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Assault and Battery: Physical

     Federal appeals court upholds $1.3 million award of compensatory and punitive damages against police officers for allegedly using excessive force against two arrestees. Evidence was sufficient for a reasonable jury to arrive at a finding of liability, and the defendants failed to preserve for appeal any question about whether the compensatory damages awarded were excessive. The punitive damages award of $250,000 against each of the four defendants was not excessive under the circumstances if the jury believed the plaintiffs' version of the incident, amounting to an unjustified assault by the officers. Casillas-Diaz v. Palau, No. 04-1303, 463 F.3d 77 (1st Cir.).

Attorneys' Fees & Costs: For Defendants

     Trial court abused its discretion in denying an award of costs to a city after it was granted summary judgment in a lawsuit brought by an arrestee attempting to collect on a civil rights judgment against a former police officer. The city was not liable for the officer's conduct in ransacking the plaintiff's apartment because he was not then acting within the scope of his employment, and the plaintiff was therefore not entitled to enforce the judgment against the city. While the appeals court upholds an exception to Federal Rule of Civil Procedure 54(d)(1) allowing losing indigent parties to avoid paying costs, the losing plaintiff in this case failed to adequately show that she would be unable to pay such costs to the city, and had not even yet attempted to discover what assets the ex-police officer (now in prison), against whom she has a $175,000 judgment, might have against which she could collect. Rivera v. City of Chicago, No. 06-1318, 2006 U.S. App. Lexis 28839 (7th Cir.).

Defenses: Qualified Immunity

     Questions concerning whether or not a man having a seizure in his home was conscious and whether or not he acted aggressively towards officers who came there to assist him and wound up handcuffing him required further proceedings in trial court, as the appeals court could not decide an issue of qualified immunity based on such disputed facts. McKenna v. City of Royal Oak, No. 05-2650, 2006 U.S. App. Lexis 29191 (6th Cir.).

     While an arrestee stated a valid claim for unlawful retaliation by alleging that an officer seized his camera in response to his exercise of his First Amendment rights by filing a lawsuit against police, the officer was still entitled to qualified immunity because the right allegedly violated was not clearly established at the time of the incident. Skoog v. County of Clackamas, No. 04-35087, 2006 U.S. App. Lexis 28683 (9th Cir.).

     Federal appeals court could not proceed with appeal of denial of qualified immunity to university police officer sued for the shooting death of a student because there were outstanding factual disputes concerning the circumstances of the shooting.  McKinney v. Duplain, No. 05-3812, 463 F.3d 679 (7th Cir. 2006).

     While a plaintiff in a federal civil rights lawsuit does not have a burden of specifically showing the violation of a clearly established law in their complaint to avoid dismissal on the basis of a qualified immunity defense, when the complaint, despite being adequate to give notice of the plaintiff's claim under Federal Rule of Civil Procedure 8, does not provide the necessary facts for a determination of the validity of a qualified immunity defense, the trial court should grant a motion by the defendants requiring that the plaintiff submit a more specific statement concerning the facts of the case. Thomas v. Independence Township, No. 05-2275, 463 F.3d 285 (3d Cir. 2006).

Defenses: Statute of Limitations

     While plaintiff's claim that denial of access to physical evidence which was the basis for his murder conviction stated circumstances which might violate his constitutional rights, his claim was time-barred under a two-year statute of limitations which began to run on the date that a state court denied his request for access to the physical evidence for purposes of DNA testing. Savory v. Lyons, No. 06-1296 (7th Cir. November 29, 2006).

Disability Discrimination

     Brother of mentally ill man shot to death by officers inside his home failed to show that the officers used excessive force or violated his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131-12165 by failing to reasonably accommodate his mental illness. The officers only entered the home to check on the mentally ill man's welfare and safety, and he was only shot after he had repeatedly stabbed one of the two officers present. Under these circumstances, the officers were reasonable in believing that their actions were legal, and the lawsuit failed to show that the decedent had been denied governmental services "by reason of" a disability. Buchanan v. State of Maine, No. 06-1466, 2006 U.S. App. Lexis 28352 (1st Cir.).

