the plaintiff or to restrain him was deadly force, and no basis for the giving of any jury instructions on deadly force. Instead, the trial court properly told the jury to determine whether the deputies acted reasonably, or whether the force used under the circumstances was excessive.

     The appeals court also upheld a number of evidentiary decisions by the trial court to exclude certain reports that the plaintiff sought to introduce as evidence.

     Thompson v. Co. of Los Angeles, #B174594, 2006 Cal. App. Lexis 1278 (2nd App. Dist. 2006).

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Deputy sheriff was not liable for failing to arrest woman's boyfriend at her residence the night before he beat her to death. Even if he had suspected domestic abuse when summoned to the house, arrest in those circumstances was discretionary rather than mandatory under Kentucky state law, and, additionally, he observed no signs of violence or abuse.

     A federal appeals court has upheld summary judgment for law enforcement defendants in a lawsuit which sought to impose on them liability for the death of a woman beaten to death by her boyfriend. The plaintiff had argued that a deputy sheriff who was summoned to her residence the evening before should have arrested the boyfriend.

     A deputy sheriff employed by Magoffin County, Kentucky responded to a 911 call regarding a possible drug overdose at the woman's residence. When he arrived, the woman, her boyfriend, and up to four emergency medical technicians were inside the house. He spoke to both the woman and her boyfriend individually, and she told him that no violence had occurred. The boyfriend stated that "there wasn't nothing [sic] going on," but expressed concern that his girlfriend had taken some pills.

     The deputy later stated that the woman did not exhibit any physical signs of recent abuse, and that he saw no signs of injury. Two of the EMTs also stated that other than a "little mark" under the woman's eye, there was no visible bruising or marks indicating any injury to her, and that the mark under her eye appeared to be several days old. They all stated the opinion, subsequently, that there were no indications of any fighting at the residence, and that the woman did not complain of any fighting.

     A second deputy arrived on the scene and also did not see any physical injuries on the woman, or other indications of an assault or abuse. The woman had obviously been drinking, but she appeared alert, ultimately refused treatment, and signed a refusal of treatment form, after which the EMTs and deputies left.

     The next morning, an ambulance was again called to the residence, but this time, the woman had to be taken to the hospital immediately. It appeared that she had been physically beaten, and she was unconscious when the ambulance arrived. She died in the hospital several days later, and her boyfriend was convicted of her murder.

     The woman's father, as the executor of her estate, sued one of the deputies for alleged violations of the decedent's Fourth and Fourteenth Amendment civil rights, claiming that he breached duties under Kentucky law to arrest the boyfriend the night before he killed the woman. He also asserted a state law wrongful death claim against the deputy and sued the county sheriff for alleged negligent supervision and training under state law.

     Upholding summary judgment for the defendants, the federal appeals court rejected the argument that the deputy violated the woman's civil rights by failing to arrest her boyfriend. While a law enforcement officer who has reason to suspect domestic violence and abuse is required, under Kentucky law, to use all reasonable means to prevent further abuse, including staying at the location, assisting in obtaining medical assistance or making an arrest for a violation of a protective order, in this case, the deputy did not suspect domestic violence or abuse.

     Additionally, the state statutes relied on by the plaintiff contained no language making an arrest mandatory, even for the violation of a protective order, instead allowing officers discretionary authority to arrest. Accordingly, those statutes could not be shown to have created any protected property interest under the due process clause of the Fourteenth Amendment, the court stated.

     The plaintiff failed to show that any constitutional violation occurred from the deputy's failure to arrest the boyfriend.

     As for the state law wrongful death claim, the appeals court stated, a negligence claim for failure to protect under Kentucky state law is only available when the victim was in state custody or otherwise restrained by the state at the time of the injury, and the conduct causing the injury was "committed by a state actor." The facts alleged by the plaintiff did not fit within those requirements, entitling the defendants to summary judgment.

     Howard v. Bayes, No. 05-5076, 2006 U.S. App. Lexis 20378 (6th Cir.).

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Police officer who allegedly filed a false report resulting in a false arrest could be held liable even if he did not himself carry out the arrest. Additionally, officer's alleged earlier punch to arrestee's face, which immobilized him, could constitute a seizure for purposes of the Fourth Amendment.

