---

 Search the Case Law Digest

CONTENTS

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Lexis citation can be retrieved, for a fee, at: http://web.lexis.com/xchange/forms/uas/catalog.asp
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.

Assault and Battery: Flashlight

***Editor's Case Alert***

     A reasonable officer would know that administering closed-fist punches and flashlight blows to the head, after an arrestee was handcuffed, and continuing to strike him after he had stopped resisting arrest -- and failing to place him in the proper position after hobbling him -- was excessive force. The officers were not entitled to qualified immunity. Sallenger v. Oakes, #05-3470, 2007 U.S. App. Lexis 436, 2007 WL 60422 (7th Cir.)

Assault and Battery: Handcuffs

     Arrestee's claim that officers handcuffed him too tightly, by itself, was insufficient to assert a valid claim for excessive use of force. Photos of his arms that the plaintiff presented showed only minor red marks, and may have shown a modest amount of swelling. These injuries were too minimal to support a constitutional claim. Montes v. Ransom, No. 05-11206, 2007 U.S. App. Lexis 3837 (5th Cir.).

Assault and Battery: Physical

     Officers who responded to a report that a man was attempting to commit suicide were not liable to allegedly using excessive force against him while trying to subdue him. Among other things, his subsequent criminal conviction for attacking the officers excluded his recovery on his claim of excessive force, because awarding him damages would have implied the invalidity of that conviction, which had not been set aside. Roberts v. Anderson, No. 05-6828, 2007 U.S. App. Lexis 759 (6th Cir.).

Attorneys' Fees: For Defendants

     While police and city prevailed in arrestee's excessive force lawsuit, the fact that there was some evidence that he suffered injuries to his face requiring stitches, and that the officers struck him after he had been subdued indicated that his lawsuit was not frivolous or malicious. As a result, the defendants were not entitled to an award of attorneys' fees against the plaintiff. Stollings v. Current, No. 3:05-cv-109, 2007 U.S. Dist. Lexis 6665 (S.D. Ind.).

Damages: Punitive

     An award of $79.5 million in punitive damages in a case involving an award of $821,000 in compensatory damages violated due process and amounted to an unconstitutional taking of property when the jury was motivated in part by a desire to punish the defendant for allegedly harming persons who were not parties to the litigation. The case involved claims against a tobacco company, rather than claims about law enforcement, but the analysis in it, rejecting the roughly 100-to-1 ratio the punitive damage award bore to the compensatory damages amount as "grossly excessive" may be useful in also defending law enforcement personnel against excessive punitive damage awards. Philip Morris USA v. Williams, No. 05-1256, 127 S. Ct. 1057 (2007).

Defenses: Absolute Immunity

     In malicious prosecution lawsuit, prosecutor was entitled to absolute immunity for all his actions, including his decisions as to which witnesses to call before the grand jury which indicted the plaintiff. Redwood v. Dobson, No. 05-4324, 2007 U.S. App. Lexis 2606 (7th Cir.).

Defenses: Statute of Limitations

     U.S. Supreme Court rules that the statute of limitations on a federal civil rights claim for false arrest which results in a criminal prosecution starts to run on the date the arrestee is detained. Wallace v. Kato, No. 05-1240, 127 S. Ct. 1091 (2007).

Dogs

     Sheriff's deputy might not be entitled to immunity under Ohio law from individual liability for injuries his police dog inflicted by jumping on an 85-year-old woman causing her to suffer a broken hip. The incident occurred while the deputy was getting ready to leave for work, and when he left his dog off a leash to go relieve himself. Hicks v. Allen, No. 2005-A-0002, 2007 Ohio App. Lexis 614 (11th Dist.).

     A lone officer, who came upon an incident involving two people engaged in a fight, along with a third person who jumped into the fight to try to stop it, acted reasonably under the circumstances in releasing his police dog which bit one of the individuals. Moore v. Vangelo, No. 05-4309, 2007 U.S. App. Lexis 3156 (3rd Cir.).

Domestic Violence

     Police officer had probable cause to arrest husband for allegedly striking his daughter above her eye, based on a report by his wife. Crosset v. Marquette, No. C-060148, 2007 Ohio App. Lexis 508 (1st Dist.).

