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Assault and Battery: Chemical

     A federal jury returned a $2.58 million verdict against the town of Cicero and five officers, as well as a jail employee for actions taken during a September 2000 baptismal party in which 79 plaintiffs claimed that officers used pepper spray against attendees. The award was made in favor of 23 of the plaintiffs, which no damages were awarded to 56 of the plaintiffs. Alejandro Duran, et al. v. Town of Cicero, et al., No. 01 C 6858 (U.S. District Ct., N.D. Ill.), reported in Chicago Daily Law Bulletin, Volume: 154 Issue: 033 (February 15, 2008).

Assault and Battery: Physical

     The legal standard for excessive use of force by police officers under the New Jersey state Constitution is the same as the objective reasonableness standard under the Fourth Amendment of the U.S. Constitution. Court rejects claims by a wife and her sister that officers, in arresting them following the wife's fight with her husband's girlfriend, used excessive force against them. The court found that the wife failed to comply with an officer's request to surrender a cell phone and enter a police vehicle voluntarily and the sister also refused to obey instructions from an officer, justifying the amount of force used. Norcross v. Town of Hammonton, Civil No. 04-2536, 2008 U.S. Dist. Lexis 9067 (D.N.J.).

     Police officers were not shown to have used excessive force in executing warrants on suspect accused of burglary who was known to be a convicted felon who had previously been involved in crimes involving weapons, and who the officers believed to be dangerous. Even if the force used against the suspect and other plaintiffs present at the time had been excessive, it did not violate clearly established rights. Massaro v. Town of Trumbull, No. 3:05-CV-00786, 2007 U.S. Dist. Lexis 91502 (D. Conn.).

Assault and Battery: Taser

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

     Federal court rules that it is clearly established that it is unreasonable to Taser a person who was suspected of a minor, non-violent offense, and to do so without a prior warning, In this case, the court found, the plaintiff had not attempted to flee, gave no indication of violence, and was not warned before the Taser was used against her. Additionally, there were four officers present at the time, and the female plaintiff's husband had already been secured in the squad car at the time. The plaintiff merely allegedly disobeyed orders to cease talking on a phone to a 9-1-1 operator. The officer was not entitled to summary judgment. Brown v. City of Golden Valley, No. 06-3141, 2008 U.S. Dist. Lexis 11300 (D. Minn.).

Defenses: Statute of Limitations

     An arrest and the shooting of the arrestee occurred in 1998, so that any lawsuit filed over the incident was time-barred by Michigan's three-year statute of limitations, and was properly dismissed when it was not filled until 2002. No "tolling" (extension) of the time period was justified, since the arrestee stated that he was conscious "before, during, and after" the time he was shot, and that he took the position, at the time of the incident, that he had been deliberately shot by the officer without provocation, allegedly in order to "cover up" the shooting officer's accidental shooting of a fellow officer during the arrest. Drake v. City of Detroit, No. 06-1817, 2008 U.S. App. Lexis 4224 (6th Cir.).

Domestic Violence

     Claims were properly asserted against municipality and its personnel for alleged failure to protect two victims of domestic violence from being murdered after receiving information of a man's alleged plan to engage in a murder for hire scheme. The man had engaged in a pattern of abuse, according to the plaintiffs, while living with a woman, who then obtained protective orders against him. Subsequently, the man's chiropractor allegedly contacted police and reported that the man had been asking if there was anyone who could be hired to kill the woman or "break her legs." The Complaint alleges that the failure to protect the woman and another family member who was also murdered at the same time violated the Illinois Domestic Violence Act, 750 ILCS 60/101 et seq. An intermediate Illinois appeals court found that the alleged willful and wanton failure to provide protection under the circumstances was adequate to survive a motion to dismiss, and that the provisions of a state Tort Immunity Act did not override the protections provided by the Domestic Violence Act. The court also ruled, however, that the second murder victim, who was not named in the protective order, was not a protected person under the statute, so that claims involving her death were properly dismissed. Lacey v. Village of Palatine, No. 1062842, 2008 Ill. App. Lexis 61 (Ill. App. 1st Dist.).

