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Assault and Battery: Handcuffs

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

     Arrestee's excessive force claim, based on allegation that her handcuffs were applied too tightly, was not meritorious when her only injury was bruising on her wrists and arms. Leaving her in a patrol car for, at most, 30 to 45 minutes with tight handcuffs was not excessive force. Deputies did not, however, have probable cause to arrest the plaintiff for interference with their duties or hindering apprehension, if the facts were as the arrestee claimed, so that they were not entitled to summary judgment on her false arrest claim. Freeman v. Gore, No. 05-41684, 2007 U.S. App. Lexis 7604 (5th Cir.).

     Red marks which arrestee had on his hands from handcuffs he claimed were too tight did not constitute a significant injury to support a claim for excessive use of force. Cortez v. McCauley, No. 04-2062, 478 F.3d 1108 (10th Cir. 2007).

Assault and Battery: Physical

     State troopers were not entitled to qualified immunity on motorist's claim that they used excessive force against him during a pat-down search during a traffic stop. The motorist was not able to produce a valid vehicle registration, and was asked to step out of his car. He told them, in response to orders that he put his hands behind his back, that he was unable to do so because of a shoulder injury. In response they allegedly forced him onto the hood of his cars, forced his arm up, and, once he screamed in pain, applied more pressure and pumped his arm up and down. If the motorist's version of the events was accurate, the troopers could not have reasonably believed that this use of force was proper under the circumstances. The fact that the motorist had 20-25 pens and pencils on his person, and a firearm in his auto (which the troopers were then unaware of) did not justify the amount of force used, nor did the motorist's belligerent manner of stating that he did not believe he was required to register his car. Winterrowd v. Nelson, No. 04-35855, 2007 U.S. App. Lexis 7400 (9th Cir.).

Defenses: Bankruptcy

     A plaintiff arrestee who filed a false arrest lawsuit, but failed to notify a bankruptcy court that he had done so despite pending bankruptcy proceedings, was barred from asserting his claims arising out of the arrest. The arrestee had taken inconsistent legal positions by trying to pursue his federal civil rights claims in court after having denied in his bankruptcy case, that he had any assets. Davis v. Village of Caseyville, No. 05-CV-0455, 2007 U.S. Dist. Lexis 11661 (S.D. Ill.).

Defenses: Qualified Immunity

     An investigator was entitled to qualified immunity in a federal civil rights lawsuit claiming that his actions had caused the plaintiff to suffer a wrongful murder conviction and placement on death row for 14 years. The court found that the undisputed facts showed that his acts were at most negligent, and not intentional or reckless, and there was no evidence that he purposefully tried to suppress exculpatory evidence. Clemmons v. Armontrout, No. 05-4140, 06-1099, 477 F.3d 962 (8th Cir. 2007)

Defenses: Statute of Limitations

     Arrestee's claims for false arrest and malicious prosecution under the Federal Tort Claims Act and for federal postal employees' alleged violations of his federal civil rights accrued at the date that the alleged wrongful prosecution of him ended, so that they were barred by an applicable two-year statute of limitations. Braunstein v. U.S. Postal Service, No. 05-16390, 2007 U.S. App. Lexis 8831 (9th Cir.).

     The plaintiffs' claims for unlawful search and seizure in violation of the Fourth Amendment accrued at the date of their arrest, so their failure to filed their civil rights lawsuit until three years later meant that their claims were time barred under a two-year statute of limitations. The rule in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) that a federal civil rights claim does not accrue until a conviction is reversed or vacated did not apply because the plaintiffs had not been convicted of anything at the time of their arrest. Kucharski v. Leveille, No. 05-73669, 2007 U.S. Dist. Lexis 19918 (E.D. Mich.).

