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CONTENTS

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Assault and Battery: Physical

     Officers who were allegedly present when another officer used excessive force against a handcuffed arrestee could be held liable for failure to intervene. Velazquez v. City of Hialeah, No. 05-13157, 2007 U.S. App. Lexis 5821 (11th Cir.).

     Officer was not entitled to qualified immunity when arrestee claimed he had increased his use of force after resistance to the arrest had ceased. Federal appeals court reinstates jury award in plaintiff's favor. Jennings v. Jones, No. 05-2522, 2007 U.S. App. Lexis 5268 (1st Cir.).

     Videotape of incident did not conclusively establish what happened during an arrest, because the disputed contact between the officers and the arrestee was covered up by a time/date stamp on the tape. Further proceedings were therefore required to resolve the factual issue of whether the arrestee was resisting the officers in a way that justified their use of force against him. Gill v. Locricchio, No. 06-1659, 2007 U.S. App. Lexis 4878 (6th Cir.).

     Officer's use of force against an unarmed arrestee, if as alleged, was sufficiently excessive to violate clearly established law, requiring reversal of trial court's grant of qualified immunity to officer. Davis v. City of Las Vegas, No. 04-17284, 2007 U.S. App. Lexis 4580 (9th Cir.).

Defamation

     City and police officials were immune under California state law from defamation claims asserted by high school basketball coach detained on the basis of an accusation that he had sexually molested a former team member. Under a state statute they were immune on defamation and intentional infliction of emotional distress claims for statements made in the course of a criminal investigation, whether those statements were reasonable or malicious. There was, however, no similar immunity on false arrest claims, and there was no probable cause for the coach's arrest since the accusations against him lacked sufficient indications of reliability. Gillan v. City of San Marino, No. B182979, 2007 Cal. App. Lexis 222 (2d Dist.).

Defenses: Qualified Immunity

     Officers were not entitled to qualified immunity on claims that they violated the Fourth Amendment by arresting a man who stood in the doorway of his residence and declined to consent to their entry. The officers then had a search warrant for another person but did not have a reasonable belief that the person named in the search warrant was present inside the home. Villegas v. Hackett, No. 05-55311, 2007 U.S. App. Lexis 6945 (9th Cir.).

Disability Discrimination

     Failure to provide an interpreter during a drunk driving arrest of a deaf arrestee was not disability discrimination. It was not a reasonable modification of normal procedures to wait for an oral interpreter before making a deaf motorist take field sobriety tests. The arrestee was able to read lips and did respond to the officer's directions. The court found that effective communications between the officer and arrestee was established. Bircoll v. Miami-Dade County, No. 06-11098, 2007 U.S. App. Lexis 5269 (11th Cir.).

Domestic Violence

     Surviving family members of woman who was killed by her husband failed to show that officers should be held liable for failure to protect her. Mere promises of additional police patrols in the area did not constitute an enhancement of the danger to the decedent for purposes of the "state-created danger" doctrine. Brooks v. Knapp, No. 06-1352, 2007 U.S. App. Lexis 5966 (6th Cir.).

False Arrest/Imprisonment: No Warrant

     Township and officers who arrested suspected shoplifter could not be held liable for false arrest when any error in a mistaken identification of the arrestee as the offender was the fault of store employees. Boykin v. Van Buren Township Police Dep't, No. 06-1359, 2007 U.S. App. Lexis 5830 (6th Cir.).

     Police officer had probable cause to arrest motorist for driving with a suspended driver's license, based on a computer check, regardless of whether or not the information was accurate. Gargano v. Belmont Police Dept., No. 06-11687, 2007 U.S. Dist. Lexis 16547 (D. Mass.).

     Police detective had probable cause to arrest suspect for arson of a business, based on an eyewitness statement placing him there, a fire marshal's conclusion that the fire had been arson, the fact that the suspect had the skill needed to commit the crime, and also had a motive to do so since he had been fired by the business the day before, as well as the results of a polygraph examination of the suspect. Reed v. City of Chino, No. 05-55104, 2007 U.S. App. Lexis 5856 (9th Cir.).

