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CONTENTS

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Assault and Battery: Baton/Nightstick

     Dispute over whether an arrestee resisted arrest, or whether he only tried to take officers' nightsticks in self-defense when they hit him as he made no threatening motions, and then complied with an order to lie down made a trial court's grant of qualified immunity to the officers "premature." If the arrestee's version of the incident was true, the force used was excessive. A state law prohibiting the use of physical force to resist arrest did not prevent an arrestee from attempting to protect himself against an unjustified assault. McLaurin v. New Rochelle Police, No. 04-4849, 2007 U.S. App. Lexis 1839 (2nd Cir.).

Assault and Battery: Choke Holds

     In a federal civil rights lawsuit over an arrestee's death, genuine issues of fact as to whether the arresting officer was justified in using a choke hold to subdue the arrestee precluded summary judgment for the officer. Griffith v. Coburn, No. 05-2720, 2007 U.S. App. Lexis 426 (6th Cir.).

Assault and Battery: Physical

     Because the evidence showed that an arrestee assaulted an officer without provocation, and then resisted the attempt to restrain him, and the officers had to act rapidly in less than 15 seconds to use force to respond, their actions could not be reasonably judged to be excessive. Koeiman v. City of New York, No. 9491, Index 23549/93, 2007 N.Y. App. Div. Lexis 88 (1st Dept.).

     U.S. Marshal did not use excessive force against homeowner by pointing a gun at her in the basement of the residence and telling her to go upstairs. The Marshal was present in the home after the homeowner consented to a search for a dangerous fugitive being sought. The Marshal was alone in the basement at the time of the incident, and on his knees, and was startled by the homeowner's approach, and his actions were not excessive under the circumstances. Komongnan v. U.S. Marshals Service, No. 06-909, 2006 U.S. Dist. Lexis 90769 (D.D.C.).

     Arrestees who had allegedly surrendered before being hit in the head by a police officer created a genuine issue of whether the officer's use of force was excessive. Because the officer had no legitimate reason for striking them after such a surrender, if that was true, he was not entitled to qualified immunity. Baker v. City of Hamilton, Ohio, No. 05-4390, 2006 U.S. App. Lexis 31056 (6th Cir.).

Defenses: Absolute Immunity

     The Westfall Act, 28 U.S.C. Sec. 2679(b)(1) provides federal employees absolute immunity from tort claims for actions taken in the course of their official duties, and gives the Attorney General the power to certify that a federal employee sued for wrongful or negligent conduct was acting within the scope of his office or employment at the time of the incident. Once that certification takes place, the U.S. government is substituted as the defendant instead of the employee, and the lawsuit is then governed by the Federal Tort Claims Act. Additionally, if the lawsuit began in state court, the Westfall Act provides that it shall be removed to federal court, and renders the Attorney General's certification "conclusive" for purposes of the removal. Once the certification and removal take place, the federal court has the exclusive jurisdiction over the case, and cannot decide to send the lawsuit back to state court. In this case, the U.S. Supreme Court also ruled that certification can take place under the Westfall Act in instances where the federal employee sued claims, and the Attorney General also concludes, that the incident alleged in the lawsuit never even took place. Osborn v. Haley, No. 05–593, 2007 U.S. Lexis 1323.

Disability Discrimination

     Disabled man's claim that his rights under the Americans with Disabilities Act (ADA) were violated because no handicapped parking space was created for him next to his parents' residence rejected, since the ADA gave him no right to park his vehicle somewhere that he would not be able to park if he were not disabled. Douris v. Newtown Borough, Inc., No. 06-2015, 2006 U.S. App. Lexis 30154 (3rd Cir.).

Dogs

     The use of a drug-sniffing dog to sniff outside a motorist's vehicle was not a search under the Fourth Amendment, so there was no requirement that the officers get the motorist's consent before using the dog in this manner. The use of the dog sniff on the outside of the car did not change the valid traffic stop into an unreasonable seizure. Hugueley v. Dresden Police Department, No. 05-1348, 2007 U.S. Dist. Lexis 4922 (W.D. Tenn.).