Disability Discrimination

     Federal appeals court upholds dismissal of HIV positive person's lawsuit claiming that police engaged in disability discrimination under federal and Florida state law by allegedly refusing, after he was a victim of a crime, to investigate it, and by denying him access to services after he reported the officers' alleged refusal. Under state law, the decision to make an arrest was discretionary, so that police were entitled to immunity on the state law claims for negligent investigation, supervision and retention. A state statute mandating no discrimination against HIV-infected individuals required written notice of his claim, which the plaintiff failed to provide. The plaintiff failed to adequately plead claims under either the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973. Albra v. City of Fort Lauderdale, No. 06-14544, 2007 U.S. App. Lexis 9376 (11th Cir.).

     Estate of paranoid schizophrenic shot and killed by police who came to his house in response to a 911 call from his family requesting assistance failed to show that more adequate training as to how to respond to incidents involving mentally disturbed persons would have resulted in a different result. The court found that the officers did not create the dangerous situation. Thao v. City of St. Paul, No. 06-2339, 2007 U.S. App. Lexis 7553 (8th Cir.).

False Arrest/Imprisonment: No Warrant

     While a deputy violated an arrestee's Fourth Amendment rights by pulling him from the doorway of his home to make a warrantless arrest, he was entitled to qualified immunity because of conflicting U.S. Supreme Court cases, one stating that a warrantless arrest could not be made, without exigent circumstances, by crossing the threshold of a home, Payton v. New York, No. 78-5420, 445 U.S. 573 (1980), and the other, United States v. Santana, No. 75-19, 427 U.S. 38 (1976), in which a warrantless arrest occurring in a doorway was upheld. "No Supreme Court, Eleventh Circuit, or Supreme Court of Florida cases have resolved the question whether Payton or Santana applies to the arrest of a person who, while standing firmly inside the house, opens the door in response to a knock from the police and is then pulled outside the unambiguous physical dimensions of the home." McClish v. Nugent, No. 06-11826, 2007 U.S. App. Lexis 8294 (11th Cir.).

     Arrestee failed to show that the officers' alleged failure to recognize his medical condition and that he had not been drinking or using drugs was anything more than negligent, which was insufficient for a federal civil rights claim, or that the officers' alleged misconduct was caused by a municipal policy or custom, as required for a claim against the city. Williams v. City of Amory, Mississippi, No. 06-60705, 2007 U.S. App. Lexis 7956 (5th Cir.).

     Arresting a man for violation of a restraining order of which he was allegedly unaware was not unlawful, so that federal civil rights claims were dismissed. Black v. District of Columbia, No. 1:06-1041, 2007 U.S. Dist. Lexis 21791 (D.D.C.).

     An officer did not "seize" a man at a state fair by writing him a criminal citation for resisting, evading or obstructing an officer following a verbal altercation and threatening that he would be arrested and taken to jail if he did not sign it. The fact that the plaintiff could have been arrested had he failed to sign the citation did not convert the issuance of the citation into an arrest. Martinez v. Carr, No. 06-2069, 2007 U.S. App. Lexis 7074 (10th Cir.).

     Officers were not entitled to qualified immunity on married couple's claim that they did not have probable cause to arrest both of them for domestic battery charges. The arrestees claimed that the wife had mistakenly called 911 and that they had both explained to the officers that they had merely been "play fighting" with each other, while the officers claimed that the couple had both stated that the other had injured them. This dispute of material fact made summary judgment inappropriate. Washington v. Haupert, No. 05-4225, 2007 U.S. App. Lexis 7129 (7th Cir.).

     Police officers had probable cause to arrest a man for trespass for walking near a private railroad track, so that their pat-down search of him, which found a small crack pipe in his pocket, could be justified as a search incident to arrest, and the plaintiff could not prevail on his claim that they had no probable cause to arrest him for possession of drug paraphernalia. Duncan v. Fapso, No. 06-1744, 2007 U.S. App. Lexis 3632 (7th Cir.).

Firearms Related: Intentional Use

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

     Officers were not entitled to qualified immunity for shooting and killing a man sitting in his car with the tires shot out when they allegedly knew he had no gun, was only in possession of a pocket knife, was not suspected of any crime, and when the purpose of trying to get him out of his vehicle was to talk him out of possibly killing himself. Under these alleged circumstances, no use of deadly force would be justified, particularly when he was surrounded by a number of police vehicles and at least ten armed police officers. Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978 (9th Cir.).

