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Assault and Battery: Handcuffs

     Police officer acted reasonably in handcuffing arrestee behind his back even though he claimed to have told the officer that he recently had back surgery. The court found that the arrestee did not show any objective indication of injury which would inform the officer that handcuffing him in this manner might aggravate pre-existing injuries. Additionally, the arrestee failed, following the handcuffing, to complain to the officer about back pain or discomfort. Minor v. City of Chesterfield, Mo., No. 4:05CV00586, 2007 U.S. Dist. Lexis 39990 (E.D. Mo.).

Assault and Battery: Physical

     Because the alleged excessive force used against an arrestee did not take place until after she was handcuffed, put into a patrol car, and then removed from it, she could pursue her claim despite her conviction for resisting arrest with violence. Success on her civil rights claim would not imply the invalidity of her conviction, which was based on her initial kick against the officer while being placed under arrest. The defendant officers were therefore not entitled to summary judgment. Dyer v. Lee, No. 06-14680, 2007 U.S. App. Lexis 12941 (11th Cir.).

     While an arrestee's excessive force lawsuit against one of two officers who arrested him was not barred by his conviction for resisting the other officer, there was no genuine issue of fact created by the plaintiff, based on the record, that the officer he sued had used more than "the force a reasonable and prudent law enforcement officer would use." Summary judgment for the defendant officer, the city, and the police chief was therefore upheld. Jones v. City of Anaheim, No. 05-55752, 2007 U.S. App. Lexis 9647 (9th Cir.).

     The plaintiff arrestee's claim that the officer had assaulted and thrashed him, beating him into unconsciousness was not supported by the history and physical examinations of the arrestee that night in a hospital room, which were not consistent with his version of events, but the plaintiff was entitled, under the Seventh Amendment, to a jury trial on that claim to determine the credibility of his version of the incident. On the other hand, any injuries that resulted from the officer's action in taking the arrestee down to the ground were based on the arrestee's own actions in attempting to evade arrest for intoxicated driving, based on which the officer could reasonably believe that he was non-compliant. Therrien v. Town of Jay, Civil No. 06-31, 483 F. Supp. 2d 19 (D. Maine 2007).

     Despite the fact that the arrestee could not prove which of two officers allegedly beat him after he was arrested for intoxicated driving and handcuffed, officers who were present during the incident could be held liable if the facts were as alleged by the arrestee and they failed to intervene. Since both officers admitted that they were present at the scene, that, along with the arrestee's version of the event, would be sufficient for a jury, if it believed the arrestee, to find that both officers either used excessive force or that one did while the other failed to intervene. Summary judgment for the officers was therefore reversed. Velazquez v. City of Hialeah, No. 05-13157, 2007 U.S. App. Lexis 9127 (11th Cir.).

Attorneys' Fees: For Plaintiffs

     An arrestee who was awarded $275,000 in damages ($25,000 compensatory and $250,000 in punitive) on claims that he was "framed" and maliciously prosecuted on a firearms charge, and that excessive force was used against him by an officer who shot him in the buttocks, was also entitled to an award of attorneys' fees and costs of $507,000. The defendant city failed to convince a federal appeals court that the trial judge had abused his discretion in refusing to lower the amount of attorneys' fees awarded. The court rejected the city's argument that the plaintiff's success should be viewed as "minimal," requiring a reduction in the attorneys' fees award because the jury award was less than the amount of damages the plaintiff sought. Additionally, the court stated that the plaintiff's success should not simply be viewed in monetary terms. ''He effectively persuaded a jury that a significant number of City of Harvey officials conspired to plant a gun at the crime scene -- a victory that serves the public interest by exposing to light disturbing police malfeasance and grave municipal institutional failures, and one that will presumably help to deter future constitutional violations by the city's officers,'' the court stated. ''These achievements are anything but minimal.'' Robinson v. City of Harvey, No. 04-3993 2007 U.S. App. Lexis 13705 (7th Cir.).