     A Chicago man who is both a police officer and an Illinois state representative filed a federal civil rights lawsuit against another Chicago police officer, asserting claims for excessive force and false arrest arising out of a late-night confrontation between the two men at a lot for towed cars. The plaintiff claimed that the other officer punched him in the face, knocking him to the ground, and then filed an assault charge against him, subsequently leading to his arrest.

     The trial court entered summary judgment for the defendant officer, but a federal appeals court disagreed, and reversed.

     The plaintiff stated that he was attending a political fundraiser for another state legislator when two of his employees, also attending, learned that their borrowed car, which they had driven to the event, had been towed. He drove them to a nearby auto pound where they believed the car might be found. Employees at the lot refused to release the car to them because they were not the legal owner. Soon after, a police car arrived in response to a call from the auto pound supervisor, because of the alleged "aggressive" attempts of the plaintiff and his friends to retrieve the car.

     The plaintiff and the officer who arrived on the scene allegedly became involved in an argument, and the officer allegedly struck the plaintiff in the side of his head with his fist, causing him to fall down. The plaintiff told a police supervisor who arrived on the scene that he wanted to file a complaint against the officer who struck him, and he was then transported to a hospital by ambulance.

     After the plaintiff was treated at the hospital, a different officer picked him up, and drove him to the station house, supposedly so that he could file his complaint. To the plaintiff's surprise, however, he was instead arrested and charged with an assault based on a criminal complaint signed by the officer he claimed hit him. The assault charge was later dismissed.

     A federal appeals court rejected the trial court's ruling that the defendant officer who signed the complaint could not be held liable for false arrest because he did not make the arrest himself. "A police officer who files a false report," the court commented, "may be liable for false arrest if the filing of the report leads to a seizure in violation of the Fourth Amendment, even if he did not conduct the arrest himself." Summary judgment on the false arrest claim, therefore, was erroneous.

     The appeals court also reversed summary judgment for this officer on the excessive force claim. The trial court had ruled that, even if the officer did hit or push the plaintiff, and even if this was "wholly unwarranted," it was not the "kind of use of force" which federal civil rights law was meant to provide a remedy for, stating that it was "not police work. It did not directly attend the arrest or taking into custody of the plaintiff." The appeals court interpreted this as meaning that the trial court believed that no seizure had taken place for Fourth Amendment purposes. "It certainly could not have meant," the appeals court commented, "that police work is limited to arresting people and taking them into custody."

     The appeals court found that when a police officer's use of force causes a man to "reel backwards and fall to the ground, a seizure has occurred." Indeed, the court noted, the plaintiff claimed that the blow caused him to black out momentarily, and to remain in a daze for a time, unable to move.

     Acevedo v. Canterbury, No. 04-4292, 2006 U.S. App. Lexis 20492 (7th Cir.).

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Officer did not seize a motorist simply by parking behind him in motel parking lot after allegedly observing erratic driving, and only detained him after having reason to do so because he smelled alcohol when the vehicle window was opened. Summary judgment for officer and city was proper in motorist's false arrest lawsuit.

     A Georgia man asserted civil rights claims against a city and one of its police officers claiming that his rights were violated during an encounter with the officer that eventually resulted in his arrest. A federal appeals court, upholding summary judgment for the defendants, found that the initial encounter between the plaintiff and the officer was "non-coercive" and did not constitute a detention under the rules of the Fourth Amendment. It further found that the officer did not arrest the plaintiff until he had probable cause to do so, so that no false arrest occurred.

     The officer claimed that he observed the plaintiff's vehicle weave in between lanes without signaling and make an improper turn into the parking lot of a motel, and decided to investigate. He pulled into the parking lot, parking directly behind the plaintiff's already parked vehicle, "initialed" his window lights, and beeped his siren to make the occupants of the vehicle know he was there. He got out of his car and approached the window on the driver's side.

     The plaintiff lowered the window, and the officer alleged that he immediately smelled alcohol, and that the plaintiff's eyes were bloodshot and glassy, and that there was a white, non-translucent cup in the cup-holder nearest to the plaintiff. He told the driver he was stopped because he made too wide a turn into the parking lot. The plaintiff allegedly called the officer a "liar," but produced his driver's license. The driver also allegedly responded to the officer's question as to whether a female passenger in the vehicle was his girlfriend by stating that it was none of his business.