     Officer did not use excessive force in shooting and killing a motorist who fled a traffic stop, entered another vehicle, and hit the officer with the car. Inadequate training claim against city also rejected. Jenkins v. Bartlett, No. 06-2495, 2007 U.S. App. Lexis 9228 (7th Cir.).

     Deputies reasonably believed, at the time they shot at a car attempting to escape them by going in reverse, that a deputy behind the car was in serious danger of harm, so that they were entitled to qualified immunity. Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.).

     In a lawsuit over the death of a mentally impaired man holding a screwdriver, who three officers shot and killed, the trial court properly denied summary judgment to the officers, based on the existence of factual disputes about whether the decedent had posed an immediate threat to the officers when he was shot. The appeals court found, further, that the trial court had committed an error in considering the actions of all three of the officers together, and that it should, on remand, consider each of the officers' actions by themselves to determine whether any of them had used unreasonable force. Meadours v. Ermel, No. 05-20764, 2007 U.S. App. Lexis 7592 (5th Cir.).

First Amendment

     Town ordinance under which a woman was arrested for distributing leaflets for "Jews for Jesus" without a permit in a municipal park was unconstitutional on its face and as applied to the arrestee. The ordinance placed a prior restraint on distributing religious literature and engaging in conversation about religion in the park, and was more of an absolute bar than a reasonable time, place, and manner regulation. The ordinance had no standards or guidelines as to when a permit would be granted or denied, so that it gave the town completely unfettered discretion. Additionally, the town official authorized to grant such permits refused to consider the arrestee's application to obtain one. New York v. Mendelson, No. 2006NA 00602, 2007 N.Y. Misc. Lexis 1973 (Dist. Ct. N.Y., First Dist. Nassau County).

     Two arrestees who both displayed an inverted U.S. flag as a political statement failed to show that charges of flag desecration and disorderly conduct were facially violative of the First Amendment, since not all applications of these laws would impermissibly suppress protected ideas or chill free speech. The laws were void for vagueness under the 14th Amendment's due process clause however, because terms such as "contempt," "disrespect," and "flag" were not clearly defined and the statutes gave officers and prosecutors impermissible "unfettered discretion" as to when to prosecute someone for a violation. Roe v. Mulligan, No.4:06-cv-00300, 2007 U.S. Dist. Lexis 22051 (S.D. Iowa).

     A city ordinance, which requires users of public land in the city to sign an agreement to "bear all costs of policing, cleaning up, and restoring the park," violated the First Amendment rights of a protest organization who sought a permit for a demonstration. While the fee charged for the permit was "nominal" and not content-based, and therefore did not violate the First Amendment, this was not true of the promise to "bear all costs" of policing and cleanup. That burden was, indeed, content-based, the court reasoned, because the anticipated cost would depend on the public's reaction to the speech involved. Further, this reimbursement policy was "ripe for abuse" because the city, by deciding how best to police an event and charge the speaker, is provided with "unlimited discretion" which could be used to punish speakers based on the content of their messages. The Nationalist Movement v. City of York, No. 06-2184,481 F.3d 178 (3rd Cir.).

     A town ordinance prohibiting nude dancing violated the First Amendment constitutional rights of a corporation to free expression. The town and its officials failed to show that they relied on evidence of negative secondary effects that such dancing would cause before they passed the law, and also failed to show that the law served a substantial governmental interest. The fact that the building in which the company operated its business was damaged by fire while the lawsuit was pending did not alter the result when the company had a clear intention to reopen and continue to present the same type of entertainment. White River Amusement Pub v. Town of Hartford, No. 06-0233-cv, 2007 U.S. App. Lexis 7150 (2nd Cir.).