Defenses: Statute of Limitations

     An arrestee's claims for alleged unlawful detention accrued at the latest in 1996, so that claims he asserted under the Federal Tort Claims Act (FTCA) in 2004, were barred by a two-year statute of limitations in 28 U.S.C.S. § 2401(b). Feurtado v. Dunivant, No. 06-56496, 2007 U.S. App. Lexis 14238 (9th Cir.).

     An arrestee's false arrest claim did not accrue under 42 U.S.C. Sec. 1983 until the prosecution terminated in his favor, so that his lawsuit, filed one year after that was not barred by a statute of limitations. Mapes v. Bishop, No. 06-30559, 2007 U.S. App. Lexis 14123 (5th Cir.).

False Arrest/Imprisonment: No Warrant

     The arrestee's appearance and behavior at a bar was sufficient to provide officers with probable cause to arrest him for public intoxication. The arrestee also failed to present a viable claim for excessive use of force by the officers, especially in light of the fact that he admitted going limp and dropping to the ground when they attempted to arrest him. There was no evidence that the officers acted intentionally in allegedly hitting his head against the door of the police van while placing him in it, or that this caused him any injury. Jackson v. City of Erie, Pennsylvania, No. 06-2134, 2007 U.S. App. Lexis 13670 (3rd Cir.).

     The arresting officer could reasonably decide, based on a motorist's refusal to take a field sobriety test, along with several symptoms of "severe" alcohol consumption that he had probable caused to make an arrest for driving under the influence. Wilder v. Turner, No. 06-1092, 2007 U.S. App. Lexis 2007 U.S. 13728 (10th Cir.).

     Police had probable cause to arrest the plaintiff twice--once for making threatening calls to his ex-girlfriend, based on her statements concerning those calls, and subsequently for violating a protective order entered as a result of those calls, based on credible information that the officer received through his supervisor that the plaintiff had, in fact, violated the protective order. Reynolds v. Jamison, No. 06-2170, 2007 U.S. App. Lexis 13373 (7th Cir.).

     No reasonable jury could find that officers lacked probable cause to arrest the plaintiff after they observed a suspect make several drug sales before and after meeting with the arrestee, based on information they had received from a confidential informant that the suspect was selling the drugs for a third party. O'Connor v. City of Philadelphia, No. 06-3029, 2007 U.S. App. Lexis 11291 (3rd Cir.).

     A police officer had probable cause to arrest a man for petit larceny based on statements from a security guard that he had seen him conceal some earmuffs in his jacket pocket. The officer had no basis to disbelieve the security guard's statement. Federal civil rights claims against the security guard were properly dismissed, as he did not act under color of state law. Prowisor v. Bon-Ton, Inc., No. 06-2213, 2007 U.S. App. Lexis 9661 (2nd Cir.).

False Arrest/Imprisonment: Mental Illness Commitment

     When the officer had reason to believe, at the time he detained a man for psychiatric evaluation, that he had talked about killing himself, had access to a gun, was about to be served with a divorce act, had pain medication, was under a therapist's care, and was thought to have been going to leave a "goodbye" note at his daughter's house, his actions were justified. The officer was not required to believe the detainee's statements contradicting information supplied to the officer by his friend. Palter v. City of Garden Grove, No. 05-56322, 2007 U.S. App. Lexis 13848 (9th Cir.).

False Arrest/Imprisonment: Warrant

     A "barebones" affidavit that did not provide a factual basis for probable cause, which was used to obtain an arrest warrant for a woman on charges of accessory after the fact to an alleged botched robbery and murder by her husband was insufficient to support qualified immunity for the defendants in her false arrest lawsuit. Spencer v. Staton, No. 06-30020, 2007 U.S. App. Lexis (5th Cir.).

     An arrestee placed into custody on the basis of an arrest warrant for another person, on which his name appeared as an alias, had been detained under a facially valid warrant. Despite the arrestee's assertion that he had repeatedly told police that he was not the person sought in the warrant, and that his name may have appeared there as a result of identity theft, his four nights in custody did not violate his constitutional rights under the circumstances. Alvarado v. Bratton, No. CV 06-7812, 2007 U.S. Dist. Lexis 37280 (C.D. Cal.).