Dogs

     Officers could be found to have unconstitutionally seized a man by ordering a dog to find and bite him when he was accused of minor traffic misdemeanor offenses, there was no evidence that he posed a threat to their safety, and he was allegedly not trying to evade arrest by running away. Additionally, the question of whether or not the officers were looking for this specific suspect was irrelevant to the issue of whether or not they seized him for Fourth Amendment purposes, so long as they acted intentionally, and his seizure by the dog was the result of their actions. Rogers v. City of Kennewick, No. 05-35300, 2006 U.S. App. Lexis 27064 (9th Cir.).

Domestic Violence

     Man arrested for domestic violence failed to show that law enforcement officers caused his bail to be set at an allegedly excessive amount of $1 million in violation of the Eighth Amendment. While the officers had engaged in a discussion of the need for a higher than average bail because of their belief that the arrestee could post the usual default amount, and because the alleged victim was in fear for her safety, the bail amount was ultimately set by a Bail Commissioner. While a federal appeals court disagreed with the trial court's conclusion that the $1 million was not excessive, it found that the plaintiff failed to produce evidence on the reason for the amount, failing to create a viable issue as to whether it was unconstitutionally enhanced. Galen v. County of Los Angeles, No. 04-55274, 2006 U.S. App. Lexis 27465 (9th Cir.).

False Arrest/Imprisonment: No Warrant

     Undisputed facts showed that officers had a reasonable basis to stop a motorist for traffic violations, and then had probable cause for his arrest because he assaulted them and then attempted to escape.  Jackson v. City of Joliet, No. 06-2065, 2006 U.S. App. Lexis 25867 (7th Cir.).

     Arrestee could not establish a claim for false imprisonment when he head-butted the officer during the incident, providing probable cause for his arrest for harassment in the second degree. Lynn v. New York, No. 2004-11048 (Claim No. 107316), 2006 N.Y. App. Div. Lexis 12285 (A.D. 2nd Dept.).

     There was probable cause to arrest man who allegedly offered money for oral sex to female officer pretending to be a prostitute as part of a "reverse sting" operation. An actual exchange of money was not required for such an arrest. Lans v. Stuckey, 05-16538, 2006 U.S. App. Lexis 26118 (11th Cir.).

     Arresting officer reasonably relied on information from fellow officer in arresting reporter accompanying demonstrators surrounding a trade summit in Miami, Florida. She was with a group of demonstrators matching the description of people who had been throwing rocks. The reporter herself did not know what the group of protestors had been doing right before she joined them for the purpose of interviewing them. The fact that the charges were later dropped against the reporter did not alter the determination that the officer was entitled to qualified immunity for initially arresting her. Delgado v. Miami-Dade County, No. 05-23061, 2006 U.S. Dist. Lexis 77572 (S.D. Fla.).

False Arrest/Imprisonment: Mental Health Commitment

     Officer was not entitled to summary judgment on allegedly mentally ill woman's claim that he violated her clearly established constitutional rights by forcing her to involuntarily report to a hospital for a mental health evaluation when there was no evidence suggesting that she ever threatened to harm herself or anyone else, as required for such hospitalization under Connecticut state law. Additionally, the officer was aware that she had a valid gun permit for her firearm. Hoyer v. DiCocco, No. 3:04CV1526(CFD), 2006 U.S. Dist. Lexis 72823 (D. Conn.).

False Arrest/Imprisonment: Warrant

     No reasonable jury could find that an officer acted unreasonably in arresting a man under an outstanding but old arrest warrant for someone of the same race, name, and sex, who, when questioned about the warrant replied that he thought the matter had been "taken care of already." It subsequently turned out that the warrant was for another man with a different birth date, and that the arrestee had mistakenly believed that the warrant the officer was referring to a traffic violation he had actually committed. Tibbs v. City of Chicago, No. 05-1634, 2006 U.S. App. Lexis 29135 (7th Cir.).

False Arrest/Imprisonment: Wrongful Detention

     Burglary arrestee who was allegedly detained for three additional days after the homeowner told police that he had permission to be in the residence and to take the items he had been accused of stealing was not entitled to damages against the city, based on his failure to show that the city's inaction was what caused his prolonged incarceration. Merely showing six other complaints against the city for allegedly overly long detentions in a five-year period was insufficient to establish a "persistent" pattern of similar deprivations. Alphabet v. City of Cleveland, No. 1:05 CV 1792, 2006 U.S. Dist. Lexis 83489 (N.D. Ohio).

