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Assault and Battery: Chemical

     Utah state troopers were entitled to qualified immunity on their use of pepper spray on a motorist who continued to resist them and disregard their instructions throughout a fifty-minute traffic stop. Under these circumstances, the troopers acted objectively reasonably in using pepper spray against her. Mecham v. Frazier, No. 05-4297, 2007 U.S. App. Lexis 21810 (10th Cir.).

Assault and Battery: Physical

     New Jersey state troopers were not entitled to qualified immunity in a lawsuit by a traffic stop arrestee who claimed that he was grabbed by the neck and choked after he threatened to urinate in the officers' vehicle, and that they repeatedly hit him in the head with a flashlight while removing him from the car. The plaintiff also claimed that the officers kept kicking and punching him after he was restrained on the ground. If the arrestee's version of the incident were believed, a reasonable jury could find that the officers' actions were improper under the circumstances. Green v. New Jersey State Police, No. 06-4111, 2007 U.S. App. Lexis 20693 (3rd Cir.).

Assault & Battery: Stun Guns/Tasers

     There were genuine issues of fact as to whether a police officer's use of a taser twice against an arrestee was reasonable, when the arrestee claimed that he was not resisting and laying on the hood of a police car at the time. Additionally, prior to the officer's second use of the taser, a state trooper on the scene allegedly urged the officer, "Don't do it." Money damage claims against the State of Delaware and the state trooper in his official capacity were barred by the Eleventh Amendment. Yarnall v. Mendez, No. 05-527, 2007 U.S. Dist. Lexis 66639 (D. Del.).

     Following a bench trial, a federal judge entered judgment in favor of arresting officers in a lawsuit brought by a residential burglary arrestee who was tased five times during the course of his arrest. Each use of the taser lasted five seconds, and all five uses of the taser took place within an 85 second time period. The first use of the taser was clearly justified to stop the suspect from fleeing, at a time when the first officer was alone with the fleeing suspect. The court further held that, at the time of the arrest, the law concerning excessive force claims involving the use of tasers would not clearly indicate to a reasonable officer that multiple tasings under these circumstances violated the arrestee's rights. Beaver v. City of Federal Way, No. C05-1938, 2007 U.S. Dist. Lexis 64665 (W.D. Wash.).

Defenses: Statute of Limitations

     Civil rights claims arising from the plaintiff's 1980's arrest, prosecution, trial, and sentencing was time-barred under a Pennsylvania state two-year statute of limitations because the events at issue occurred over 20 years ago. Additionally, a false imprisonment claim was barred because the plaintiff was released from prison in March of 2003 and did not file a lawsuit until more than two years later. Hewlett v. Abraham, No. 07-1931, 2007 U.S. App. Lexis 18788 (3rd Cir.).

Domestic Violence

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

     Spouse of a police officer who shot and injured her before shooting and killing himself did not show a violation of her substantive or procedural due process rights on the basis of the police department's failure to arrest him when she previously reported incidents of abuse after obtaining protective orders. The mere failure to act did not violate her rights or bring his assault on her within the bounds of a "state-created danger" theory of liability. The appeals court also rejected the spouse's equal protection claim, since there was no evidence from which a reasonable jury could find an unlawful custom or believe that a discriminatory motive was behind the failure to arrest the plaintiff's husband. There was no constitutional duty to protect the plaintiff from abuse by her spouse. Burella v. City of Philadelphia, No. 04-1157/2495, 2007 U.S. App. Lexis 21924 (3rd Cir.).

     Man arrested during a domestic disturbance did not assert a valid false arrest claim when a Connecticut statute required the officers to place persons suspected of family violence under arrest. The dismissal of charges against him in exchange for his agreement to attend counseling was not a favorable disposition in the arrestee's favor for purposes of a malicious prosecution claim. The arrestee could proceed, however, on his claims for excessive use of force and failure to provide needed medical attention. Clark v. Dowty, No. 3:05-cv-1345, 2007 U.S. Dist. Lexis 49184 (D. Conn.).