Domestic Violence

     Police officers were entitled to qualified immunity for allegedly failing to prevent the murder of a son by his father, despite repeated calls to the police and the existence of a protective order, since the officers had discretion as to what actions to take in enforcing the protective order issued under Tennessee state law.  Hudson v. Hudson, No. 05-6575, 2007 U.S. App. Lexis 1705 (6th Cir.).

False Arrest/Imprisonment: No Warrant

     Police officers who arrested a man for disorderly conduct after he engaged in an altercation with them were entitled to summary judgment in his false arrest lawsuit. Probable cause existed for the arrest, despite the fact that the charges against him were later dismissed. Whyte v. City of Yonkers, No. 2005-09979 (Index No. 11316/03), 2007 N.Y. App. Div. Lexis 727 (2nd Dept.).

     Officer had probable cause to make a warrantless arrest of a woman for violating a municipal noise ordinance on the basis of a neighbor's complaint and the officer's own observation. Morales v. Taveras, No. 05-4032, 2007 U.S. Dist. Lexis 4081 (E.D. Pa.).

     A suspect's warrantless arrest when he came out of his residence after a 12-hour standoff between him and officers violated the Fourth Amendment since there was sufficient time after probable cause for an arrest was found to obtain a warrant. The defendants failed to show that there were exigent circumstances to justify several warrantless entries into the apartment that ultimately resulted in the seizure of the arrestee. Nominal damages of $1 were awarded against city, along with injunctive relief concerning the training of city officers. Fisher v. City of San Jose, No. 04-16095, 2007 U.S. App. Lexis 860 (9th Cir.).

     Deputies who went to a man's house to question him about a burglary had probable cause to arrest him after he "became belligerent," resulting in a struggle, and bit a deputy's arm while resisting being restrained. His actions gave them probable cause for an arrest for battery and resisting arrest, regardless of whether or not they had a basis to arrest him for burglary. Given that there was evidence that the arrestee had been drinking and using cocaine before the deputies arrived, they did not use excessive force in attempting to restrain him. Hawthorne v. Sheriff of Broward County, No. 06-11094, 2007 U.S. App. Lexis 10 (11th Cir.).

False Arrest/Imprisonment: Warrant

     Police detective was not shown to have deliberately or recklessly made misrepresentations of fact to a judge in obtaining a warrant for the arrest of a father for child abduction for taking his two children to another state during a visitation without his estranged wife's permission. Mannoia v. Farrow, No. 06-1430, 2007 U.S. App. Lexis 2607 (7th Cir.).

     Arrest warrant was not supported by probable cause when an officer's affidavit allegedly included deliberate misrepresentations. The warrant issued listed the suspect as a white male, even though the arrestee was an African-American. Even if the false statements were removed, the affidavit would not support probable cause for an arrest. The officer who obtained the warrant was not entitled to qualified immunity. Miller v. Prince George's County, Maryland, No. 05-2250, 2007 U.S. App. Lexis 1347 (4th Cir.).

     County was not liable for alleged false arrest and false imprisonment of a man under an arrest warrant actually issued for his twin brother. The warrant listed his name as an alias for the brother, and the arrestee was only held in jail for 4.5 hours before his release on bail. Rudkin v. Sedgwick County, Kansas, Case No. 05-1156, 2007 U.S. Dist. Lexis 2395 (D. Kan.).

Firearms Related: Intentional Use

     Officer acted reasonably in shooting and killing a suspect who was armed and whom he believed was pointing his gun at another officer. Livermore v. Lubelan, No. 06-1465, 2007 U.S. App. Lexis 2594 (6th Cir.).

     Officer acted properly in shooting a man who ignored orders to show his hands, and instead backed his car into a security guard's vehicle, followed by accelerating down an alley towards other police officers in his path. The officer's actions were aimed at trying to prevent him from injuring the other officers, and were reasonable under the circumstances, even if the suspect was then experiencing a bipolar episode. Because of this, there was also no violation of the Americans with Disabilities Act (ADA). Sanders v. City of Minneapolis, Minn., No. 06-1356, 2007 U.S. App. Lexis 1396 (8th Cir.).