Federal Tort Claims Act

     Secret Service officers who stopped a motorist based on an outstanding arrest warrant, and seized a bag including four prescription eyeglasses from his vehicle were within the definition of "any other law enforcement officer" in 28 U.S.C. Sec. 2680(c) of the Federal Tort Claims Act. The U.S. government, therefore, was protected from liability by this statutory provision barring liability for "detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer," on the motorist's claim concerning the alleged failure of the Secret Service to subsequently return the eyeglasses. Perez v. U.S., No. 06-CV-1508, 2007 U.S. Dist. Lexis 36843 (D.N.J.).

Firearms Related: Intentional Use

     If the plaintiff's version of events were believed, officers who allegedly pursued him without identifying themselves as police, shot him, beat him, and then shot him again were not entitled to qualified immunity, because the beating and shooting of a person who was already shot and was incapacitated, under these circumstances, would violate clearly established law. The officers, on the other hand, claimed that they had identified themselves as police and only shot him after he had shot at them a number of times, as well as denying that they beat him. Further proceedings were ordered, but claims against the State of Missouri were rejected on the basis of Eleventh Amendment immunity. Johnson v. Board of Police Commissioners, No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.).

     Officers who shot and killed a man who they believed was holding hostages inside his residence were entitled to summary judgment. A statement by a plaintiff's expert that it was "highly unlikely" that the decedent had been pointing a rifle at the officers at the time of the shooting was insufficient to create a genuine issue of material fact to require taking the case to a jury, when all officers at the scene testified that he had done so, and the medical examiner also expressed an opinion that the evidence supported the officers' version of the incident. The appeals court also found that it was not reasonable to infer from the locations of the bullets in the residence that the officers did not actually believe that there were any hostages and were firing indiscriminately. Lewis v. Adams County, No. 06-3893, 2007 U.S. App. Lexis 9872 (6th Cir.).

First Amendment

     Individual who posted on the Internet a video and audio recording of the warrantless search of a private residence and a related arrest was entitled to an injunction against state police interfering with the posting. It was reasonably likely that the First Amendment protected the posting even if the recording was illegally made and she had reason to know that. Jean v. MA State Police, No. 06-1775, 2007 U.S. App. Lexis 14813 (1st Cir.).

     "Street preachers" conducted demonstrations at the intersection of a public highway and a town street while holding up pictures of mutilated fetuses, and one of them was arrested for resisting arrest, stopping in a specified area, and demonstrating without a permit. Officers also threatened to arrest other demonstrators. A trial court found no First Amendment violation. An appeals court found that there was a genuine issue of disputed fact as to the motivation of the officers in stopping the demonstration and making the arrest. The appeals court found, on the basis of the record, that none of the six laws cited were applicable or valid time, place, or manner restrictions. The appeals court reversed summary judgment for the town, while upholding the denial of summary judgment to the arrestee and "street preachers'" organization, and ordered further proceedings. World Wide Street Preachers Fellowship v. Town of Columbia, No. 06-30294, 2007 U.S. App. Lexis 13117 (5th Cir.).

     A handicap access ramp leading to an abortion clinic was not a public forum for First Amendment purposes, despite protestors' claim that it encroached onto the public sidewalk. The demonstrators therefore were not entitled to conduct their protest on the ramp, which was constructed for purposes of complying with the Americans with Disabilities Act (ADA), rather than to "facilitate" First Amendment activity or commerce. Additionally, because the presence of the demonstrators would have interfered with the accessibility requirements of the ADA, it was reasonable for police to have prohibited them from entering onto the ramp. McTernan v. City of York, No. 4:07-CV-88, 2007 U.S. Dist. Lexis 36907 (M.D. Pa.).

