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Assault and Battery: Baton/Nightstick

     Police officer was not entitled to summary judgment on claim that he used excessive force against arrestees when it was possible for a jury to find that he struck them with a baton after they surrendered, and there was a genuine issue of fact as to whether he acted with malice or bad faith in doing so. Baker v. City of Hamilton, No. 05-4390, 2006 U.S. App. Lexis 31056 (6th Cir.).

Assault and Battery: Handcuffs

     Arrestee failed to show that an officer used excessive force against her in handcuffing her, and the failure to show that any officer violated her rights barred any claim against the city for alleged inadequate training as to how to handcuff disabled arrestees. The record in the case also showed that the county's policies regarding the booking/fingerprinting procedures for disabled arrestees was adequate. Calvi v. Knox County, No. 06-1843, 2006 U.S. App. Lexis 30276 (1st Cir.).

Assault and Battery: Physical

     Federal appeals court overturns summary judgment for defendants on claims for excessive force against arrestee, because there was a genuine issue of fact as to whether they had beaten him severely after he had already been subdued, relieved of any weapons, and handcuffed. Arrington v. U.S., No. 05-5263, 2006 U.S. App. Lexis 32026 (D.C. Cir.).

     Arrestee's conviction for trespassing, based on a guilty plea, did not bar him from pursuing an excessive force claim against two of the arresting officers, who he alleged pushed his face into a sidewalk at a time when he was not resisting them and was intoxicated. Summary judgment was granted, however, as to a third officer and the municipality. Smith v. Jackson, No. CV-06-12, 2006 U.S.Dist. Lexis 85947 (D. Maine).

Defenses: Absolute Immunity

     Plea bargaining policy of prosecutor's office under which no plea bargaining was allegedly allowed unless the district attorney rather than the judge selected the exact sentence imposed could not result in liability for the district attorney or presiding judge. Engaging in plea bargaining is part of the prosecutor's decision-making concerning whether to prosecute, which is protected by absolute immunity, and the defendant judge was entitled to absolute judicial immunity. Miller v. County of Nassau, No. 06-cv-4347, 2006 U.S. Dist. Lexis 90329 (E.D.N.Y.).

Defenses: Indemnification

     City had no obligation under Pennsylvania law to indemnify a police officer found liable for excessive use of force which did not occur in connection with an arrest, but which instead was simply an assault and battery of the plaintiff by the officer for the intentional purpose of harming and punishing him. Under the statute, there is no duty for a municipality to indemnify an officer for conduct which amounts to a crime or willful misconduct. Keenan v. City of Philadelphia, No. 2272, 2006 Phil. Ct. Com. Pl. Lexis 439 (Philadelphia County, Pa.).

Defenses: Statute of Limitations

     The fact that the plaintiff had filed a prior lawsuit concerning the same incident did not toll (extend) the applicable statute of limitations, when the plaintiff never obtained service of process over the defendants in the prior action. Her second lawsuit, therefore, was barred by the statute of limitations, based on when it was filed. Geary v. City of Snellville, No. 06-12898, 2006 U.S. App. Lexis 27611 (11th Cir.).

Disability Discrimination

     Officer was not entitled to qualified immunity on claim that he used excessive force in shooting and killing a mentally ill youth as he walked toward the officer while screaming because, if the facts were as alleged, it was not reasonable to shoot an unarmed person under these circumstances. The court rejects, however, a claim for violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.S. §§ 12131-12165, holding that it does not apply to a police officer's actions in response to reported disturbances. County's 16-hour training course teaching officers how to relate to mentally ill persons, combined with the lack of any incidents in which county officers violated the rights of such persons, precluded success on a claim for inadequate training. Rada v. Miami-Dade County, Florida, Case No. 05-23126, 2006 U.S. Dist. Lexis 89510 (S.D. Fla.).

     Shooting and killing of mentally ill man inside home, after he stabbed one of two deputies who came there to check on him, did not violate Title II of the Americans with Disabilities Act (ADA). The administrator of his estate failed to show that the decedent was denied governmental services "by reason" of his disability of mental illness. Officers were also entitled to qualified immunity for their entry into the home because they had a reasonable belief that their entry was lawful. Buchanan v. State of Maine, No. 06-1466, 2006 U.S. App. Lexis 28352 (1st Cir.).