First Amendment

     Federal appeals court upholds issuance of preliminary injunction against enforcement of New York City ordinance prohibiting sale to or possession by persons aged 18-21 of indelible markers and aerosol spray paint, which was intended to help prevent graffiti. The trial court found that the plaintiffs were likely to prevail on the merits of their claims that the ordinance violated their First Amendment right of freedom of expression, and also violated their right to equal protection of law. Vincenty v Bloomberg, No. 06-2106, 2007 U.S. App. Lexis 2481 (2d Cir.).

     An officer could not reasonably have believed that he had probable cause to arrest someone at a public township board meeting simply for the mild profanity of saying "God damn" while speaking to the board. The First Amendment protected this expression by the husband of an owner of a towing company complaining about the fact that the police chief had stopped using that company as the municipality's towing company. Leonard v. Robinson, No. 05-1728, 2007 U.S. App. Lexis 2275 (6th Cir.).

Governmental Liability: Policy/Custom

     A municipal judge's incarceration of a mother under a city ordinance for her daughter's truancy from school was not an act of official municipal policy of the sort which could possibly create municipal liability for violation of federal civil rights. Granda v. City of St. Louis, No. 06-2309, 2007 U.S. App. Lexis 100 (8th Cir.).

Homeless Persons

     A city ordinance prohibiting "aggressive" panhandling alongside roads or on sidewalks was upheld as constitutional by New York's highest court. The ordinance in question was narrowly drawn to focus on specific conduct that the city legitimately could attempt to control, and was content-neutral. People v. Barton, No. 176, 2006 N.Y. Lexis 3709.

Immigrants

     Federal trial court enjoins enforcement of municipal ordinance prohibiting landlords from renting apartments or houses to illegal aliens. The defendant city failed to show that such rental activity had the effect of increasing local crimes or otherwise endangered public welfare, health or safety. Questions remained as to whether federal immigration law preempted the city ordinance, and whether the ordinance was a violation of the right to due process of law. Garrett v. City of Escondido, No. 06CV2434, 2006 U.S. Dist. Lexis 93453 (S.D. Cal.).

Positional, Restraint and Compressional Asphyxia

     In a lawsuit over the death of a man weighing almost 350 pounds with PCP and cocaine in his bloodstream who allegedly struggled with police and resisted their attempts to arrest him outside a fast food restaurant, the plaintiffs claimed that the officers used excessive force, unnecessarily striking him with metal batons and causing him to suffer respiratory failure from positional asphyxia when they sat on him, after spraying a chemical irritant (pepper spray) in his face. The trial court found that the plaintiffs sufficiently stated a claim that the officers who apprehended him used excessive force against him, as the confrontation began simply because firefighters who encountered him perceived him as creating a "nuisance," which is "not the type of crime" permitting officers to use a greater use of force. It was disputed whether the decedent subsequently was resisting arrest, or was simply trying to position himself so that he could breathe. Additionally, the plaintiffs in the case alleged that the officers used pepper spray against the decedent after he was already face down and was being handcuffed, which the court stated, if true, could also constitute an excessive use of force. The officers were not entitled to qualified immunity because a reasonable officer might have known that engaging in the alleged acts violated the decedent's right to be free from excessive force. The court granted a motion to dismiss claims by the plaintiffs against the firefighters, who left the scene before some of the incidents that resulted in the decedent's death, and against police supervisors and a fire chief. It denied a motion to dismiss claims against the police officers involved in the incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis 75430, 2006 WL 2987820 (S.D. Ohio).

Public Protection: Ill Persons

     Police officers and emergency medical technicians who found a man lying on a couch when they responded to a call reporting a suspected cardiac arrest in an apartment, and who also found a female dead on the floor there had no general duty to provide assistance to the man on the coach, and were therefore not liable for his subsequent death there. The defendants did not restrain him in any way or place him in their custody, nor did they create a greater danger to him, such as by preventing access for private persons seeking to render assistance, given the absence of any indication that there was any private rescue attempted. The fact that the officers closed the apartment off as a crime scene for an investigation of the female's death did not by itself increase the risk that the man on the couch would also die. Further, there was no indication that he died while the officers were present. Denial of qualified immunity was therefore reversed. Carver v. City of Cincinnati, No. 06-3230, 2007 U.S. App. Lexis 976 (6th Cir.).