     A man demonstrated on election day 2004 while dressed up in a costume as a terrorist and a sign stating "Vote Kerry" on one side and "Bush" with a red circle and a line through it over the name on the other side was told by police to remove his mask, a plastic item that resembled a machine gun, and two empty green ammunition bandoliers, or face arrest. These actions by the police were not aimed at suppressing the plaintiff's First Amendment protected political message, but rather on preventing public alarm because of elements of his costume that some might find threatening. It was a question for a jury, however, whether the restriction imposed was reasonable, narrowly tailored to serve a significant governmental interest, and left sufficient alternative opportunities for the plaintiff to express his message. Galibois v. Fisher, No. 04-cv-444, 2007 U.S. Dist. Lexis 34149 (D.N.H.).

Malicious Prosecution

     Even if the plaintiff's now-overturned conviction for armed robbery was based on the erroneous introduction of testimony about a station house eyewitness identification which was allegedly improperly conducted, it was the decisions of the prosecutor and trial judge, not the actions of the police officer, which caused the violation of the plaintiff's constitutional rights, so the officer could not be held liable. Additionally, because the officer's conduct with respect to the identification did not cause any violation of the plaintiff's rights, any alleged failure by the city to adequately train him on the subject of identifications did not cause a deprivation, and a judgment as a matter of law should be entered on his claims against the city. Wray v. City of New York, No. 05-3341, 2007 U.S. App. Lexis 14302 (2nd Cir.).

Off-Duty/Color of Law: Personal Action

     Off-duty police officer's alleged conduct in entering the plaintiff's restaurant and seizing leased equipment was not governmental action for purposes of a federal civil rights lawsuit. The officer's actions were allegedly arranged with his uncle, who owned the building that the restaurant leased, and the officer acted purely as a private person. At the time of the incident, he was not in uniform, did not assert his police authority, and was motivated by his role as the nephew of the building owner. Mitchell v. Gieda, No. 06-2127, 2007 U.S. App. Lexis 2644 (3rd Cir.).

Public Protection: Accident Victims

    The estates of 4 of 12 students who died, and a number of students injured, in the collapse of a bonfire stack at a Texas state university, claimed that university officials were liable for their deaths and injuries. In a prior appeal, overturning a dismissal of the plaintiffs' federal civil rights claim, the U.S. Court of Appeals for the 5th Circuit found that if the university officials acted with deliberate indifference to the risk of harm the bonfire presented, there could be liability under a "state-created danger" theory. Scanlan v. Texas A&M University, 343 F.3d 533 (5th Cir. 2003). On further appeal, the court upheld summary judgment dismissing the plaintiff's claims on the basis that the defendants were not on fair notice that liability could be based on that theory, since prior caselaw from neither the Fifth Circuit nor the United States Supreme Court had adopted it. The defendants were therefore entitled to qualified immunity. Breen v. Texas A & M Univ., No. 04-40712, 2007 U.S. App. Lexis 9371 (5th Cir.).

Public Protection: Motoring Public and Pedestrians

     Officers were entitled to qualified immunity for failing to prevent an illegal drag race that resulted in injuries when a car crashed into a crowd of spectators. While the officers allegedly arrived on the scene approximately an hour before the race began, and were alleged to have told participants to "go ahead with the race" and that they were not there to arrest anyone, there could be no liability under either a "state-created danger" theory or a "direct injury" theory. The plaintiffs failed to show, for purposes of the "direct injury" theory of liability, that the officers acted for the purpose of causing harm, even though the alleged conduct, if true, demonstrated "incredibly poor judgment" by the officers. For purposes of the "state-created danger" theory of liability, the court found that a prior decision involving a death in the same drag race, Jones v. Reynolds, #04-2320, 438 F.3d 685 (6th Cir 2006), was controlling. In that prior decision, the appeals court found that there was no evidence that the officers knew or had reason to know that the decedent "specifically was in any more danger than any other citizen in the area that evening," and therefore could not be said to have placed the decedent in the danger which resulted in her death. This same analysis, the court found, applied to the claims of the plaintiffs, who were allegedly injured by the same car that killed the decedent.  Draw v. City of Lincoln Park, No. 06-1959, 2007 U.S. App. Lexis 14707 (6th Cir.).