Domestic Violence

     Police officer was not liable to domestic violence victim for failing, while filling out paperwork to charge her ex-boyfriend with violation of a protective order, to check off box to keep her address confidential. The boyfriend, after his release from prison, allegedly subsequently obtained a copy of the paperwork containing her current address, and the victim accordingly feared that he would harm her, so she allegedly felt compelled to move to a new address. The plaintiff failed to show, as required for liability for violation of her right to privacy, that the officer acted with deliberate indifference to her rights. Hanigan v. City of Kent, Case No. C06-176, 2006 U.S. Dist. Lexis 89489 (W.D. Wash.).

Expert Witnesses

     In lawsuit claiming that officers used excessive force, including a chokehold, in attempting to place a man under arrest, resulting in his death, trial court found not to have abused its discretion in barring expert testimony concerning excessive force. The Plaintiff sought to introduce such testimony by a police department Office of Professional Standards inspector and a police sergeant who investigated the claim of excessive force during the arrest, and to ask them whether the officer used excessive force or violated departmental General Orders, policies or procedures. The appeals court upheld a trial court ruling that the "probative value" of such evidence was "substantially outweighed" by the danger of unfair prejudice, and that it would not assist the jury in reaching a decision, but rather would cause "confusion." Court also upholds ruling barring evidence concerning the department's General Orders on the appropriate use of force, since the issue of whether or not the officer violated a departmental regulation was different from whether his use of force was unconstitutional. Thompson v. City of Chicago, No. 04-3177, 2006 U.S. App. Lexis 31138 (7th Cir. December 20, 2006)

False Arrest/Imprisonment: No Warrant

     Officer had probable cause to arrest a woman for attempted burglary of her ex-girlfriend's home, based on the ex-girlfriend's phone call to 911, her statement to the officer that the arrestee had attempted to break into the residence, and physical damage visible on the door. Williams v. City of Homestead, Florida, No. 06-11092, 2006 U.S. App. Lexis 27231 (11th Cir.).

     Officer had probable cause to arrest a nightclub owner for allegedly interfering with efforts to shut down the club and disperse the crowd of patrons after a disturbance which included several fights in and around the club, including gunfire. Freeman v. Town of Eatonville, Florida, No. 05-12813, 2006 U.S. App. Lexis 27120 (11th Cir.).

     Officers were not entitled to qualified immunity on false arrest claims of bar patrons they arrested in response to another patron's fictitious story that he had been robbed in the bar's bathroom when they placed the plaintiffs under arrest without first asking the complaining patron to identify them as the supposed robbers. While they ultimately spoke to the complaining patron, and released the arrestees after finding that they did not match the description of the non-existent robbers, a reasonable jury could find that the detention lasted longer than necessary as an "investigatory stop," and that there was no probable cause for an arrest at the time. Jernigan v. City of Royal Oak, No. 05-2245, 2006 U.S. App. Lexis 27279 (6th Cir.).

     Despite disputes over whether the plaintiff had told officers that someone pointed a gun at her or "held up a shiny object toward her" which she believed might have been a gun, a reasonable jury would have to find that the plaintiff had reported a crime, so that the officers had probable cause to arrest her for filing a false report after they determined that the incident did not occur. Porter v. City of Auburn, No. 05-35041, 2006 U.S. App. Lexis 27474 (9th Cir.).

Firearms Related: Intentional Use

     Officer acted objectively reasonably in shooting a man at the scene of a domestic disturbance who failed to drop the knife he was holding until the officer's third order to do so, and then ran towards him, attempting to escape through a poorly lit area outside the residence. Under the circumstances, in which the man had threatened to kill his wife, and the elapsed time between him dropping the knife and running towards the officer was approximately two seconds, the officer could believe that the man was a threat to the safety of the officer and the wife. Butler v. City of Tulsa, No. 06-5078, 2006 U.S. App. Lexis 27332 (10th Cir.).

     Officer who repeatedly attempted to negotiate with a suspect and get him to drop his weapon before finally shooting and killing him was entitled to summary judgment because the facts showed no violation of the decedent's constitutional rights. DeMerrell v. City of Cheboygan, No. 05-2325, 2006 U.S. App. Lexis 27174 (6th Cir.).