     The officer performed a warrant check on the plaintiff, but found nothing, but the insurance card produced by the driver showed his insurance as expired. Because the driver allegedly kept calling the officer a liar, the officer radioed for back-up. The plaintiff allegedly admitted to having had a few beers in response to the officer's question whether he had been drinking. The plaintiff later denied having done so, or having drunk any alcohol, in fact stating that he was the "designated driver" for the vehicle. He refused, on the scene to take a Breathalyzer test.

     After a second refusal, he was placed under arrest for DUI. One of the officers who arrived later testified that the plaintiff smelled of alcohol, and appeared to have been drinking. Charges of DUI and no proof of insurance were later dropped, and the plaintiff was acquitted of charges of improper lane change and having an open container of alcohol.

     Upholding summary judgment for the defendants in a federal civil rights lawsuit brought by the plaintiff, a federal appeals court rejected the argument that the officer "seized" the plaintiff merely by pulling up behind him in the parking lot and approaching his vehicle. This did not constitute "coerced detention," despite the fact that the placement of his vehicle arguably blocked the plaintiff's car from leaving, as the plaintiff did not, at that time, intend to leave the parking lot, but rather to go inside the building.

     It was, however, clear to the appeals court that the officer did detain the plaintiff after smelling alcohol in the vehicle, but at that point, he had reasonable suspicion to detain him in order to investigate. After the officer completed his investigation triggered by that reasonable suspicion, the appeals court found, he had probable cause to arrest him. This probable cause was supported by his observation of the plaintiff's driving, the smell of alcohol coming from the vehicle's inteior, and the plaintiff's refusal to take a Breathalyzer test. A reasonable officer, the court believed, could conclude from this that the driver had in fact been drinking.

     A driver, the court noted, cannot escape arrest simply by refusing to cooperate. While the plaintiff argued that he was stopped because he is African-American and the officer intended to harass him, the appeals court reasoned that it is "well-settled that an officer's subjective motivations do not affect whether probable cause existed."

     Miller v. Harget, No. 05-13573, 2006 U.S. App. Lexis 19887 (11th Cir.).

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Acquitted murder suspect's allegation that Chicago police detectives conspired to frame him and several others for a murder they did not commit did not constitute a valid civil RICO claim despite the scheme purportedly involving multiple criminal acts, over a period of years, and targeting multiple victims, when there was no indication that the detectives engaged in any misconduct before or after the alleged scheme, or threatened to do so in the future. Under these circumstances, there was no "pattern" of racketeering activity.

     After a Chicago man was acquitted of murder by a jury, he sued several Chicago police detectives involved in the investigation of his case under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. His lawsuit asserted that the detectives lied and conspired in their investigation and testimony to falsely accuse him and others of the murder. A trial court denied a motion by the defendant detectives for dismissal of the lawsuit, and their argument that the plaintiff had failed to adequately state a RICO claim. It did dismiss federal civil rights claims and state law claims as time barred under the statute of limitations. A federal appeals court reversed on the RICO claim, and ordered the lawsuit's dismissal.

     Four police detectives were assigned to the murder investigation, and the plaintiff and four others were eventually charged in the kidnapping, beating, and murder of the victim. While the plaintiff was acquitted, the other four men were convicted, but all of these convictions, even one by guilty plea, were overturned, and the true murderer was subsequently identified.

     The trial court found that the plaintiff's claim that the four detectives conspired to prosecute him for the murder adequately stated a RICO claim. The detectives, on appeal, argued that it did not, because a "single scheme that ends without indication that it will be repeated" does not establish a "pattern of racketeering activity merely because the scheme occurs over several years, involves a variety of predicate acts, and targets more than one victim."

     The appeals court noted that there are four elements to a civil RICO claim: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.

     The only element disputed in the appeal was the third one, the "pattern" element. For this element to be satisfied, the appeals court reasoned, the alleged acts of wrongdoing must not only be related, but must "amount to or pose a threat of continued criminal activity."

This is true whether the misconduct at issue is considered a "close-ended" scheme (a completed scheme that, by its duration, can carry an implicit threat of future harm) or "open-ended" scheme (a scheme that, by its intrinsic (e.g., business-as-usual) nature, threatens repetition and thus future harm). Consequently, isolated instances of criminal behavior, not presenting at least some threat of future harm, cannot meet § 1962(c)'s continuity element.