     While an acknowledged "pain in the neck" to city officials who frequently opposed city policies showed that he had been issued 26 municipal citations in a two-year period, he failed to prove that the citations were issued because of a retaliatory motive or without probable cause. There was no arguable issue about probable cause as to 25 of the 26 citations, and even if the remaining one was issued without probable cause, the plaintiff failed to show that it was issued because of his exercise of his constitutional rights. Williams v. City of Carl Junction, Missouri, No. 06-2130, 2007 U.S. App. Lexis 7137 (8th Cir.).

Governmental Liability: Training

     Two persons shot by a deputy when their pickup truck started to drive away from a traffic stop as the deputy approached adequately alleged that the county sheriff, in training programs, did not clearly define the circumstances under which deadly force could be used, and that, if any such guidelines existed, the sheriff had violated them. A relationship between the sheriff's actions and the incident was also alleged. Official capacity claims against the sheriff, however, were dismissed, as the county, which was the proper defendant, was named in the complaint. Rodriguez v. Quintero, Civil Action No. SA-06-CA-64-FB, 2007 U.S. Dist. Lexis 25296 (W.D. Tex.).   

Negligent or Inadequate Investigation/Failure to Investigate

     Surviving family of man believed by officials to have committed suicide failed to show that there was any violation of constitutional rights or Montana state law from the alleged failure to adequately investigate whether the death was actually a suicide or caused by something else. Further, the officials did not have any duty to protect the decedent's personal property, following his death, from theft by private persons, and the allegation that the officials themselves took the missing property was mere "speculation." Hageman v. Bates, No. CV-06-09, 2007 U.S. Dist. Lexis 21055 (D. Mont.).

Police Plaintiffs: Firefighters' Rule

     A police officer who was attacked and suffered head and neck injuries when called to the scene of a fight at a bar and restaurant can sue the business owners for alleged negligent failure to provide adequate security there in violation of a municipal ordinance. The New Jersey Supreme Court held that a 1993 statue passed by the state legislature had abolished the "firefighters' rule" which previously provided that firefighters and police officers should not recover for injuries which were the result of the dangers they were employed to respond to. Harry Ruiz v. Angel Mero, No. A-28/29-06, 189 N.J. 525; 917 A.2d 239 (2007).

Public Protection: Disturbed/Suicidal Persons

     Police officer who failed to detain allegedly disturbed woman when he did not observe her engaging in any behavior presenting a danger to herself or others was not liable for her death the following day when she was shot and killed by several officers during a confrontation. While the decedent's family claimed that he had stated that the woman had, earlier in the day, run down the street with her clothes off and screaming that she was on fire, and later had to be preventing from jumping out of a window, the officer did not observe such behavior. When a jury found that the officer acted with gross negligence, but not willful misconduct, the officer was entitled to immunity from liability under a Pennsylvania state statute. Riley v. Paugouzas, No. 959, 2007 Phila. Ct. Com. Pl. Lexis 108 (Civil Trial Div.).

Pursuits: Law Enforcement

     An officer did not violate the Fourth Amendment by trying to terminate a high-speed pursuit when it appeared to threaten the lives of by-standers, even when the manner of doing so involved placing the fleeing motorist at a risk of death or serious bodily injury. Scott v. Harris, No. 05-1631, 2007 U.S. Lexis 4748 (This case is also the main topic of a Monthly Law Journal article this month. See that article for more details).

Racial/National Origin Discrimination

     The plaintiff failed to show that a police officer or the city that employed him acted with racially discriminatory intent by approaching him at his home and asking him to provide a DNA sample while investigating alleged sexual assaults. The defendants were approaching youthful-looking black males, but not youthful-looking white males because of a physical description provided by the victims of the assaults, not because of racially discriminatory policies or animus. Monroe v. City of Charlottesville, Virginia, Civil No. 3:05cv00074, 2007 U.S. Dist. Lexis 6909 (W.D. Va.).

Search and Seizure: Home/Business

     Law enforcement officials, including federal employees, did not violate a homeowner's Fourth Amendment rights when they searched his residence to try to find his son, the subject of three arrest warrants, because they reasonably believed that the house was also where the son resided and that the son was then at home, despite the fact that he was ultimately not found during the search. The officers also did not use excessive force in handcuffing the homeowner and making him sit down during the search. Covington v. U.S. Dept. of Justice, No. 05-1204, 2007 U.S. Dist. Lexis 16872 (C.D. Ill.).