Public Protection: 911 Phone Systems

     City was not liable for the drowning of four boys based on alleged failure to respond to 911 call. Evidence presented did not show any justified reliance on a promise to send assistance or that the boys were placed into a worse situation than they would have been in had the 911 call not been made. Accordingly, there was no "special relationship" as required to impose liability under New York state law. Court further rejects the argument that emergency personnel's alleged failure to follow departmental standards of conduct and protocols, on its own could be a basis for liability. Badillo v. City of New York, No. 9632-9633, Index 13186/04, 2006 N.Y. App. Div. Lexis 15811 (1st Dept.).

Pursuits: Law Enforcement

     In a lawsuit over the death of a pedestrian hit by a police car during a high-speed pursuit, the city was entitled to immunity from liability under a California state statute, Vehicle Code Sec. 17004.7, providing immunity to public agencies that adopt written policies to guide such pursuits. Alcala v. City of Corcoran, No F049383, 2007 WL 316685 (Cal. 5th App. Dist.).

Search and Seizure: Home/Business

     Officer who went to a home to investigate a 911 call which came from there had voluntary consent from a resident to enter to see that everything there was ok. The officer did not exceed the scope of the consent given, and left after approximately one and a half minutes, so that there was no violation of the Fourth Amendment. Owens v. Town of Delhi, No. 06-0057, 2007 U.S. Dist. Lexis 1246 (W.D. La.).

     Drug Enforcement Administration (DEA) agent was entitled to qualified immunity for forcibly seizing a small recording tape while searching a residence. The woman from whom he seized it was present and stated that she was closely related to the occupants of the house, and placed the tape in her mouth to prevent him from obtaining it after telling him that she did not want the police to hear it. While the presence of the tape, by itself, might not be suspicious, the woman's actions and statements created a suspicion that it contained evidence of crime justifying its seizure. Cooper v. Bonaventura, No. 7:06CV00053, 2007 U.S. Dist. Lexis 5126 (W.D. Va.).

     Federal appeals court reinstates lawsuit against police officers for obtaining a search warrant and carrying out a search, based on allegations that they did so in bad faith, and knew that the supporting statements presented were misleading and false. Schindler v. French, No. 05-4174, 2007 U.S. App. Lexis 941 (2nd Cir.).

Search and Seizure: Media Presence

     New York court declines to dismiss claims against a production company and two broadcasting companies alleging that in the course of filming a "reality-based" television program showing police on patrol they encouraged police to use excessive force, adopting a common plan to use excessive which resulted in injuries suffered when a police detective fired his gun, injuring a woman during the execution of a search warrant. Rodriguez v. City of New York, No. 2004-11173 (Index No. 20154/04), 2006 N.Y. App. Div. Lexis 15242 (2nd Dept.).

Search and Seizure: Person

     Ferry transportation company's policy of randomly selecting passengers and vehicles for searches of their carry-on baggage or trunks, adopted in response to the Maritime Transportation Security Act, 46 U.S.C. Secs. 70101-70119, did not violate the Fourth Amendment under the "special needs" doctrine. The searches conducted were not overly intrusive and there was a special need to prevent terrorist attacks on large vessels involved in mass transportation which were found by the Coast Guard to be at an elevated risk of attack. Cassidy v. Chertoff, No. 05-1835, 2006 U.S. App. Lexis 29388 (2nd Cir.).

     Library user accused of stealing computer equipment failed to show that his consent to search his bag was invalid, based on a police officer's alleged failure to inform him of his right to refuse to give consent. The plaintiff had no right to any such notification, and the evidence showed that his consent was voluntary. Only v. Cyr, No. 06-1086, 2006 U.S. App. Lexis 27410 (3rd Cir.).