     Despite a prior jury verdict in a federal civil rights lawsuit in favor of officers who fatally shot a man twenty-two times as he was attempting to evade arrest, the officers could still possibly face liability for negligence under California state law for the same incident on a theory that they unnecessarily put themselves in the way of harm, and therefore had to "shoot their way out." The jury verdict in the federal civil rights case only dealt with the constitutionality of the use of deadly force under the circumstances that existed at the time of the shooting, and did not decide the question of whether the officers' prior actions constituted negligence. Hernandez v. City of Pomona, No B182437, 2006 Cal. App. Lexis 1925 (2nd Dist.).

     Simply because there was no violation of the Fourth Amendment in shooting and killing a suspect that an officer reasonably could have believed was armed and was holding a person against her will did not mean that the appeals court could say that there were no set of facts from which the plaintiff could establish a claim for either violation of the Americans with Disabilities Act, 42 U.S.C. Sec. 12131-12134,  based on the suspect's mental illness or for race discrimination. The appeals court, therefore, ordered further proceedings on both claims. Waller v. City of Danville, Virginia, No. 06-1107, 2006 U.S. App. Lexis 30799 (4th Cir.).

First Amendment

     Liquor establishment's owner failed to show that state troopers and city police officers harassed him and his business because of his support for the incumbent sheriff and personal friendship with the city police chief, who the defendants opposed. The court ruled that the personal friendship did not qualify as protected conduct for purposes of asserting a First Amendment claim, and that the plaintiffs failed to present any evidence that the defendants even knew about the business owner's political support for the sheriff. Smith v. Michigan State Police Troopers, No. 1:05-cv-64, 2006 U.S. Dist. Lexis 78780 (W.D. Mich.).

     Two undercover police officers who arrested a man for offering to sell them basketball tickets outside a university arena did not violate his First Amendment rights. The plaintiff had admitted to being a "peddler" as defined by a county ordinance by pleading guilty to criminal charges made against him, and the ordinance, which merely required that such peddlers obtain a permit, was not an unconstitutional restraint on protected First Amendment activity, but was instead merely aimed at regulating traffic to advance safety in a public area. Wilson v. Lexington-Fayette Urban County Government, No. 05-5923, 2006 U.S. App. Lexis 25617 (6th Cir.).

     Police had probable cause to arrest protestors after they had given a minimum of four orders to disperse which the crowd did not comply with. The federal appeals court ruled that the officers need not have individualized suspicion that each and every member of the crowd had heard the orders, and that it was sufficient that they had a reasonable belief that a "fair probability" existed that they had. Lyons v. City of Seattle, No. 04-35808, 2006 U.S. App. Lexis 31707 (9th Cir.).

     Police officers had probable cause to arrest members of a family and other persons who allegedly failed to comply with their orders to clear a sidewalk while attending a crowded outdoor festival. The arrests did not violate either the Fourth Amendment or the arrestees' First Amendment rights. Gomez v. City of Whittier, No. 04-56944, 2006 U.S. App. Lexis 29423 (9th Cir.).

Governmental Liability: Policy/Custom

     In the absence of any showing that a police department had a custom of indifference to or acceptance of the violation of individuals' rights, it could not be held liable for the alleged false arrest of a customer of a cell phone store detained by security guards at the business on an accusation that he was attempting to have a stolen cell phone activated and was "trespassing." The security guards were also found not to be acting under color of state law in transporting the arrestee to the police station, but rather under a merchant's right under Michigan state law to control access to their business. Durante v. Fairlane Town Center, No. 05-1113, 2006 U.S. App. Lexis 26128 (6th Cir.).

     Police officer arrested under a warrant on charges of rape, attempted murder, and second degree kidnapping failed to show that the city had any official custom or policy which led to his allegedly false arrest, so there could be no municipal liability. Further, the discrepancies in the warrant application that the plaintiff complained of were not essential to the finding of probable cause and issuance of the warrant, so the sergeant who obtained the warrant was also entitled to summary judgment. Daniel v. Compass, No. 05-31157, 2006 U.S. App. Lexis 30605 (5th Cir.).

     Man allegedly arrested for creating a public disturbance and beaten by officers when he was actually having an epileptic seizure failed to present any evidence of a policy or custom of the city which allegedly caused these actions, or that the city's training of or supervision of officers demonstrated deliberate indifference to his rights. Adams v. City of Camden, No. 05-779, 2006 U.S. Dist. Lexis 82471 (D.N.J.).