     Despite arrestee's subsequent acquittal on charges of molesting his seven-year-old daughter, the arresting officer had probable cause for the arrest, based on an investigation conducted following an anonymous tip, which included information about the daughter's comments to a friend, and the child's own confirmation of the allegations during an interview. Ditsler v. Hernandez, No. 05-55579, 2007 U.S. App. Lexis 6478 (9th Cir.).

     Police detective had probable cause to arrest man for violating an order of protection, based on a complaint by the victim indicating a violation, a copy of the protective order, and a discussion the detective had with the prosecutor's office concerning the protective order before placing the suspect under arrest. Morales v. City of N.Y., No. 05-4992, 2006 U.S. App. Lexis 31484 (2nd Cir.).

False Arrest/Imprisonment: Warrant

     Seizure of arrestee by constable acting to execute a facially valid arrest warrant found to be supported by probable cause, barring a claim for false arrest. Pierre v. Warrick, No.: 4:05-CV-1915, 2007 U.S. Dist. Lexis 11838 (M.D. Pa.).

Firearms Related: Licenses, Regulations, and Other Issues

     Federal appeals court rules that the Second Amendment to the U.S. Constitution protects the right of an individual to keep and bear firearms, and that exercise of that right is not limited to persons enrolled in a state militia or National Guard unit. Court reinstates lawsuit seeking to challenge D.C. laws prohibiting the registration of handguns, requiring a license to carry a pistol, and mandating that all firearms lawfully owned in the District be contained in a trigger lock or else be kept disassembled and unloaded. Parker v. D.C., No. 04-7041, 478 F.3d 370 (D.C. Cir. 2007).

Firearms Related: Intentional Use

     Police officers acted reasonably in shooting and killing an arrestee who had refused to submit to their attempts to handcuff him, when they believed that he had his hands on or near one officer's gun, which had come loose during the struggle between them. Officers are not required to wait to take action to protect their safety until a resisting arrestee has completely freed himself and has obtained a "firm grip" on a weapon. Henning v. O'Leary, No. 06-2378, 2007 U.S. App. Lexis 3380 (7th Cir.).

Firearms Related: Negligent Use

     In a lawsuit over a police officer's shooting and killing of a woman under the influence of drugs, armed with knives, who was believed to pose a threat to herself or relatives, the jury found the decedent to be 5% negligent, the city to be 45% negligent, and the officer to be 50% negligent. The evidence, however, was insufficient to show direct negligence by the city, so there was no basis for allocating a portion of the damages to the municipality under California law. Because the jury's assessment of fault in the case indicated that the officer was 10 times more at fault that the decedent, liability should be divided to make the decedent 9% at fault, and the officer 91% at fault. Munoz v. City of Union City, No. A110121, 2007 Cal. App. Lexis 278 (1st Dist.).

First Amendment

     Removal of man from public city council meeting did not violate his First Amendment rights when he was removed because he was being disruptive and not because of the views he expressed. Dehne v. City of Reno, No. 04-17200, 2007 U.S. App. Lexis 4044 (9th Cir.).

     Protesters who wanted to engage in non-disruptive expressive activity during a Memorial Day air show at a city airport were entitled to injunctive relief against the enforcement of rules that would prevent such activities. Wickersham v. City of Columbia, No. 06-1922, 2007 U.S. App. Lexis 6600 (8th Cir.).

     City's ordinances restricting the operation of sexually oriented businesses within 800 feet of residences, schools, churches, and other such businesses, as well as other designated areas, were adequately supported by studies from nine cities concerning the alleged harmful secondary effects of adult businesses, as well as data concerning land use in the city. The ordinances were upheld as narrowly tailored to achieve substantial governmental interests. Further proceedings were ordered to determine whether the ordinances allowed sufficient alternative opportunities for communication. H and A Land Corp. v. City of Kennedale, Tex., No. 05-11474, 2007 U.S. App. Lexis 3941 (5th Cir.).