False Arrest/Imprisonment: No Warrant

     A federal trial court acted erroneously in deciding a motion for judgment as a matter of law in a false arrest lawsuit in favor of the defendants when it first made factual findings against the plaintiff, instead of viewing the evidence, for purposes of the motion, in the most favorable light to his version of the arrest. Further proceedings were therefore required. The case involved the arrest of a protester who allegedly intentionally blocked a truck as it attempted to enter a construction site. Zellner v. Summerlin, No. 05-6309, 494 F.3d 344 (2nd Cir. 2007).

     Woman arrested at airport during a money laundering sting operation, which involved a passenger on a private plane she co-piloted, failed to show that her arrest was made without probable cause. Arresting officers need not have personal knowledge of the facts that established probable cause, and probable cause can be based on the collective knowledge of the officers involved in the operation. Willis v. Neal, No. 06-5695, 2007 U.S. App. Lexis 21868 (6th Cir.).

     Officers summoned to a store because of suspicions that a $100 bill presented by a customer was counterfeit were not certain whether it was or not, and decided to call the U.S. Secret Service for an expert opinion. The officers still placed the customer under arrest, however, on a federal currency violation, purportedly because they thought that the investigation would proceed in the easiest manner if the suspect was at the police station. The bill subsequently was determined to be genuine. Under these circumstances, a federal appeals court ruled, the officers lacked probable cause to believe that the arrestee had committed a crime, so they were not entitled to qualified immunity. Rodis v. City & County of San Francisco, No. 05-15522, 2007 U.S. App. Lexis 20689 (9th Cir.).

     Officers had probable cause to arrest a man observed receiving something in a hand-to-hand transaction in a high drug crime area, who then held his right hand in a cupped manner believed to be for the purpose of concealing an item. The arrestee also placed his hand to his mouth when he saw the deputies approaching, and then refused an order to open his mouth, and appeared to be trying to chew something. Rock cocaine was found when the suspect obeyed an order to spit out the item. The court rejected the argument that the arrest lacked probable cause or that the officers engaged in racial profiling. The mere fact that the charges were subsequently dropped as part of a plea bargain did not alter the fact that the arrest was proper. Dampier v. Donagliaf, No. C05-1954, 2007 U.S. Dist. Lexis 56404 (W.D. Wash.).

     Investigating police officer had probable cause to arrest female schoolteacher for alleged sexual molestation of a ten-year-old female student, based on the student's statements during an interview and notes that the student had passed to a fellow student. John v. City of El Monte, No. 05-56125, 2007 U.S. App. Lexis 22738 (9th Cir.).

False Arrest/Imprisonment: Warrant

     Even if, as the arrestee claimed, deputies falsified certain information in applying for an arrest warrant, there was still sufficient information left supporting a finding of probable cause, so that the deputies were entitled to qualified immunity in a subsequent false arrest lawsuit. Further proceedings were ordered, however, on whether the arresteee, who was deaf, was subjected to violation of his rights under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132 following his arrest. Robertson v. Las Animas County Sheriff's Dept., No. 06-1027, 2007 U.S. App. Lexis 21706 (10th Cir.).

Family Relationships

     Officers were justified in removing a newborn daughter from her parents' home when the father had been indicted for child molestation. The removal of a toddler son from the home, prior to that indictment, was also justified by the possibility that both parents might commit suicide, since one had threatened to do so, and the other had attempted it. The officers believed that there was an imminent risk that the son, then one year old, might not have a caretaker available to provide for his needs. Additionally, his presence on the scene during these events could raise the possibility that he would be subject to psychological injury. Rhode Island state law did not require a finding of abuse of the individual child before removing that child from the home, and removal of a child could instead be supported by an imminent serious risk of neglect. Carter v. Lindgren, No. 06-2539, 2007 U.S. App. Lexis 21471 (1st Cir.).

Firearms Related: Intentional Use

     An officer's mistaken use of his handgun, rather than the taser, which he allegedly intended to shoot an arrestee with, did not change the fact that the shooting constituted a seizure for purposes of the Fourth Amendment. Further proceedings were ordered on the issue of whether the seizure was unreasonable v. Henry v. Purnell, No. 06-1523, 2007 U.S. App. Lexis 22436 (4th Cir.).