Interrogation: Minors

     Because a ruling in a federal civil rights lawsuit that a minor's confession to involvement in the murder of his mother would necessarily imply the invalidity of his conviction, under a plea bargain to plead "no contest", of accessory after the fact, he was barred from pursuing his claim for coercive interrogation when the conviction had not been set aside or reversed, under the principles established in Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994). Federal appeals court rules that the adjudication in juvenile court, while not a criminal proceeding under state law, was properly viewed as the "functional equivalent" of a criminal proceeding for purposes of the application of the rule in Heck. Morris v. City of Detroit, No. 06-1367, 2006 U.S. App. Lexis 30948 (6th Cir.).

Procedural: Discovery

     In arrestee's lawsuit claiming that a racially motivated stop of a car he had been riding in had resulted in his false arrest on drug charges, the plaintiff was not entitled to discovery of information about other members of the police department, aside from the two defendants, after his claims against the township had been dismissed. The plaintiff was therefore able to proceed with discovery of information concerning the defendant officers, including internal affairs files, but was barred from obtaining the requested information on other members of the police department or regarding the department's procedures and policies. Trial court also enters an order limiting the use of the discovery material to necessary disclosure to the plaintiff's lawyer and experts. Jones v. Derosa, Civil Action No. 00-3746, 2006 U.S. Dist. Lexis 80071 (D.N.J.).

Property

     The county's lack of an official policy on conducting an inventory of personal property found in an impounded vehicle or on what to do when several parties claimed ownership over the property or the vehicle did not show deliberate indifference by the county to the rights of property owners. Further, even if a deputy's actions resulted in the loss or theft of personal property from the impounded car and trailer, as alleged, he was entitled to qualified immunity because the law on the issues presented was not clearly established at the time of the incident. Duvalt v. Taggart, No. 05-35086, 2006 U.S. App. Lexis 27253 (9th Cir.).

Public Protection: 911 Phone Systems

     New York highest court rejects claim that City of New York was liable for failing to have an ambulance arrive at an office where a man was having a stroke until 35 minutes after his co-worker made a 911 call. The city's alleged slowness in responding to the 911 call placed by the co-worker, the court found, does not fit within an exception to the general rule of non-liability where an injured person has a "special relationship" with the city. The court found that no such special relationship existed, because the injured man, who was the plaintiff, did not have any direct contact with, and did not rely on any undertaking by the city's 911 operator. Laratro v. City of New York, No. 183 2006 N.Y. Lexis 3750.

Pursuits: Law Enforcement

     County and police officer were not liable for death of passenger in vehicle that was followed for 15 miles at speeds of over 100 miles per hour without the officer's unmarked vehicle having its siren activated. During the pursuit, various traffic laws were disobeyed, and the passenger's death occurred when the car in which he was riding crashed. Because the officer lacked any intent to harm the occupants of the pursued vehicle, the high-speed pursuit did not violate the Fourteenth Amendment. White v. Polk County, No. 06-12975, 2006 U.S. App. Lexis 29312 (11th Cir.).

Race/National Origin Discrimination

     Village violated the rights of mostly Latino day laborers by its aggressive ticketing of commercial vehicles in a parking lot where they gathered to seek work from contractors, and other alleged harassment, including maintaining a police presence there, and actions which had the effect of preventing the plaintiffs from getting work. The court found that the municipality violated the plaintiffs' equal protection rights by engaging in intentionally discriminatory enforcement of otherwise facially neutral laws. Doe v. Village of Mamaroneck, No. 06 Civ. 3243, 2006 U.S. Dist. Lexis 86249 (S.D.N.Y.).

Search and Seizure: Home/Business

     Officers did not violate the rights of a barbershop owner, a barber, or customers of the business when they came into the premises with their guns drawn in a "low-ready" position after being told that a suspect sought in a shooting had run into the barbershop. Under the circumstances, their brief detentions of the occupants of the business or of a barber standing outside the shop did not violate the Fourth Amendment. The officers reasonably believed that they needed to protect themselves against potential danger. Halsell v. Etter, No. 05-4577, 2006 U.S. App. Lexis 31216 (6th Cir.).