     The plaintiff's complaint accuses the detectives of making false arrests, tampering with witness statements, procuring perjured testimony, committing perjury, and engaging in a malicious prosecution. It also claims that they falsified police reports, coerced witnesses to testify against the plaintiff and others falsely, and lied before a grand jury or in court, in an attempt to convict the plaintiff and others of a crime they did not commit in order to cover up their false arrests.

     The appeals court found, however, that the allegations in the plaintiff's complaint showed that the alleged scheme by the detectives had a "limited purpose," distinct from their routine law enforcement duties, to frame the plaintiff and the others charged for the murder. This, the court found, amounted to an alleged "one-time endeavor to wreak havoc upon all matters linked to a single murder investigation." This alleged criminal activity, therefore, had a "built-in end point: once the frame-up was put to rest, the scheme was over."

     There was no indication or allegation that the detectives engaged in any other misconduct before or after this alleged scheme, or that they intended or threatened to commit similar actions in future investigations. The appeals court rejected the trial court's argument that the plaintiff's complaint still stated an adequate RICO claim because the detectives' "one-shot" scheme took several years, involved a variety of criminal acts, and targeted multiple victims.

     In doing so, the appeals court commented, the trial court erroneously allowed these factors to "override the big picture." Since the allegations in the complaint "foreclosed any threat of continued criminal activity," it did not constitute a valid RICO claim.

     Gamboa v. Velez, No. 05-1690, 2006 U.S. App. Lexis 20493 (7th Cir.).

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Drug suspect's arrest, pursuant to arrest warrant was lawful, and so was the search of the car he was going towards at the time of his arrest, which an informant had told officers had previously had marijuana in it. A search of his second car, found parked in a lot in his apartment complex, if conducted, was not legal, since the officers lacked a warrant, probable cause, a concern for officer safety, or consent to search it.

     Police officers applied for and received a warrant to arrest a man and search his apartment based on information from a confidential informant who stated that he had seen the man with marijuana at the apartment. The next day, the suspect left the restaurant where he was employed, and walked across a parking lot towards his parked vehicle. As he approached the vehicle, he remotely unlocked the doors and started the engine. As he did so, he was intercepted by two officers. He confirmed his identity, and was then placed under arrest. After he was searched, and no weapon or contraband was found, he was handcuffed and placed in a police vehicle. The officers advised him that they had an arrest and search warrant for him and his apartment. They then searched the vehicle, but again found no weapons or contraband.

     The officers took the man and his vehicle to the apartment complex where he lived, with one officer driving the man's vehicle there. They obtained a key and executed the search of the apartment, again finding no contraband. They then searched the car a second time, and found one marijuana seed. Subsequently, they searched a second car the suspect had, which was parked in the apartment complex parking lot, finding nothing illegal in it. The suspect was released, with no charges filed against him. He sued the officers and city, claiming that these actions violated his constitutional rights and were the result of the city's official policy, custom or practice.

     The trial court granted motions to dismiss and for summary judgment, based on the defendants' argument that the warrant was valid, all of the searches were legal, and that, even if a search were unconstitutional, the officers were immune from liability.

     A federal appeals court agreed that the warrants were valid, and that the plaintiff's initial arrest was constitutional. The appeals court further found that both searches of the arrestee's first car were constitutional. The confidential informant had also told one of the officers that this vehicle had sometimes had marijuana in it, and the search occurred at the time of the plaintiff's arrest, and a second time at the apartment complex after it had been transported there.

     The appeals court found, however, that the alleged search of the second car at the apartment complex, if the plaintiff's version of the facts were true, would have been unconstitutional. The officers claimed that no search took place, because they merely looked through the car's windows, but the plaintiff arrestee claimed that the officers opened all of that car's doors and began looking through it.

     This car, the appeals court reasoned, was not subject to a valid warrantless search under the automobile exception, since the officers had no probable cause to believe that marijuana would be found in it. The informant had only told the officers that the suspect sometimes kept marijuana in the first car, not the second. Further, the officers did not claim that, upon looking into the second car, they saw or smelled something that might lead to probable cause, so no search of the second car was allowed under the automobile exception to the warrant requirement.