     If a vehicle had come to a stop with the engine running, and suspects in the car had their hands in the air or on the steering wheel when officers approached, then an officer who shot and killed a 16-year-old in the vehicle would not have acted reasonably. If, on the other hand, as the officer claimed, the car was backing up, and threatened the safety of the officers or others, the result could be different. Genuine issues of disputed material fact, therefore, barred qualified immunity for the officers. Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.).

     If the facts were as alleged by the plaintiff, a jury could find that no reasonable officer would have shot and killed her son, who allegedly posed no immediate risk of death or serious injury to anyone. Further proceedings were therefore ordered on the claims against the shooting officer. Claims against a second officer, however, were properly rejected when he lacked sufficient time to prevent the shooting officer's alleged use of excessive force. Murray-Ruhl v. Passinault, No. 05-2607, 2007 U.S. App. Lexis 21573 (6th Cir.).

First Amendment

     Eleven arrestees who claimed that FBI agents who interrogated them improperly interrogated them about their political activities and affiliations and then improperly disseminated that information, in violation of their First and Fourth Amendment rights, were not entitled to injunctive relief even if those allegations were true. They failed to show that the alleged past wrongful conduct would subject them to a threat of future injury or continuing harm, particularly when the records derived from the arrests had been expunged. Bolger v. District of Columbia, Civil Action No. 03-0906, 2007 U.S. Dist. Lexis 66716 (D.D.C.).

     There is no constitutional right to enter a federal building anonymously, so that the U.S. Marshals Service and Federal Protective Service did not violate the plaintiffs' constitutional rights by refusing them access to a federal building on the basis of an identification policy. The defendants also acted reasonably in removing one of the plaintiffs from the federal building, after he tried to enter without complying with their orders. Foti v. McHugh, No. 05-16079, 2007 U.S. App. Lexis 20996 (9th Cir.).

     A city's action in barring an artist from selling his paintings on city sidewalks and parks violated his First Amendment rights when the city barred such sales except for vendors having permits or whose merchandise was found to convey an "express or obvious" religious, political, philosophical, or ideological "message." The self-expression of the artist, embodied in his paintings, were also protected First Amendment speech even if it merely expressed his "perspective," including the "sanctity" of nature, other than an "obvious" message. Additionally, the mere fact that the artist sold his work did not make it commercial speech because it expressed more than simply "proposing" a commercial transaction. Federal appeals court upholds partial summary judgment for the artist's First Amendment challenge to the city's vendor-permitting scheme, found by the trial court to be an invalid prior restraint and to lack required objective criteria for the approval or rejection of artwork for sale on public property. White v. City of Sparks, No. 05-15582, 2007 U.S. App. Lexis 20621 (9th Cir.).

Governmental Liability: Policy/Custom

     Underage police volunteer used in an underage alcohol sting operation claimed that a police officer told her that nude photos would have to be taken of her to show that she was not wearing a tape recorder. He also allegedly took semi-nude photos of her for a fabricated child pornography investigation. A federal court ruled that the city and its police chief were not liable for the officer's alleged violations of the volunteer's constitutional rights. The officer did not make policy for the city, and the police chief's alleged knowledge that the officer had previously taken nude photos of a consenting female officer did not put him on notice that the officer might violate an underage volunteer's rights. The court also rejected a claim concerning inadequate training, since the officer would know that his alleged conduct was wrong without needing training on the subject. Wilson v. City of Norwick, Civil Action No. 3:02-CV-1026, 2007 U.S. Dist. Lexis 65352 (D. Conn.).

Landlord-Tenant Conflicts

     Landlord's rights were not violated by the alleged refusal of police officers to enforce a court order she obtained to oust a squatter from her property. The landlord did not show that she was legally entitled to police assistance in enforcing an eviction order issued by the courts, and she could not show a violation of equal protection, as there was no claim that the officers refused to carry out the eviction on the basis of her race or gender. Trask v. City of Chicago, No. 06-4237, 2007 U.S. App. Lexis 21051 (7th Cir.).