     Exigent circumstances supported an officer's entry without a warrant in a home while chasing the homeowner's son, who he allegedly saw selling drugs, when he was motivated by a desire to apprehend the suspect and protect the occupants of the residence. The officer was also justified in arresting the homeowner for allegedly pushing the officer when he entered the home. Sargent v. Idle, No. 06-1780, 2006 U.S. App. Lexis 30144 (7th Cir.).

Sexual Assault and Harassment

     Even though police officer initially encountered woman at police station where she was filling out paperwork concerning accident, he did not act under color of state law in motioning for her to come and see him, or in subsequently calling her on her cell phone and suggesting that they have an encounter of a "romantic" nature. At no point during these interactions did he state that he wanted to discuss official police business, or assert police authority, so that he and the city were entitled to dismissal of constitutional claims for violation of the right to privacy and equal protection. Federal trial court could properly, however, keep jurisdiction over state law claim for intentional infliction of emotional distress arising from the officer's actions. Chavez v. Guerrero, No. 06C2180, 2006 U.S. Dist. Lexis 91475 (N.D. Ill.).

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     Statistics: Compendium of Federal Justice Statistics, 2004 Presents national-level statistics describing characteristics of persons processed and the distribution of case processing outcomes at each major stage of the Federal criminal justice system. This annual report includes investigations by U.S. attorneys, prosecutions and declinations, pretrial release and detention, convictions and acquittals, sentencing, appeals, and correctional populations. New this year are statistics on fugitive investigations by the U.S. Marshals Service. This is an electronic only document. Highlights include the following: * During 2004, 126,878 suspects were arrested by Federal law enforcement agencies for violations of Federal law. *During 2004, U.S. Attorneys initiated criminal investigations involving 130,078 suspects, and they concluded their investigations of 128,518. * The number of offenders on community supervision increased by 29%, from 84,801 during 1990 to 108,976 during 2004. 12/06 NCJ 213476  Full report: Acrobat file (3M) ASCII file (185K) | Spreadsheets (zip format) (83K)

     Statistics: Intimate Partner Violence in the U.S., by Shannan Catalano, Ph.D., Bureau of Justice Statistics Statistician. A report showing that the "intimate partner" violence rate has declined since 1993. In 1993, nonfatal intimate partner violence was 5.8 victimizations per 1,000 U.S. residents 12 years old and older. By 2004, the report states, this rate had fallen to 2.6 victimizations per 1,000 individuals. The report also states that the number of intimate partner homicide victims has declined since 1993, with 1,571 females murdered by intimates in 1993, compared to 1,159 during 2004, a 26 percent decline. The number of males murdered by partners during 1993 was 698, compared to 385 in 2004, a 45 percent decline. An intimate partner is defined in the report as a current or former spouse, girlfriend, boyfriend, or same-sex partner. The entire report is also available in .pdf format. 12/06.

     Training: In partnership with Bureau of Justice Assistance (BJA), the International Association of Chiefs of Police (IACP) has developed a new Volunteers in Police Service (VIPS) training course, "VIPS and Disaster Response." Responding to a disaster can strain a law enforcement agency's limited resources. Recent disasters have shown that law enforcement volunteers can play a valuable role in supplementing disaster preparation, response, and recovery efforts. This no-cost training provides information about integrating volunteers into a law enforcement agency's plan for natural disasters, public health crises, and other emergencies. Participants will come away with specific information about disaster preparedness, the role of volunteers during disasters, CERT, and pandemic response. Visit www.policevolunteers.org to register and view more information. The VIPS Program has released a new version of its Volunteering with Law Enforcement: A Citizen's Guide brochure. This brochure includes space for a law enforcement agency to add their contact information and can be used to recruit volunteers. Law enforcement agencies can request bulk copies of the brochure here.

    Websites: The Bureau of Justice Assistance (BJA) has developed an online information resource on Preparing the Justice System for a Pandemic Influenza and Other Public Health Emergencies. Resources recently added include online presentations that detail two different perspectives of pandemic influenza preparedness. Also visit www.pandemicflu.gov.

     Websites: The Council of State Governments (CSG) has announced the launch of its Justice Center, a national resource center on criminal justice policy. The center will continue to coordinate projects on improving the response to people with mental illness in contact with the criminal justice system, addressing prisoner reentry issues, and promoting justice reinvestment strategies. It will also explore such issues as alcohol-related emergency room admissions and housing concerns as they relate to the justice system.

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

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