     Detention of suspect for five days after his warrantless arrest without taking him before a judge for a probable cause hearing entitled him to judgment as a matter of law on his federal civil rights claims arising out of that fact, so that trial judge acted erroneously on refusing to submit the claim to the jury and instead granting the defendants' motion for judgment as a matter of law. Plaintiff was also entitled to further proceedings on his claim concerning the conditions of his warrantless detention, based on conflicting evidence. Lopez v. City of Chicago, No. 05-1877, 464 F.3d 711 (7th Cir. 2006).

Firearms Related: Intentional Use

     Because it was factually disputed whether a suspect actively posed a threat to anyone at the time when an officer shot and killed him, or whether he was, instead, shot and killed while he stood motionless with his knife at his side from a distance of ten to forty feet away when no officer had warned him to drop the knife, further proceedings were required on an excessive use of force A second officer, merely present during the incident, who was not alleged to have used any force at all, however, was entitled to qualified immunity, as his mere "inaction" during the events could not be a basis for liability for use of excessive force. Bacque v. Leger, No. 06-30019, 2006 U.S. App. Lexis 27855 (5th Cir.).

First Amendment

     City's actions in removing anti-homosexuality protesters from overpasses based on a noticeable effect on traffic on the highway below did not violate protestors' constitutional rights of free speech or freedom of religion. The city's actions were found to be content neutral, and needed to serve a compelling interest in the safety of motorists. Ovadal v. City of Madison, No. 05-4723, 2006 U.S. App. Lexis 28682 (7th Cir.).

     Woman's First Amendment rights were not violated by her arrest for refusing to leave government office after she was asked to do so. While the office was open to the public, it was not a "public forum," and it was reasonable to ask her to leave because the person she wished to see was gone that day. She was not asked to leave based on the content of what she had to say nor arrested on that basis. Additionally, even if these actions had violated her rights, the defendants were entitled to qualified immunity since they could reasonably believe that she could be asked to leave and arrested, under these circumstances, for refusal to do so. Helms v. Zubaty, No. 2005-56, 2006 U.S. Dist. Lexis 72052 (E.D. Kentucky).

Governmental Liability: Policy/Custom

     Claims against county sheriff alleging that he, as a policymaking official, caused false arrest, malicious prosecution, and illegal search of a home by authorizing deputies to obtain arrest and search warrants lacking probable cause were not meritorious There was no showing that any official county policy or custom caused the alleged constitutional deprivations, as required for municipal liability. Harris v. Bryant, No. 05-6045, 2006 U.S. App. Lexis 27134 (5th Cir.).

Negligence: Vehicle Related

     Motorist injured when his car was rear-ended by a car which had itself been rear-ended by a vehicle driven by an FBI agent was entitled to $651,037.01 in damages, including $100,000 for pain and suffering, future lost wages of $408,562 based on diminished earning capacity, and other damages for medical expenses and property damages. The award was made in a lawsuit for negligence againstthe FBI agent under the Federal Tort Claims Act, 28 U.S.C.S. §§ 2671-2680, and the court ruled that such negligence was the cause of the accident. Roark v. U.S., No.6:05CV00041, 2006 U.S. Dist. Lexis 74784 (W.D. Va.).

Police Plaintiff: Vehicle Related

     Repair shop from which a pickup truck was stolen was not liable for injuries a police officer suffered in an accident while pursuing the thief. Even though the truck had been left unlocked, with the key in the ignition, the business had no duty to protect third parties from the actions of the thief. Additionally, the thief's action in crashing the truck through a fence around the premises to take it was unforeseeable. May v. Nine Plus Properties, Inc., 2006 Cal. App. Lexis 1648 (Cal. App. 5th Dist.).

Property

     Arrestees who actually received back money seized from them during their arrests could not pursue claims for restitution against city because their claims were moot, but class action concerning handling of such money could continue on claims for possible interest due, based on procedures used in connection with the return of the funds. Gates v. Towery, No. 04C2155, 2006 U.S. Dist. Lexis 77772 (N.D. Ill.).