     Federal appeals court upholds a judgment for a plaintiff who claimed that police officers violated his rights by ordering a warrantless blood test for an alleged misdemeanor DUI offense without his consent or exigent circumstances. The officers themselves agreed that their actions violated his Fourth Amendment rights, and a federal appeals court rejected their claim that the constitutional right violated was not "clearly established," entitling them to qualified immunity from liability. Jury awarded motorist $90,000 in compensatory damages and a total of $400,000 in punitive damages against the two defendant officers. Marshall v. Columbia Lea Reg'l Hosp., No. 05-2173, 2007 U.S. App. Lexis 389 (10th Cir.).

Search and Seizure: Search Warrant

     Affidavit for search warrant for apartment provided adequate probable cause to believe that evidence of drug-related crime would be found there, and made it reasonable for officers to believe that a risk of the destruction of evidence justified execution of the search warrant at night. Occupant could not assert her claim that the officers who searched her apartment failed to "knock and announce" before they entered, when she conceded that she was asleep when the officers entered. Taylor v. City of Detroit, No. 05-CV-70489, 2007 U.S. Dist. Lexis 4587 (E.D. Mich.).

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     Book: Best Practices in Law Enforcement Public Information For the first time in many years, the IACP has returned to publishing with the production of a new book. Drawing from the experience of police chiefs, their public information officers, and media personnel, this book illustrates the importance of having an effective police-media relationship. It provides the modern police executive with a comprehensive guide for developing, maintaining, and improving this critical relationship. $24.95 IACP members, $29.95 non-members (2006). To order a copy, click here or Contact Lucinda Scott, 1-800-THE-IACP ext.267 or scott@theiacp.org.

     FBI E-mail alerts: To improve public safety and law enforcement partnerships, the FBI recently launched a service that sends out e-mail alerts when new and vital information is posted on its Internet website. To sign up for free, click on the red envelope icons found at the FBI website at http://www.fbi.gov, and enter your e-mail address. Subscribers select which topics that they want updates on, such as new e-scams and warnings, most wanted terrorists, top ten fugitives, and national and local press releases. The alerts are sent as soon as updates are posted on the FBI website or in daily, weekly, or monthly digests. Since launching the service in October, the FBI has e-mailed more than 600,000 alerts to nearly 14,000 subscribers. Through its website, the FBI has also begun providing RSS (Really Simple Syndication) news feeds for press releases, top stories, and other breaking news. Go to http://www.fbi.gov/rss.htm for details.

     Gangs: Report: "Public Enemy Number 1: California's Growing Racist Gang," (2007) by the Anti-Defamation League (ADL) discusses a white supremacist gang which is an "unusual hybrid of a racist skinhead gang, a violent white street gang, and a prison gang" which has grown substantially in recent years. The gang was the target of a December 14, 2006 series of search and arrest warrants executed by nearly 300 police officers from two dozen federal and local law enforcement agencies in Southern California at 75 different locations, resulting in the arrests of 67 alleged members of the gang "Public Enemy Number 1 (PENI)." The raids occurred after information was uncovered concerning an alleged PENI "hit list" with the names of a prosecutor and five police officers from several different departments.

     Interrogation: "Revealing Incommunicado," by Brian Parsi Boetig, David M. Vinson, and Brad R. Weldel, 75 FBI Law Enforcement Bulletin, No. 12, p. 1 (December 2006). "Agencies should consider the benefits of electronically recording interrogation." (.html format).

     Publications: Critical Response Newsletter Electronic version of the Fall 2006 issue of the Critical Response newsletter focusing on a wide range of victim-related issues, resources and training opportunities is available at http://www.theiacp.org/research/RCDCriticalResponse.htm.

     Search and Seizure: "Detaining Individuals at the Scene of a Search," by Carl A. Benoit, 75 FBI Law Enforcement Bulletin, No. 12, p. 16 (December 2006). "Officers must know the degree of force they may use when detaining individuals present at the scene of a search." (.html format).

     Website: Less Lethal Weapon Clearinghouse Website. Developed by IACP with support of the COPS office, BJA, and other policing organizations and associations. A website clearinghouse for information on Less Lethal Weapons.

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

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