     The court noted that the warrantless search of the second car might be constitutional if it had been parked "within the apartment's curtilage," since they had a valid warrant to search the apartment. The court found that the second car, parking out in the parking lot, was not within the apartment's curtilage, that area of "intimate activity associated with the sanctity of a man's home and the privacies of life." The area it was parked was an "open parking lot," in a common area used for parking with multiple spaces, so that a vehicle parked there was not shielded from view by others.

     The appeals court further noted that the second car was not mentioned in the warrant, had not been mentioned by the informant as having been used to transport drugs, and that the arrestee had not been driving that car on the day of his arrest and was not in its vicinity when he was brought back to the apartment complex. Accordingly, the officers failed also to show that they needed to search the car based on valid safety concerns.

     The officers' search of a car in an open parking lot without a search warrant, probable cause, a concern for officer safety, or consent, the appeals court concluded, violates clearly established law, so that they were not entitled to the defense of qualified immunity.

     The appeals court also found that the plaintiff's complaint, in alleging that the city had a policy or custom of inadequately supervising and training its police officers, including those known to have been engaged in improper police conduct, resulting in the officers believing that their actions would not be properly monitored by supervisory officers, nor would misconduct be investigated was adequate to assert a valid civil rights claim against the city.

     Mack v. City of Abilene, No. 05-10844, 2006 U.S. App. Lexis 21033 (5th Cir.).

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

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Defenses: Governmental Immunity

     Counties, cities, villages, and their employees were entitled to immunity under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq. on claims that they failed to respond to a caller's report that a driver's vehicle left the road and was currently in a ditch. The statute provides immunity on claims for failing to adequately provide "police protection services," and applies to claims concerning the failure to aid motorists who have gone off a road. DeSmet v. County of Rock Island, No. 100261, 848 N.E.2d 1030 (Ill. 2006).

     Indiana Tort Claims Act did not provide governmental immunity to officer or city for the officer's purported negligent operation of his car against a red light while engaged in pursuing a suspect, resulting in injuries to another motorist. Patrick v. Miresso, No. 45803-0505-CV-223, 848 N.E.2d 1083 (Ind. 2006).

Defenses: Qualified Immunity

     Even if trial judge's submission of qualified immunity issue to the jury in federal civil rights lawsuit over deputy sheriff's alleged use of excessive force was in error, reversal of the jury's finding that he was entitled to that defense did not require reversal by a federal appeals court. The record showed that the parties to the lawsuit and the court were careful in submitting the issues to the jury, and the plaintiff arrestee, at the time, had not objected to the jury deciding the question. Helsabeck v. Faryanic, No. 04-2244, 173 Fed. Appx. 251 (4th Cir. 2006).

Defenses: Statute of Limitations

     Arrestee's claim against officer arising out of his search and the officer's alleged action in coercing him into signing a release allowing the videotape of the incident to be shown on television on the Fox TV show "Cops" accrued at the time of his arrest, so his claims were barred under a Kansas statute of limitations when he sued the officer more than two years later. While his claims against the television producers and network for invasion of privacy accrued later, when the program aired, he could not pursue federal civil rights claims against them, because they did not act under color of state law. Mitchell v. Langley, No. 05-3393, 172 Fed. Appx. 900 (10th Cir. 2006).

Domestic Violence

     Several arrests of a police officer's wife, under valid arrest warrants, in connection with domestic disputes, did not violate her rights when the plaintiff failed to show that there were any false statements in the affidavits seeking the warrants. The failure of investigating officers to immediately arrest her husband when she stated that he had attacked her did not violate her due process rights. Investigating officer looked into both husband's and wife's versions of the incident, and two days later obtained arrest warrants for both of them. Zappone v. Town of Watertown, No. CIV. 3:99CV00944, 427 F. Supp. 2d 83 (D. Conn. 2006).

Expert Witnesses

     It was no abuse of discretion to exclude an expert witness's testimony in an excessive force case involving a police shooting when the court found that the expert's opinion that a reasonable officer would have been able to tell that the plaintiff was not holding a gun, bur rather a cell phone, had "no basis." Hickey v. City of New York, No. 05-1933-CV, 173 Fed. Appx. 893 (2nd Cir. 2006).