False Arrest/Imprisonment: No Warrant

     Police officer who observed a man holding a beer can at a public festival, and also saw the man place the can on the ground and attempt to move away when the officer approached, as well as smelling alcohol when speaking with him had probable cause to make an arrest. Bresette v. Krewson, No.06-C-280-C, 2007 U.S. Dist. Lexis 11792 (W.D. Wis.).

     A man found inside a house by the homeowner and a police officer was not entitled to damages for false arrest, as the officer reasonably believed that he had committed a crime and was an intruder. Buxton v. Nolte, No. 3:05-cv-212, 2007 U.S. Dist. Lexis 11464 (S.D. Ohio).

     Officers who pursued motorist with their flashing lights and sirens activated had probable cause under Kentucky law for fleeing when he failed to pull over and stop his vehicle. The officers began the pursuit because the motorist unlawfully did not have illumination over his license plate. Nelson v. Riddle, No. 06-5570, 2007 U.S. App. Lexis 3592 (6th Cir.).

     Officers had probable cause to arrest a university building services worker for "criminal menacing" under Ohio law based on a call from a co-worker who reported that the arrestee had threatened him. The co-worker reported that the arrestee had stated that he should "knock the f**k out of" him, and that the arrestee's manager also expressed fear that the arrestee would hurt his co-worker. The fact that the officers did not interview the suspect before arresting him did not alter the result. Franklin v. Miami University, No. 05-4445, 2007 U.S. App. Lexis 693 (6th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     Police officers initially had probable cause to arrest the plaintiff as the armed man who robbed a gas station, based on the cashier's identification of him as the robber, but two officers were not entitled to summary judgment on the arrestee's claim that, although he had prominent tattoos on his arms, they unreasonably prolonged his detention after watching a videotape that showed that the robber had no such tattoos, hid the tape, and falsely reported that the tape showed a man with tattoos. Russo v. City of Bridgeport, No. 05-4302, 2007 U.S. App. Lexis 4428 (2nd Cir.).

Firearms Related: Intentional Use

     California highway patrol officer was not entitled to qualified immunity in lawsuit claiming that he shot and killed teenage driver at conclusion of pursuit without warning and without reason to belief that he needed to do so to defend himself or others at that time. Adams v. Speers, No. 05-15159, 2007 U.S. App. Lexis 442 (9th Cir.).

First Amendment

     City's security plan, designed to protect a NATO conference from possible terrorism or violent protests, did not violate the First Amendment rights of demonstrators when it was content neutral, there was a significant security interest involved, and the restrictions on demonstrating were limited to the immediate area of a hotel at which the conference was taking place. Citizens for Peace in Space v. City of Colorado Springs, No. 05-1391, 2007 U.S. App. Lexis 4441 (10th Cir.).

     City and FBI agents in their official capacities were not liable for allegedly violating the First Amendment rights of an anti-abortion group and three individuals involved in a "public education" program on abortion during which they used two trucks that displayed pictures of aborted fetuses, along with a third vehicle that looked similar to a police car. Police officers and individual FBI agents, however, were not entitled to summary judgment on claims that they detained the individuals without probable cause, because there were genuine issues as to whether they did so based on concerns about public safety or in retaliation for the individual's speech. Center for Bio-Ethical Reform, Inc. v. City of Springboro, No. 06-3284, 2007 U.S. App. Lexis 3689 (6th Cir.).

     A city ordinance regulating the playing of sound devices gave fair notice to anti-abortion activists of prohibited conduct, so that the use of the ordinance to bar them from playing a recording near an abortion clinic of a 911 emergency call concerning a woman whose bleeding could not be stopped following an abortion was not unreasonable. Gaughan v. City of Cleveland, No. 06-3010, 2007 U.S. App. Lexis 281 (6th Cir.).

Governmental Liability: Policy/Custom

     District of Columbia could not be held liable for an officer's alleged excessive use of deadly force when there was no evidence of any official policy or custom which caused the incident, and there was no evidence of failure to properly train and supervise the officer on the part of either the District or the police chief. Claim for excessive use of force remains pending against the officer, who allegedly shot and killed a woman who failed to respond to his orders that she drop a gun when she came up a staircase with it in her hand. Reed v. D.C., No. 03-1085, 2007 U.S. Dist. Lexis 12252 (D.D.C.).