     Small town's zoning law restricting the available locations for adult book stores was not unconstitutionally vague, and provided the owner of one such store with adequate alternative locations to move to. IL One News, Inc. v. City of Marshall, No. 06-1828, 477 F.3d 461 (7th Cir. 2007)

     Public university could lawfully require off-campus "solicitors" to seek prior approval for on-campus activities and to limit their activities to a sidewalk in front of the student union. Application of these rules to prohibit an evangelist from preaching on the lawn of the campus library did not violate his First Amendment free speech rights. The evangelist failed to show that any other uninvited outsider was ever allowed to use that lawn for any activity. Gilles v. Blanchard, No. 06-1441, 2007 U.S. App. Lexis 3234 (7th Cir.).

Governmental Liability: Policy/Custom

     Hotel operators did not show that a city had an official policy, practice or custom concerning what to do when a tenant claimed he had been unlawfully locked out of his room, barring any claim for municipal liability. Officers responding to a tenant's complaint concerning such a "lockout" also did not actually arrest hotel operators, and the mere threat of an arrest, under the circumstances, did not violate their Fourth Amendment rights. Cruz v. City of Los Angeles, No. 04-57160, 2007 U.S. App. Lexis 6245 (9th Cir.).

Negligence: Vehicle Related

     Factual issues as to whether a police officer acted recklessly and caused an auto accident barred summary judgment for the city in a lawsuit brought by injuries parties. At the time of the incident, the officer was responding to a police dispatch, but it was not an emergency call, and he did not have his siren or emergency lights activated, and made a left turn despite limited visibility. Muniz v. City of Schenectady, No. 501392, 2007 N.Y. App. Div. Lexis 2246 (3rd Dept.).

     Further proceedings were required to determine whether an officer whose vehicle struck and injured a child while driving to work was acting within the scope of his employment at the time. He was operating a marked "take-home vehicle," was in uniform, and had left an hour early for work because he wanted to study for a lieutenant's exam. Garcia v. City of Hollywood, No. 4D06-970, 2007 Fla. App. Lexis 2410 (4th Dist.).     

Off-Duty/Color of Law: Firearms Related

     City succeeded in showing that it was not vicariously liable for injuries caused by an off-duty police detective's shooting of a man, but further proceedings were required on claims that the city itself had been directly negligent in connection with the shooting. Barton v. City of New York, No. 12404/98, 2007 N.Y. Misc. Lexis 780 (Sup. Ct. Kings County).

     Police officer, in shooting and killing a man, did not primarily act in his capacity as a crossing-guard for a church by which he was employed, but in his capacity as a police officer and for purposes of his own self-defense, so that the church could not be held vicariously liable for his actions. Roberts v. City of Shreveport, No. 05-31135, 2007 U.S. App. Lexis 3026 (5th Cir.).

Other Misconduct: Foreign Arrestees

     Further proceedings ordered by federal appeals court as to whether the failure of police officers or other officials to inform a foreign national (a citizen of India) arrested for aggravated battery with a firearm of his right to consular notification under Article 36 of Vienna Convention on Consular Relations violated his rights. The appeals court ruled that the issue should be resolved under the federal civil rights statute 42 U.S.C. Sec. 1983, but did not expressly rule on whether a violation of the Vienna Convention could give rise to a private remedy. Jogi v. Voges, No. 01-1657, 2007 U.S. App. Lexis 5713 (7th Cir.).

Police Plaintiff: Firearms Related

     Shooting of deputy sheriff in courtroom by a criminal defendant who had previously indicated that he might engage in violence if convicted did not provide a basis for liability by the county for allegedly failing to take adequate security steps to prevent the shooting. Even if it could be said that the county disregarded a known risk of harm to the deputy, as an employee, that would be insufficient to establish a violation of his due process rights. The deputy was paid to help guard the courtroom, and he was not placed in danger, rather, he "volunteered" to be exposed to possible danger by agreeing to do his job. Witkowski v. Milwaukee County, No. 06-3627, 2007 U.S. App. Lexis 5761 (7th Cir.).

Police Plaintiff: Premises Liability

     Police officer could properly be awarded damages for injuries he suffered when he slipped and fell because of ice that formed at the bottom of a flight of stairs leading to a subway station. The jury could reasonably have concluded that the transit authority had constructive notice of the presence of the ice, which was an inch thick, but failed to remedy it. Anthony v. N.Y. City Transit Authority, 2005-08085, (Index No. 39516/96), 2007 N.Y. App. Div. Lexis 2550 (2nd Dept.).