False Arrest/Imprisonment: No Warrant

     Officers did not violate an arrestee's Fourth Amendment rights when they searched and arrested him, having seen, in plain view, that he was in possession of an unlawful switchblade. Fox v. Michigan State Police Depart., No. 04-2078, 173 Fed. Appx. 372 (6th Cir. 2006).

     Officers had probable cause to arrest certain shopping mall patrons on suspicion of passing counterfeit currency when they had been trained in detecting counterfeits and the bills at issue appeared to be printed off center and had other questionable features, despite the fact that the bills were later determined to be genuine. Adams v. Carlisle, No. A05A1836, 630 S.E.2d 529 (Ga. App. 2006).

     A man arrested for extortion for allegedly taking money from a police officer in exchange for getting his girlfriend to drop charges of rape against the officer's friend could not base a federal civil rights lawsuit for false arrest on an "entrapment" argument. "Entrapment is a defense in a criminal matter, but it does not exist as a civil cause of action," and is not a "constitutional offense." Dawkins v. Williams, No. 1:04-cV-0398, 413 F. Supp. 2d 161 (N.D.N.Y. 2006).

False Arrest/Imprisonment: Unlawful Detention

     Under Michigan state law, arrestee's lawsuit over being mistakenly being held in custody for several months despite his claim that his twin brother was the person suspected of having committed a crime fell within a "gross negligence" exception to the defense of governmental immunity from liability. Kendricks v. Rehfield, No. 256693, 716 N.W.2d 623 (Mich. App. 2006).

False Arrest/Imprisonment: Warrant

     Plaintiff arrestee adequately alleged that her arrest for violation of probation concerning prostitution was made with a warrant that was not valid on its face, and which had been altered after it was issued by the handwritten insertion of her proper married last name, so that sheriff's deputies sued for alleged arrest of plaintiff in a case of mistaken identity were not entitled to qualified immunity. Plaintiff claimed that her identity had been stolen ten years before and that the jurisdiction seeking the suspect had both a photograph of the suspect and her fingerprints, but failed to send those items to the county officers who arrested her. McCutchen v. Tipton County, No. 05-2142, 430 F. Supp. 2d 741 (W.D. Tenn. 2006).

     Detective could not be held liable for alleged constitutional violations stemming from a purportedly unduly suggestive identification or alleged defects in the procurement of the arrest warrant when the arrestee pled guilty to the charged robbery offense. Antonio v. Moore, No. 05-6272, 174 Fed. Appx. 131 (4th Cir. 2006).

Family Relationships

     The parents, siblings, and children of a man allegedly shot and killed without provocation by officers during a raid on a housing project did not have their own federal civil rights claim, as the officers did not act with the intent of interfering with their family relationships with the decedent. Martinez-Rivera v. Sanchez Ramos, No. 05-2146, 430 F. Supp. 2d 47 (D. Puerto Rico 2006).

Firearms Related

     Three million dollar settlement reached in lawsuit by family of unarmed man shot and killed by police officer during a raid on a warehouse where he worked repairing art and musical instruments. The raid was conducted because police suspected that DVD and CD counterfeiting was going on in the facility. The former police officer who shot the decedent was convicted of criminally negligent homicide. Sanfo v. City of New York, No. 1:04-CV-01760, U.S. Dist. Ct. (S.D.N.Y. 2006). Click here to read the Complaint in the case.

First Amendment

     Officers were not entitled to qualified immunity in lawsuit claiming that they forced demonstrators against alleged police brutality to march on the sidewalk after they had been granted a permit to march in the street, on the basis of the content of their message. Court finds that no reasonable officer could have believed that they could constitutionally discriminate against demonstrators based on the content of their speech and for reasons not related to the safety of vehicular or pedestrian traffic. Seattle Affiliate of Oct. 22nd Coalition to Stop Police Brutality v. City of Seattle, No. C04-0860, 430 F. Supp. 2d 1185 (W.D. Wash. 2006).

Forfeiture

     In proceeding challenging attempted forfeiture of paintings seized in the course of criminal prosecution, the government, rather than the owner had the burden of proof and the failure of the U.S. government to provide written notice of the seizure within 60 days required it to return the paintings, under the provisions of 18 U.S.C. Sec. 983(a)(1)(F). Saro v. U.S., No. 04-14308, 173 Fed. Appx. 760 (11th Cir. 2006).