Negligence: Vehicle Related

     Intermediate Florida appeals court overturns jury award of $81,250.44 to motorcyclist injured when he struck the rear of a state trooper's car after the trooper pulled onto the road to pursue a vehicle. A jury had found the plaintiff 85% at fault and the state trooper 15% at fault. The appeals court found that the trial court should have granted a motion for a directed verdict for the defendant since there was insufficient evidence to refute a presumption of negligence on the part of a motorist who strikes the rear of another vehicle. In this case, there was no showing that the state trooper was engaged in a sudden stop or lane change, and evidence presented at the trial showed that the sole cause of the accident was the plaintiff's own negligence in going between 80 to 85 miles per hour when the speed limit was 55. Dept. of Highway Safety v. Saleme, No. 03D06-1033, 2007 Fla. App. Lexis 14259 (Fla. App. 3rd Dist.).

Off-Duty/Color of Law: Assault & Battery

     Off-duty deputy sheriff was not entitled to qualified immunity on woman's claim that he violated her rights and used excessive force against her by grabbing her without provocation, and then tossed her down the stairs after they engaged in an argument following a movie that they both separately attended. The deputy was allegedly upset about the woman's talking during the film, and had told her to "shut up" and made a racial slur about her Hispanic background. The appeals court found that it was without jurisdiction to hear the deputy's appeal of the trial court denial of his motion for qualified immunity, since he relied on his (disputed) version of the facts, rather than on a legal argument. Arnold v. Curtis, No. 06-4080, 2007 U.S. App. Lexis 18509 (10th Cir.).

Police Plaintiff: Premises Liability

     In a lawsuit against the City of New York by a police officer who tripped and fell on a stairway while engaged in responding to a domestic violence complaint at another officer's apartment, common law negligence claims were barred by the firefighter's rule. The officer could, however, pursue claims against the city under General Municipal Law Sec. 205-e based on purported violations of the City's obligation under its administrative code to maintain illumination in a building's exits and stairways. Sec. 205-e grants police officers the right to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. The officer claimed that she could not be sure of the cause of her fall because of the lack of lights at the building on the stairway and rear exit. Foley v. City of New York, No. 1485, 2007 N.Y. App. Div. Lexis 9695 (A.D. 1st Dept.).

Procedural: Discovery

     When a sheriff was no longer a defendant in a lawsuit over a deputy's shooting of a man allegedly fleeing following the commission of a misdemeanor, he was entitled to a protective order limiting any questioning of him to only events that occurred in his presence. Sulfridge v. Huff, No. 3:05-cv-188, 2007 U.S. Dist. Lexis 67114 (E.D. Tenn.).

Public Protection: Informants

     Police informant claimed that the officer who recruited him was present and involved in his shooting, and that the police department failed to adequately investigate the officer's role in that incident as part of hiding the officer's involvement in a drug enterprise. The trial court denied motions to dismiss claims for conspiracy and denial of equal protection for failure to investigate, while finding that the statute of limitations barred a claim for failure to protect the informant from the shooting. Rennick v. City of Cincinnati, No. 1:06-CV-00580, 2007 U.S. Dist. Lexis 56198 (S.D. Ohio).

Public Protection: Motoring Public and Pedestrians

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

     Police officer's alleged failure to remove a drunk driver, a fellow officer, from the road, was insufficient to impose liability on him for injuries others later suffered when they were hit by his car. A federal appeals court found that the officer's alleged failure to act did not "create" the danger, and that the drunken officer would have been in the same condition even if he had not encountered his fellow officer. Bilbili v. Klein, No. 05-3496, 2007 U.S. App. Lexis 20694 (3rd Cir.).

Public Protection: Rescue Situations

     Paralegals and police officers were not entitled to immunity under California law in lawsuit contending that they took actions which increased the risk that a man would die from him bullet wounds when they allegedly prevented other persons from assisting him or taking him to the hospital. The plaintiff decedent's estate alleged that the defendants acted in bad faith or with gross negligence. Mitchell v. County of San Diego, No. 05-56657, 2007 U.S. App. Lexis 16155 (9th Cir.).