Privacy

     Police officer was not entitled to qualified immunity in lawsuit by rape victim claiming that he improperly released a videotape of her rape to a television station, which aired portions of it. Federal appeals court rejects officer's arguments that the victim did not have a constitutionally protected privacy interest in the contents of the tape, or that her privacy right was not clearly established. Anderson v. Blake, No. 05-6329, 2006 U.S. App. Lexis 28144 (10th Cir.).

Search and Seizure: Home/Business

     Officers' claim on appeal that a federal civil rights lawsuit verdict against them for warrantless entry into a woman home, and use of excessive force by an officer was not adequately supported by the evidence was frivolous, and officers were not entitled to qualified immunity. The officers entered without a warrant based on a neighbor's concern the homeowner's ex-wife was inside and was not entitled to be there. The officers allegedly did not announce themselves, confronted the woman inside by placing a gun near her head, and left, saying "never mind" after she convinced them that she owned the home, having received ownership through the divorce proceeding. Award of $27,000 in compensatory damages and $111,000 in punitive damages upheld. Frunz v. City of Tacoma, No. 05-35302, 2006 U.S. App. Lexis 28071 (9th Cir.).

     A county's requirement that welfare applicants all agree to warrantless home visits in order to be eligible for benefits did not violate the U.S. or California Constitutions, or state welfare regulations. Sanchez v. County of San Diego, No. 04-55122, 464 F.3d 916 (9th Cir.).

     Landowner could pursue federal civil rights lawsuit alleging that the city and another entity conspired to publish a map which falsely showed that a public trail crossed her property, failed to correct it once the error became known, and that private persons, encouraged and aided by the defendants, then trespassed onto her land. Presley v. City of Charlottesville, No. 05-2344, 464 F.3d 480 (4th Cir. 2006).

     While executing a search warrant investigating the alleged sale of drugs from a man's garage, there was no reasonable justification for keeping the suspect outside during the search with his genitals allegedly exposed for an hour. Under the circumstances, there was no possibility that he would either arm himself or destroy any evidence once he was under the officers' control. Additionally, if the facts were as alleged, it would be clear to any reasonable officer that these actions were illegal, so that the officers' were not entitled to qualified immunity. The appeals court did uphold, however, summary judgment for three officers not directly involved in the alleged rights violation. Macias v. County of Los Angeles, No. B 182831, 2006 Cal. App. Lexis 1684 (Cal. App. 2nd Dist.).

Search and Seizure: Person

       Affidavit for warrant for the seizure of a suspect's DNA in an investigation seeking a serial killer and rapist was not supported by probable cause. Anonymous tips which were not corroborated were insufficient to provide probable cause, as were a 20-year-old burglary conviction and the fact that the suspect was unemployed. Other information allegedly relied on by the detective who submitted the affidavit to the judge, such as an FBI profile of the man sought, was irrelevant, since it was not provided to the judge. Kohler v. Englade, No. 05-30541, 2006 U.S. App. Lexis 28841 (5th Cir.).

     Based on an individual's unwashed appearance and his "evasiveness," officers were justified in making an investigatory stop of a man who appeared outside a courthouse hours before it opened, and in making a protective search of both his person and briefcase to make sure he did not possess weapons. Cady v. Sheahan, No. 04-3518, 467 F.3d 1057 (7th Cir. 2006).

Search and Seizure: Search Warrants

     Even if the 8 paragraphs that a homeowner challenged in an 11-page, 38-paragraph affidavit for a search warrant for his residence were false, the remainder of the affidavit was adequate to supply probable cause for the issuance of the search warrant. Accordingly, the homeowner's Fourth Amendment rights were not violated and the FBI agent who filed the affidavit to obtain the warrant was entitled to qualified immunity.  Haire v. Thomas, 06-12428, 2006 U.S. App. Lexis 27608 (11th Cir.).