Loss of Evidence/Preservation of Evidence

     When the city allegedly violated a court order requiring the preservation of a motor vehicle that caught fire, instead destroying it and selling it for scrap, the occupants of the vehicle, injured in the fire, had an arguable claim for spoilation of evidence against the city, since this interfered with their possible products liability lawsuit concerning the vehicle. This was a valid claim even if the city acted unintentionally and negligently, when the city had notice of the court order. Ortega v. City of New York, #22913/2004, 809 N.Y.S.2d 884 (N.Y. Sup. Kings County 2006).

Malicious Prosecution

     When no reasonable jury could find a lack of probable cause, there was a complete defense to an arrestee's false arrest and malicious prosecution claims under both federal and New York state law. Maron v. County of Albany, No. 05-3354, 166 Fed. Appx. 540 (2nd Cir. 2006).

Native American Police Officers and Agencies, and Related Issues

     Rhode Island's seizure, after entering an Indian tribe's land under a warrant, of unstamped, untaxed cigarettes, and the subsequent related arrest of tribal members was legal, because of a previously negotiated joint memorandum of understanding, which was codified in the Rhode Island Indian Claims Settlement Act, 25 U.S.C. Secs. 1701-1716, subjecting the tribe to the state's laws. Narragansett Indian Tribe v. State of Rhode Island, No. 04-1155, 449 F.3d 16 (1st Cir. 2006)

Negligence: Vehicle Related

     The issue of whether a city emergency vehicle's emergency lights were visible from a distance of 500 feet, as required by state law, was for the jury in a negligence lawsuit by a motorist against the city for injuries suffered in his collision with the emergency vehicle. Jury's verdict for the city upheld. Wynn v. City of Warner Robins, No. A06A0402, 630 S.E.2d 574 (Ga. App. 2006).

     Genuine issue of whether police vehicles actually blocked traffic going northbound on a road during a high speed chase, resulting in injuries to a motorist, barred summary judgment for defendants in negligence lawsuit. Charles County Commissioners v. Johnson, No. 104, 900 A.2d 753 (Md. 2006).

Police Plaintiff: Firearms Related

    A dispatcher did not engage in conduct violating an officer's due process rights in communicating to him the nature of a 911 call which he responded to, getting fatally shot when he arrived. The dispatcher, while knowing that there was a possibility that someone had been injured at the scene of the call, did not know for a fact that there had actually been an injury, much less the source of that injury, and she did not know that injuries had been caused by violent criminals, rather than by accident, at the time she dispatched the officer. Aselton v. Town of East Hartford, SC17383, 277 Conn. 120, 890 A.2d 1250 (Conn. 2006).

Public Protection: 911 Phone Systems

     County was not liable for failure to provide assistance to a heart attack victim on the basis of a 911 call which was hung up before the dispatcher receiving the call could respond, and before any assurance of assistance was made. The dispatcher still sent an officer to investigate, but a prank call had also come from the same pay phone minutes earlier, and the officer cleared the call after finding a boy near the phone who admitted to having made the prank call, failing to go on to the address given in the call reporting the heart attack. The heart attack victim subsequently died. Under these circumstances, no promise of medical aid was given on which the heart attack victim could have reasonably relied. Cummins v. Lewis County, No. 76249-0, 133 P.3d 458 (Wash. 2006).

Pursuits: Law Enforcement

     Police officers had a non-discretionary duty under their department's pursuit policy to discontinue the vehicular pursuit of a suspect whose identity was known, in the absence of specified serious felonies, and were therefore not entitled to official immunity under Minnesota law for failing to discontinue their pursuit in a lawsuit brought by the widow of a pedestrian killed as a result of the pursuit. Mumm v. Mornson, #A04-729, 708 N.W.2d 473 (Minn. 2006).

     Deputy sheriff did not act with reckless disregard for safety when he joined a high-speed pursuit of a motorist behind two other police vehicles, and the pursued car collided with another driver. There was no indication that the pursued suspect even knew that there was a third police vehicle chasing him. There was also no evidence that the pursued motorist's conduct change after the third police vehicle joined the chase, so this deputy was properly granted summary judgment. Athay v. Stacey, #31164, 128 P.3d 897 (Idaho 2006).