     A woman who was shot and injured by her husband after obtaining a protective order against him under Texas law, established a factual issue as to whether police violated state law in failing to follow the provisions of a state domestic violence statute. The plaintiff, however, failed to provide evidence that the alleged failure to enforce the state law was motivated by discriminatory intent against women. Her allegation that officers threatened to take away her children if she kept calling to complain about her husband did not establish such discriminatory intent. The city, a police chief, and a police officer were therefore entitled to summary judgment. Kelley v. City of Wake Village, Texas, No. 07-40227, 2008 U.S. App. Lexis 2441 (5th Cir.).

False Arrest/Imprisonment: No Warrant

     Police had probable cause to arrest suspect on drug charges on the basis of an anonymous tip that was detailed, and a subsequent controlled buy of drugs, as well as other evidence. The claim that a "lame" explanation was provided for a delay of several weeks between the controlled buy and the arrest did not alter this result. Hernandez v. City of Union City, No. 06-2367, 2008 U.S. App. Lexis 3031 (3rd Cir.).

     Officers' warrantless arrest of a man was sufficiently justified by the statements of two adult witnesses to his alleged crime and their independent investigation, which indicated that these witnesses appeared to be trustworthy. The officers, once they had probable cause, were not constitutionally required to independently investigate the arrestee's claim of innocence, and the arrestee did not show that the officers knew anything at the time of his arrest that would have negated their belief that there was probable cause. The seizure of his vehicle without a warrant was also justified, as the officers believed that it would contain evidence concerning an alleged kidnapping. Tensley v. City of Spokane, Washington, No. 06-35723, 2008 U.S. App. Lexis 3899 (9th Cir.).

     Officer had probable cause to arrest teacher on charges of allegedly molesting a female student. The officer could rely on the student's accusations, along with his experience and special training in dealing with child sexual abuse. Despite the fact that the prosecutor subsequently declined to prosecute the case, the officer was entitled to summary judgment. John v. City of El Monte, No. 05-56125, 2008 U.S. App. Lexis 2509 (9th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     A police officer acted reasonably in detaining two suspects in an auto theft investigation on the basis of a "be on the lookout" (BOLO) report when the suspects matched the description of the persons sought. The BOLO said that the suspects were young black males, one wearing a white jersey and one wearing a blue jersey, and one having corn rows in his hair. While the officer may not have needed to display his weapon or order the suspects on the ground in order to detain them until the highway patrol arrived, he did not deliberately violate their rights, and was entitled to qualified immunity on a claim that the manner of the detention was unreasonable, as well as on an excessive force claim. The fact that those detained were not the suspects sought did not alter the result. While Dorsey v. Barber, No. 05-4235, 2008 U.S. App. Lexis 3650 (6th Cir.).

     Police officer's stop and detention of a woman, when based entirely on an anonymous tip that she was carrying a gun while walking a dog, with no indication of its reliability did not appear to be supported by reasonable suspicion of criminal activity. Additionally, as the officer had handcuffed this suspect, and she posed no threat to anyone, and there was no evidence of exigent circumstances, the officer's warrantless entry into the suspect's home was not lawful. The officer was not entitled to qualified immunity. Holloway v. Vargas, No. 06-4138, 2008 U.S. Dist. Lexis 9672 (D. Kan.).

     Deputy called to the scene of a residential fire was justified in at least briefly detaining a woman found at the residence when he had been advised by fire department officials that a woman was "barricaded" in the building and refusing to come out, and the woman was behaving "irrationally" and in a "highly agitated' way at the time. At the time of the detention, the possibility that the fire was the result of arson had not been ruled out. Bell-Hayes v. Dewitt, No. 06-1683, 2008 U.S. App. Lexis 3125 (4th Cir.).