Police Plaintiff: Products Liability

     Federal trial court certifies class action lawsuit by Ohio state troopers and a police department concerning whether the defendant company engaged in the sale of defective bullet-resistant body armor to police departments across the U.S. Variations in the warranty laws of various states did not alter the fact that the purchasers of the vests had received identical five-year warranties, and that common legal issues concerning whether the vests were defective justified a class action to resolve the plaintiffs' claims. Southern States Police Benevolent Association v. First Choice Armor & Equipment, Inc., No. 06-10034, 2007 U.S. Dist. Lexis 18372 (D. Mass.).

Privacy

     Plaintiffs who claimed that Florida officials sold personal information from their driver's licenses and/or vehicle registrations to mass marketers failed to establish a claim for violation of their constitutional rights, but they could pursue a claim under the federal Driver Privacy Protection Act (DPPA), 18 U.S.C. Sec. 2721-2725 and 42 U.S.C. Sec. 1983. The protections of the DPPA as to the privacy of driver's license data were specific enough to clearly establish what conduct was prohibited and thereby overcome any defense of qualified immunity. Collier v. Dickinson, No. 06-12614, 2007 U.S. App. Lexis 3111 (11th Cir.).

Public Protection: Crime Victims

     Plaintiff failed to show a basis on which a transit authority should be held liable for the murder of her son by an unknown attacker at a train station. Briggs v. Washington Metro Area Transit Auth., No. 06-7037, 2007 U.S. App. Lexis 7058 (D.C. Cir.).

Public Protection: Disturbed/Suicidal Persons

     Police officers had probable cause to detain an allegedly suicidal paraplegic woman as well as exigent circumstances justifying their warrantless entry into her home to seize her without a warrant, based on statements that her 12-year-old son made to a 911 operator that she was "going crazy," and "trying to kill herself." Officers could not be held liable for violation of her federal civil rights even if their actions arguably did not comply with all provisions of an Oklahoma state statute dealing with emergency detention of mentally ill persons. West v. Keef, No. 05-6353, 2007 U.S. App. Lexis 5846 (10th Cir.).

Pursuits: Law Enforcement

     Factual issues as to whether a police officer intentionally bumped a motorist's car during a high-speed chase and caused his death required the reversal of a summary judgment for the officer in a civil rights lawsuit over the death. Pasco v. Knoblauch, No. 06-60059, 2007 U.S. App. Lexis 5742 (5th Cir.).

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     Media Issues:  "Working with the Media in Times of Crisis," by James D. Sewell, 76 FBI Law Enforcement Bulletin No. 3, pgs. 1-6 (March 2007). "Agencies can follow several key principles to ensure that they are ready to handle media attention." [.html version]

     Search and Seizure: "Getting Schooled in the Fourth Amendment," by Lucy Ann Hoover, 76 FBI Law Enforcement Bulletin No. 3, pgs. 22-32 (March 2007). "Law enforcement officers must know Fourth Amendment boundaries when conducting student searches on school grounds." [.html version]

     Technology: "License Plate Recognition Technology," by Arthur Gordon and Ross Wolf, 76 FBI Law Enforcement Bulletin No. 3, pgs. 8-13 (March 2007). "While this technology may not be perfect, it still is a significant resource for helping law enforcement officers combat crime." [.html version]

    Terrorism, Homeland Security, National Security Issues: "Financing Terror," by Dean T. Olson, 76 FBI Law Enforcement Bulletin No. 2, pgs 1- 5 (Feb. 2007). "From stolen baby formula to intellectual property theft, terrorist groups employ a variety of criminal schemes to raise funds." [.html version]

    Terrorism, Homeland Security, National Security Issues: Special Report: A Review of the Federal Bureau of Investigation's Use of National Security Letters, U.S.D.O.J. office of the Inspector General (March 9, 2007).

     Terrorism, Homeland Security, National Security Issues: A Review of the Federal Bureau of Investigation’s Use of Section 215 Order for Business Records, U.S.D.O.J. office of the Inspector General (March 2007).

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

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