RICO

     Business owners failed to assert a valid claim against the city and its officials and employees, including the police chief, under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961, or under 42 U.S.C. Sec. 1983, by stating that they engaged in wire and mail fraud. The plaintiffs failed to provide sufficient specifics of the defendants' actions and only provided general conclusory statements that they were deprived of federally protected rights. Leeds v. City of Muldraugh, Meade County, Kentucky, No. 04-6495, 174 Fed. Appx. 251 (6th Cir. 2006).

Search and Seizure: Home/Business

     The finding that the occupant of a home voluntarily consented to a warrantless entry at nighttime barred a claim that the officer's entry violated his rights, despite her argument that she was ill and "confused" at the time of the incident, in the absence of any showing that the officer coerced her consent. Stone v. Town of Westport, No. 3:04CV18, 411 F. Supp. 2d 77 (D. Conn. 2006).

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     Article: "Knock and Talks" by Jayme W. Holcomb, 75 FBI Law Enforcement Bulletin No. 8, pgs. 22-32 (Aug. 2006). "The use of the knock and talk technique raises a number of Fourth Amendment issues." [HTML] [PDF]

     Article: "School Resource Officer Programs." by Peter Finn, 75 FBI Law Enforcement Bulletin No. 8, pgs. 1-7 (Aug. 2006). "Many law enforcement agencies have found that operating and contributing to the cost of a school resource officer program repays them in significant ways." [HTML] [PDF]

     News: The FBI, on July 26, 2006, announced a "broad internal restructuring," aligning key programs to "reflect our shift since 9/11 into a more threat-based, intelligence-driven organization." Click here  to access information from the Bureau discussing this, including a press release and a revised organizational chart.

     Publication: Strategic Planning Best Practices Guide The IACP Research Center Directorate’s Smaller Police Department Technical Assistance Program, funded by the U.S. Department of Justice, Bureau of Justice Assistance, has published a new Best Practices Guide in its series entitled “Strategic Planning: Building Strong Police-Community Partnerships in Small Towns”. The guide is written by program advisor, Chief David L. Kurz, Durham Police Department, New Hampshire. Visit the Smaller Agency Website to access this or all guides in the series. Contact Elaine Deck, Program Manager, at 800-THE-IACP, ext. 262, or decke@theiacp.org.

     Report: Report of the Special State's Attorney Appointed and Ordered by the Presiding Judge of the Criminal Division of the Circuit Court of Cook County, Illinois in No. 2001 Misc. 4. Edward J. Egan, Special State's Attorney, and Robert D. Boyle, Chief Deputy Special State's Attorney. 292 pgs. July 19, 2006. This report, by an independent special prosecutor appointed to investigate allegations that Chicago police officers, including a former Commander, Jon Burge, engaged in torture or other mistreatment of suspects being interrogated, concluded that five individuals could have been indicted for mistreatment of suspects in three of the probed cases, but that the statute of limitations barred prosecution. The report stated that there was evidence with "varying degrees of credibility" of abuse in approximately 74 cases during the 1970s through the 1990s, involving officers at police stations in two areas under Burge's supervision. The investigation examined 148 cases of alleged abuse in some detail, while 98 other cases were classified as beyond the scope of what the special prosecutor was appointed to do, or unfounded.

     School Safety: As part of a project funded by the National Institute of Justice (NIJ), the International Association of Chiefs of Police (IACP) has published a guide to digital imaging titled Digital Imaging for Safe Schools: A Public Safety Response to Critical Incidents. The IACP partnered with Arlington and Fairfax counties in Virginia in a project to employ digital images taken in schools as the foundation for constructing virtual classrooms to be used during a critical incident. With the photos compiled from each school, first responders arriving on scene have access to school maps and floor plans through either the Internet or a CD-ROM. They can then use the 360-degree images to quickly ascertain trouble spots and develop a tactical plan even before entering the building. The result of this partnership is a how-to resource guide for public safety practitioners and school administrators to use in developing their own response plans. More information and a version of the guide are available at http://www.theiacp.org/research/RCDTechCuttingEdge.html.

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

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