Immigrants

     Immigration rights groups failed to show any actual injury to any of their members from a federal government policy and practice of entering and distributing civil immigration information to state and local law enforcement through the National Crime Information Center (NCIC), and therefore had no standing to assert claims concerning that policy and practice in a lawsuit. National Council of La Raza v. Gonzales, No. 03-CV-6324, 2007 U.S. Dist. Lexis 1238 (E.D.N.Y.).

Malicious Prosecution

     In a malicious prosecution claim, the mere fact that there were grounds for prosecution on one of the charges pursued, standing alone, did not bar the possibility of liability for pursuing other criminal charges. Johnson v. Knorr, No. 05-5029, 2007 U.S. App. Lexis 3242 (3d Cir.).

Negligence: Vehicle Related

     Motorcycle rider who accelerated to 80-85 mph was the sole proximate cause of an accident in which his vehicle collided with a state trooper's car in a rear-end collision. Intermediate appeals court overturns jury award finding the trooper 15% at fault for the accident. Dept. of Highway Safety v. Saleme, No. 3D06-1033, 2007 Fla. App. Lexis 2362 (3rd Dist.)

     Police officer engaged in an emergency operation, with lights and siren activated, could not be held liable for rear end collision with motorist's car on the basis of mere negligence. Under New York law, he could only be held liable if he acted in a reckless manner, so summary judgment for the motorist's insurer in its claim against the city was denied. Allstate Insurance a/s/o Austin v. City of New York, No. 017823/05, 2007 N.Y. Misc. Lexis 316 (Civil Court of City of New York, N.Y. County).

     No reasonable jury could find that a sheriff's deputy whose vehicle collided with the rear of the vehicle of a volunteer firefighter intended to inflict deadly force on the firefighter. While the accident resulted in the firefighter's death, the deputy's actions were, at most, negligent, and could not be the basis for a federal civil rights claim. At the time of the incident, both he and the volunteer firefighter were responding to the same reported traffic accident. Moore v. County of Leavenworth, Civil Action No. 05-2556, 2007 U.S. Dist. Lexis 5511 (D. Kan.).

Privacy

     In lawsuit challenging, on the basis of the constitutional right of privacy, a city ordinance criminalizing a "live sex act" business, the trial court improperly reached the merits of the case, and ruled that the business owner's customers could not assert a claim for relief under "any conceivable" set of allegations. Further proceedings ordered. Fleck & Assocs., Inc. v. Phoenix, No. 05-15293, 471 F.3d 1100 (9th Cir. 2006)

     Maine state employee did not violate federal constitutionally protected privacy rights by allegedly telling a man's daughter confidential facts about her grandmother's estate when the facts ultimately stemmed from documents filed in probate court which were public record. This was true even if the state employee violated a statutory mandate of confidentiality. Williams v. Baker, No. CV-05-183-B-W, 2006 U.S. Dist. Lexis 90192 (D. Maine).

Procedural: Discovery

     In a class action lawsuit by arrestees claiming that they underwent unconstitutional strip searches, appeals court orders further proceedings as to whether plaintiffs could compel production of emails allegedly protected under attorney-client privilege. On remand, trial court is to determine whether the distribution of the emails to various persons within the sheriff's department resulted in a waiver of attorney-client privilege. Pritchard v. County of Erie, No. 06-2459, 473 F.3d 413 (2d Cir. 2007).

Public Protection: Crime Victims

     City, mayor, and police chief were not liable under either federal or Washington state law for alleged failure to protect members of crowd from assault by drunken individuals. The officers present at the event did not enhance the danger to those attacked, and a state statute cited did not require officers to arrest individuals for an assault but merely authorized them to make such arrests. Further, there was nothing in the record to show that the defendants knew, at the time of the incident, that the plaintiffs were being harmed or threatened by the intoxicated persons. Johnson v. City of Seattle, No. 05-35319, 2007 U.S. App. Lexis 1509 and 2007 U.S. App. Lexis 1016 (9th Cir.).

Public Protection: Motoring Public and Pedestrians

     Officers who confronted allegedly intoxicated female motorist in the driveway of her estranged boyfriend's house were not liable, on the basis of the failure to detain her, for her subsequent accident, which occurred while she was speeding, intoxicated, and running a red light, which resulted in a person's death. The officers' actions or failure to act did not either create or enhance the risk that the motorist's intoxicated driving would result in an injury. Koulta v. Merchez, No. 06-1539, 2007 U.S. App. Lexis 4127 (6th Cir.).