     Even though a search warrant for a home did not describe the property to be seized, a reasonable officer could have believed that it was sufficient because of its reference to an attached affidavit which did mention the evidence sought. Accordingly, the officers were entitled to qualified immunity. Officers were not constitutionally required to serve the search warrant on the resident before beginning the search. Finally, while the warrant authorized the search to take place any time between 6 and 10 a.m., the officers' minor deviation from this, in beginning the search at 5:50 a.m. did not violate the resident's constitutional rights. Rivera Rodriguez v. Beninato, No. 05-2748, 2006 U.S. App. Lexis 28141 (1st Cir.).

Strip Searches

     Claim that U.S. Marshals at D.C. Superior Court were subjecting all female arrestees to strip searches and/or visual body cavity searches without any individualized reasonable suspicion that they were concealing contraband or weapons, but that similarly situated male arrestees were not strip searched, if true, stated a claim for violation of the Fourth and Fifth Amendment. Further, it would have been clear to a reasonable officer that such a policy was unconstitutional. Johnson v. D.C., Civil Action No. 02-2364, 2006 U.S. Dist. Lexis 82930 (D.D.C.).

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     Article: "The Heck Doctrine and Excessive Force Claims--A Conviction Isn't Everything," by Rachelle Sorg, Chicago Bar Association, 20 CBA Record No. 8, pg. 58 (November 2006). Article discusses the rule in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994), barring federal civil rights lawsuits that would imply the invalidity of a prior criminal conviction that has not yet been overturned on appeal or otherwise invalidated or set-aside, and its application in lawsuits concerning claims of excessive force during arrests. The article focuses on caselaw from the U.S. Court of Appeals for the Seventh Circuit, and from federal district courts in Illinois.

     Article: "Police Intervention Short of Arrest," by Michael J. Butzomi, 75 FBI Law Enforcement Bulletin No. 11,  p. 26 (November 2006). "Effective policing today requires the use of strategies to intervene in criminal activity before it is successfully undertaken." [PDF] [HTML]

     Article: "Preventing the 10 Deadly Errors," by Joseph Petrocelli, 75 FBI Law Enforcement Bulletin No. 11, p. 10 (November 2006). "Thirty years after Pierce Brooks first identified these lethal errors finds the law enforcement profession still vulnerable for their occurrence." The article re-examines 10 "deadly errors" that repeatedly have led to officers' deaths, as identified in 1975 by Los Angeles Police Department Homicide Investigator Pierce R. Brooks in his book "...Officer Down, Code 3." [PDF] [HTML]

     Article: "Protecting America's Roadways," by Rebecca Kanable. 75 FBI Law Enforcement Bulletin No. 11, p. 1 (November 2006). "By recognizing that drunk driving laws need high-visibility enforcement and making prevention a priority, officers can protect America's roadways." [PDF] [HTML]

     Statistics: Indicators of School Crime and Safety, 2006. Presents data on crime and safety at school from the perspectives of students, teachers, principals, and the general public. A joint effort by the Bureau of Justice Statistics and the National Center for Education Statistics, this annual report examines crime occurring in school as well as on the way to and from school. It also provides the most current detailed statistical information on the nature of crime in schools, school environments, and responses to violence and crime at school. Data are drawn from several federally funded collections including the National Crime Victimization Survey, Youth Risk Behavior Survey, School Survey on Crime and Safety, and School and Staffing Survey. Information was gathered from an array of sources including: - National Crime Victimization Survey (1992-2004) - School Crime Supplement to the National Crime Victimization Survey (1995, 1999, 2001, 2003, and 2005) - Youth Risk Behavior Survey (1993, 1995, 1997, 1999, 2001, 2003, and 2005) - School Survey on Crime and Safety (1999-2000 and 2003-04) - School and Staffing Survey (1993-94, 1999-2000, and 2003-04). Highlights include the following: * From July 1, 2004, through June 30, 2005, there were 21 homicides of school-age youth (ages 5 to 18) at school. * In 2003-04 teachers' reports of being threatened or attacked by students during the previous 12 months varied according to their school level. * The percentage of public schools experiencing one or more violent incidents increased between the 1999-2000 and 2003-04 school years, from 71 to 81 percent. 12/06 NCJ 214262 Press release | Acrobat file (1.6K) | ASCII file (199K) | Spreadsheets (zip format 158K)

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