     City was not liable for the death of an elderly motorist struck by a number of vehicles while trying to cross a highway on foot to get back to his van, which had run out of gas. He was attempting to do so before the city towed his vehicle under a program it had commenced under which it attempted to tow stalled vehicles from city freeways after a few minutes in order to prevent obstacles to the flow of traffic. A federal trial court rejected the plaintiff estate's argument that the towing program violated the equal protection rights of elderly and disabled drivers. Such motorists, the court found, were not a protected class for equal protection purposes, and there was no fundamental right to be free from having a disabled vehicle towed from the highway. Estate of Kahng v. City of Houston, No. H-07-0402, 2007 U.S. Dist. Lexis 30922 (S.D. Tex.).

Racial Discrimination: Racial Profiling

     African-American motorist's claim that he was stopped for having a broken side-view mirror on the basis of racial profiling and selective enforcement, and that the officer acted on the basis of a county policy, was sufficient to provide notice of the basis of his lawsuit. Aikman v. County of Westchester, No. 04 Civ. 7543, 2007 U.S. Dist. Lexis 42014 (S.D.N.Y.).

     Arrestee failed to show that police officer or police department engaged in intentional racial discrimination when they arrested him and conducted a visual body cavity search at the police station, based on his fitting the description of a person allegedly involved in drug dealing. The officer acted on the basis of a description from a reliable informant, and had the informant positively identify the plaintiff prior to carrying out his arrest. Nothing showed that these actions were based on race. Harrison v. Christopher, No. 03-243, 2007 U.S. Dist. Lexis 38224 (D. Del.).

     African-American college student placed under arrest following an armed bank robbery failed to show that officers' actions constituted racial discrimination. His clothing matched a description of the clothing worn by the robber, and the auto license plate on a dispatch concerning the robbery matched the license plate of a student at the college. Godette v. Stanley, No. 05-11354, 2007 U.S. Dist. Lexis 35807 (D. Mass.).

Search and Seizure: Home/Business

     A police detective was entitled to qualified immunity on a claim that he had unlawfully made a warrantless entry into an apartment. When he went to the apartment to investigate a suspicion that the tenant's son had been involved in an armed robbery, he saw that the door was slightly ajar, and the door also had marks that could have been made by the use of burglary tools. This, and the fact that footsteps were heard from inside made it reasonable for the detective to believe that a break-in was occurring, providing exigent circumstances to enter. Dockery v. Doyle, No. 06-15513, 2007 U.S. App. Lexis 12279 (11th Cir.).

Search and Seizure: Search Warrant

     A DEA agent who was alleged to have intentionally misled a federal magistrate into issuing a warrant to search the residence of a man subsequently arrested and prosecuted on a drug offense was entitled to summary judgment in the arrestee's federal civil rights lawsuit. The cocaine found during the search was the basis for a criminal conviction on possession of the drug with intent to distribute it, and the claim that the information in the affidavit for the warrant was "stale" or that the DEA agent made material misrepresentations to obtain the warrant had already been rejected in a decision upholding the conviction.  Baxter v Crawford, No. 06-15375, 2007 U.S. App. Lexis 11935 (11th Cir.).

Search and Seizure: Vehicle

****Editor's Case Alert****

     U.S. Supreme Court rules that a passenger in a car subjected to a traffic stop by a police officer is seized for Fourth Amendment purposes, as much as the driver is, and therefore may challenge the constitutionality of the stop. While the case arose in the context of a criminal prosecution, its reasoning would also be applicable in a federal civil rights lawsuit brought under the same circumstances. Brendlin v. California, No. 06-8120 127 S. Ct. 2400 (2007).