RICO

     Arrestee who claimed that deputies shot him numerous times in an attempt to murder him failed to allege a pattern of racketeering activity as required for a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. Sec. 1961, et seq., when all of the acts he claimed had occurred arose from the single incident. Curry v. Baca, No. CV 04-9992, 2007 U.S. Dist. Lexis 56817 (C.D. Cal.).

Search and Seizure: Home/Business

     After a patron of an auto business complained that the vehicle identification number (VIN) on a car he bought there did not match the car's VIN sticker, officers carried out an administrative search of the business, detaining its employees for 10 hours, searching employees, advancing with drawn weapons, seizing 150 cars, and seizing voluminous records. A federal appeals court ruled that the limited scope of an administrative search was exceeded, and that the "massive" show of force presented by the officers was more typical of a criminal raid, which requires a search warranty. There were also disputed issues as to whether or not the search was part of an "illegal plan" designed to oust the business from the area. Bruce v. Beary, No. 06-15304, 2007 U.S. App. Lexis 21283 (11th Cir.).

Search and Seizure: Person

     Police officer was justified in reaching into the pockets of a man who repeatedly attempted to evade a frisk after he emerged from his hotel room with his hands in his pockets. The man appeared to the officer to be on drugs or mentally ill, and had previously refused to leave the hotel room after check-out time. The officer could reasonably believe, under the circumstances, that the suspect's concealed hands represented a safety risk, was justified in reaching into the pockets to determine whether any weapons were present. After the officer found a glass methamphetamine pipe in a pocket, he had probable cause to make an arrest for a drug offense. As there was no violation of the arrestee's constitutional rights, summary judgment in favor of the defendant officer was appropriate. Inouye v. Kemna, No. 06-15474, 2007 U.S. App. Lexis 21879 (9th Cir.).

Search and Seizure: Vehicle

     Officers had sufficient grounds to stop the plaintiff's truck, based on information from witnesses who reported seeing fireworks being set off from a dark colored pickup truck in the area. There was, therefore, no unlawful search and seizure. Miller v. O'Bryan, No. 1:05-CV-0429, 2007 U.S. Dist. Lexis 56911 (N.D.N.Y.).

    Officer's observation of a motorist's defective brake lights was sufficient to support a traffic stop of his vehicle. A federal appeals court rejects the motorist's argument that the officer acted improperly by allegedly pulling him over because his vehicle was "run down," rejecting a claim for supposed "economic profiling." Steskal v. Benton County, No. 06-35053, 2007 U.S. App. Lexis 20415 (9th Cir.).

•Return to the Contents menu.

     Criminal Investigation: "Police Lineups: Making Eyewitness Identification More Reliable," by Beth Schuster, NIJ Journal No. 258 (October 2007). Published by the National Institute of Justice of the U.S. Department of Justice.

      Body Armor: Updated Body Armor pages. "More than 3,000 police officers' lives have been saved by body armor since the mid-1970s when NIJ began testing and developing body armor and performance standards for ballistic and stab resistance. Recognition and acceptance of the NIJ standard has grown worldwide, making it the performance benchmark for ballistic-resistant body armor. NIJ's Body Armor Web pages discuss the Body Armor Safety Initiative; explains the results of body armor research and explores future research; provides information on standards and testing; and offers links to resources that help agencies select and fund body armor purchases." (August 30, 2007).

    Domestic Violence: Intimate Partner Violence. "NIJ researchers have examined the nature and effects of this crime, and whether the most common law-enforcement, court-ordered, and correctional interventions work. These web pages summarize key research findings, and links to other sources of information and assistance. " (September 25, 2007).

     Search and Seizure: "Search Incident to Arrest in the Age of Personal Electronics," by Michael J. Bulzomi, FBI Law Enforcement Bulletin, Vol. 76, Number 9 pgs 26-32 (September 2007). "Electronic devices with varying storage capacities present officers with unique challenges during searches incident to arrest." [PDF] [HTML]

     Use of Force: "The Dynamic Resistance Response Model," by Charles Joyner and Chad Basile, FBI Law Enforcement Bulletin, Vol. 76, Number 9 pgs 15-20 (September 2007). "This approach offers several advantages for officers when making use of force decisions."  [PDF] [HTML]

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

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