     Trial court found that search warrant for residence was overly broad. A jury then awarded $3,000 in actual damages and $3,500 in punitive damages against a sheriff for damage to the plaintiff's property. The trial judge found that there was adequate evidence to support the jury's conclusion that the sheriff should be liable for property damage, but that a deputy should not, as he did not cause the damage. The court also found that the jury, in arriving at the figure of $6,500 in damages, appeared to have arrived at a "compromise" verdict that was not consistent with the evidence, entitling the plaintiff to a new trial against the sheriff. Cassady v. Goering, No. 03-cv-01008, 2007 U.S. Dist. Lexis 11175 (D. Colo.)

     Police officers were not authorized to make warrantless regulatory inspections of bars under regulatory scheme, so that trial court improperly granted dismissal of bar owner's Fourth Amendment claims. The plaintiff, however, failed to show that the township police department had a custom of raiding establishments owned by or associated with African-Americans. Watson v. Abington Township, No. 05-4133, 2007 U.S. App. Lexis 3485 (3rd Cir.).

Search and Seizure: Persons

     Holders of concealed weapon permits did not have a right to enter a courthouse without submitting to a magnetometer search for firearms. Conducting such searches, which were carried out along with a posted notice that it was a crime to possess a weapon in a court facility did not violate the plaintiffs' rights under Pennsylvania law, and there was no reasonable expectation of privacy barring such searches. Minich v. County of Jefferson, Pennsylvania, No. No. 1750 C.D. 2006, 2007 Pa. Commw. Lexis 119.

Search and Seizure: Search Warrant

     Search of residential premises pursuant to search warrant was proper, despite the suspect's claim that the warrant was obtained through "judicial deception" by falsely calling a government witness a "confidential informant." The court found that even if that description was inaccurate, the plaintiff did not show that the warrant would not have been issued in its absence. Further proceedings were ordered, however, on Montana state law right to privacy claims. Nickel v. Woods, No. No. 05-35592, 2007 U.S. App. Lexis 7482 (9th Cir.).

•Return to the Contents menu.

     Airport/Airline Security: "Intelligence and Airports," by Robert T. Raffel, 76 FBI Law Enforcement Bulletin No. 4, pgs 1-7 (April 2007). "Airport security practitioners have several avenues to receive and use information and intelligence."

     School Security: Resources on School Violence. Compiled by the FBI and contains a number of useful links to various resources and information. (April 2007).

     Statistics: Bank Crime Statistics 2006. Compiled by the FBI (Feb. 2007).

     Statistics: Contacts between Police and the Public, 2005, 04/07. NCJ 215243 Presents data on the nature and characteristics of contacts between residents of the U.S. and the police over a 12-month period. Findings are provided from a nationally representative survey of more than 60,000 residents age 16 or older. Detailed information is presented on face-to-face contacts with the police, including the reason for and outcome of the contact, resident opinion on police behavior during the contact, and whether police used or threatened to use force during the contact. The report provides demographic characteristics of residents involved in traffic stops and use of force incidents. The report also provides comparative analysis with prior survey findings. Highlights include the following: An estimated 19% of U.S. residents age 16 or older had a face-to-face contact with a police officer in 2005, a decrease from 21% of residents who had contact with police in 2002. Overall, about 9 out of 10 persons who had contact with police in 2005 felt police acted properly. Of the 43.5 million persons who had contact with police in 2005, an estimated 1.6% had force used or threatened against them during their most recent contact, a rate relatively unchanged from 2002 (1.5%).

     Wiretaps: 2006 Wiretap Report, by the Administrative Office of the United States Courts (April 30, 2007). "Federal and state courts across the United States issued 1,839 orders authorizing or approving the interception of wire, oral or electronic communications in 2006. The total is a 4 percent increase over 2005."

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

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