Public Protection: 911 Phone Systems

     Death of woman who was having difficulty breathing could not result in municipal liability merely based on a fact that help was summoned through the city's 911 service, particularly when 911 was not called by anyone in the household, but rather by a medical alert company contacted by a household member. Conduct by an officer who arrived on the scene, however, and who allegedly repeatedly assured the household members that help was on the way, might be a basis for liability, requiring further proceedings. Etienne v. N.Y. City Police Dept., 2005-07313, (Index No. 8486/00), 2007 N.Y. App. Div. Lexis 2106 (2nd Dept.).

Public Protection: Witnesses

     Witness to gunfight between two rival drug gangs, who was subsequently shot after police allegedly publicly identified her as a cooperating witness failed to show that police officials had done so as part of a "plot" to obtain her cooperation, that her life was deliberately put in danger, or that the police commissioner was directly involved in the purported plot. None of these allegations could be reasonably arrived at on the basis of newspaper articles which appeared concerning the gunfight and its aftermath. Cherry v. Philadelphia, No. 06-1322, 2007 U.S. App. Lexis 3008 (3rd Cir.).

Search and Seizure: Home/Business

     D.E.A. agents who entered a drug suspect's house without a warrant and then allegedly stripped him of his clothes, and sprayed him with a fire hose for 15 minutes in temperatures below freezing were entitled to qualified immunity from liability. The agents did so after a confidential informant who had entered the house, where a methamphetamine lab was suspected, started complaining about chemical fumes and coughing, and they were afraid he had been exposed to some noxious chemicals. This gave them exigent circumstances to enter the house, and probable cause to suspect that the lab was in fact located there. Their actions with respect to the suspect were justified by their fear that toxic chemicals had saturated his clothing, and their desire to avoid exposing others to these chemicals. Glover v. Eight Unknown D.E.A. Agents/Drug Task Force Agents, No. 06-13061, 2007 U.S. App. Lexis 3948 (11th Cir.).

     Any "exigent circumstances" which existed after the controlled delivery of a "suspicious" package to a residence was deliberately created by law enforcement, so that entry into the home without a search warrant or arrest warrant, combined with a "protective sweep" of the premises was not justified. The officers, however, were entitled to qualified immunity as no prior case law had ruled on the specific narrow issue presented, so that the law on the subject was not "clearly established." Demayo v. Nugent, Civil Action No. 06-11510, 2007 U.S. Dist. Lexis 11847 (D. Mass.).

Sexual Assault

     While a constable's alleged sexual assault on a woman, if true, violated a clearly established constitutional right, the plaintiff failed to show a connection between the alleged assault and the failure of a supervisor to report a prior alleged incident of sexual misconduct by the constable. Claims for alleged inadequate supervision or training are rejected. Atwood v. Town of Ellington, No.3:04cv207, 2007 U.S. Dist. Lexis 176 (D. Conn.).

     •Return to the Contents menu.

     Foreign Arrestees & Foreign Language Proficiency: "Overcoming Language Barriers: Solutions for Law Enforcement," from Vera' Institute of Justice's Center on Immigration and Justice, provides practical tips and advice for law enforcement personnel who interact with communities that don't speak or understand English well. The report draws upon the Center's experience developing language access strategies with law enforcement agencies in California, Nevada, and Ohio.

     Internet Crimes: Investigations Involving the Internet and Computer Networks By National Institute of Justice, January 2007. This NIJ Special Report is intended as a resource for individuals responsible for investigations involving the use of the Internet and other computer networks. Any crime could involve devices that communicate through the Internet or through a network. Criminals may use the Internet for numerous reasons, including trading/sharing information (e.g., documents, photographs), concealing their identity, and gathering information on victims. The report is among a series of guides on investigating electronic crime.

     Management Resources: "Free Resources for Smaller Agencies," by Paul D. Schultz, Chief of Police, Lafayette, Colorado, January 2007 Police Chief Magazine. Free resources can be force multipliers. These resources can improve officer safety and effectiveness, improve the level of service, reduce liability and make communities safer.

      Websites: IDSafety.org, a Web site created by the IACP and Bank of America (BAC), is the first step in a three-year partnership between the IACP and BAC to help consumers and law enforcement officials better understand and respond to identity crime. The Web site's goal is to help both consumers and law enforcement officials prevent and report identity crime, investigate perpetrators, and help victims.

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

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