Strip Search

     A reasonable police officer would not have understood at the time of the incident (April of 2001) that a strip search of the arrestee in his motel room, based on a suspicion that he was concealing drugs, violated his constitutional rights. The officer was therefore entitled to qualified immunity, and a federal appeals court overturns an award of $1 in nominal damages to the plaintiff (already reduced to that amount by the trial court from a jury award of $35,000). In a suit against a city and police officers for alleged civil rights violations arising from a strip search of plaintiff in his motel room, denial of qualified immunity for defendant-officer is reversed where a reasonable officer in defendant's position would not have understood that the strip search of plaintiff in his motel room would violate his constitutional rights. The strip search was not conducted in public view, and the court found that standards for privacy and hygiene "clearly were met" since the officers were the same sex as the arrestee, and the officer wore a sanitary latex glove while conducting it. Richmond v. City of Brooklyn Ctr., No. 05-3770, 2007 U.S. App. Lexis 14710 (8th Cir.).

Wiretapping, Video Surveillance, and Internet Legal Issues

****Editor's Case Alert****

     Target of government investigation was entitled to a preliminary injunction barring federal government agents from compelling his Internet service provider (ISP) to disclose the contents of his email without a warrant, notice, or a hearing. Such a disclosure would violate his rights under the Fourth Amendment, and a federal statute. A person retains a reasonable expectation of privacy as to the content of e-mail, even though they are stored with, sent, or received through a commercial ISP. The fact that such emails might be screened to exclude spam, viruses, and child pornography did not remove that reasonable expectation of privacy. The court did state that, if the defendant government could demonstrate factually that the plaintiff had waived his expectation of privacy in relation to the ISP, then disclosure of the emails through a mere notice to the ISP would be allowable. Warshak v. US, No. 06-4092, 2007 U.S. 14297 (6th Cir.).

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     Fraud: "Fraudulent Online Hotel Booking" By Mike Hannah, Gisela Bichler, and John Welter, 76 FBI Law Enforcement Bulletin No. 5, pgs. 1-8 (May 2007). "Law enforcement agencies can successfully address fraudulent booking of hotel rooms through the Internet."

     Homeland security website: The Justice Dept. has created a National Security Resources website for the criminal justice community, at: www.nationalsecurityresources.gov/

     Identify Theft: "The Social Security Card Application Process: Identity and Credit Card Fraud Issues" By Richard A. Ballezza, 76 FBI Law Enforcement Bulletin No. 5, pgs. 11-15 (May 2007). "Suspects have attempted to exploit the social security card application process."

     Identity Theft: Combating Identity Theft: A Strategic Plan. On April 23, 2007, Attorney General Alberto R. Gonzales and Federal Trade Commission Chairman Deborah Platt Majoras announced the release of the President's Identity Theft Task Force report Combating Identity Theft: A Strategic Plan. The reports contains recommendations designed to strengthen the efforts of federal, state, and local law enforcement officers; educate consumers and businesses on deterring, detecting, and defending against identity theft; assist law enforcement officers in apprehending and prosecuting identity thieves; and increase the safeguards employed by federal agencies and the private sector with respect to the personal data with which they are entrusted.

     Protest Activities: "Time, Place, and Manner: Controlling the Right to Protest" By Martin J. King, 76 FBI Law Enforcement Bulletin No. 5, pgs. 20-32 (May 2007)."Courts have recently reconciled security-based restrictions with the right to protest."

     Statistics: Medical Examiners and Coroners' Offices, 2004. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Presents key findings from the 2004 Census of Medical Examiners and Coroners’ (ME/C) Offices. This special report describes the medicolegal investigation of death in the United States. It provides an overview of the personnel, budgets, and workload of these offices by type of office and size of jurisdiction. It also includes information on the number of unidentified human decedents handled by ME/C offices. The report examines record keeping practices and use of national databases for unidentified remains. Detailed data tables on topics covered in this report are available on the BJS website. Highlights include the following: About 2,000 medical examiners and coroners' (ME/C) offices provided death investigation services across the United States in 2004. In a typical year ME/C offices reported that they handled about 4,400 unidentified human decedents of which about 1,000 remained unidentified after one year. Nearly 1 million human death cases were referred in 2004; about 500,000 accepted. 06/07 NCJ 216756 Press release | Acrobat file (337K) | ASCII file (34K) | Spreadsheets (zip format 60K)

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

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