False Arrest/Imprisonment: Warrant

     Police chief did not violate an assistant chief's constitutional rights to be violated by having an arrest warrant issued for him after he was told that the assistant chief had threatened to shoot him. Additionally, a federal appeals court rules, there was no evidence that the city's policies or customs caused the alleged violations of the arrestee's rights. The fact that charges were ultimately not pursued against the arrestee did not alter the result. De Angelis v. City of El Paso, No. 06-51396, 2008 U.S. App. Lexis 3477 (5th Cir.).

     Police official who was not shown to have played any role at all in drafting, obtaining, or executing an arrest warrant for kidnapping could not be held vicariously liable for alleged violations of the arrestees' rights merely on the basis of having assigned a police detective to the case. There was also no evidence that the alleged violations of the arrestees' rights occurred because of any direction that the defendant had provided, or that he consented to or even had knowledge of those actions. Wilkinson v. City of Vicksburg, Civil Action No. 5:05-CV-94, 2008 U.S. Dist. Lexis 9357 (S.D. Miss.).

     An arrestee who claimed in his lawsuit that he had been falsely arrestee under a warrant that had been dismissed could not pursue his claim when he failed to give the date of the purported arrest, or the date he had been arraigned, since, without that information, it could not be determined whether his lawsuit was timely. Further, the plaintiff failed to name particular defendants responsible for his alleged arrest, and improperly sought to assert claims for federal civil rights liability against the county on the basis of vicarious liability. Porto v. Camden County Freedholders, No. 07-5359, 2007 U.S. Dist. Lexis 90855 (D.N.J.).

Family Relationships

     Neither mother nor father of decedent who was shot and killed by police had standing to pursue federal civil rights or state law wrongful death claims arising out of the death when no one had been appointed as the representative of the decedent's estate. The lawsuit was therefore dismissed. Farrow v. Sammis, No. 3:07CV00097, 2007 U.S. Dist. Lexis 90429 (E.D. Ark.).

Firearms Related: Intentional Use

     Police officers had probable cause to believe that a man posed a threat of serious physical harm to them when he twice pointed a shotgun at them after they chased him following his shooting of two people. They were therefore entitled to qualified immunity for shooting and killing him. The court also rejected the plaintiff's claim that additional discovery should be permitted to determine if any of the police vehicles present at the scene of the incident had video cameras, since prior discovery had already indicated that this was not the case. Ingle v. Yelton, No. 07-1315, 2008 U.S. App. Lexis 3184 (4th Cir.).

     Police officers who allegedly fired on an unarmed man in the backyard of his own home, resulting in him being wounded in the chest, were not entitled to summary judgment. The shooting was allegedly carried out without cause and without warning. The court rejects one officer's claim that the fact that he missed the plaintiff when he fired entitled him to qualified immunity, and an argument by a second officer that he acted on the reasonable, but mistaken belief that the man had shot the other defendant officer. Floyd v. City of Detroit, No. 06-2441, 2008 U.S. App. Lexis 4804 (6th Cir.).

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

     Police officer acted reasonably in shooting a man driving a stolen car who refused to obey orders to pull over, but instead drove away at high speed, and who subsequently drove recklessly, collided with another motorist's car, causing an accident that resulted in the hospitalization of the other driver. The fact that the fleeing motorist was not "armed" did not mean it was not objectively reasonable for the officer to use deadly force, as his driving posed a risk of death or serious bodily harm to others. Hill v. Nigro, No. 07-3871, 2008 U.S. App. Lexis 4407 (3rd Cir.).

     Mere threat to shoot suspect, even if it was "unprofessional," did not constitute a violation of the suspect's constitutional rights. Williams v. Milwaukee Police Department, No. 06-C-1124, 2007 U.S. Dist. Lex 55122 (E.D. Wis.). In a subsequent decision on other issues in the same case, the court held that a partner of an officer accused of misconduct in the case was properly dismissed from lawsuit, since no allegation was made that he was personally involved in the misconduct. . Federal civil rights law does not support the imposition of vicarious or collective liability for alleged misconduct. Williams v. Miscichoski, No. 06-C-1124, 2007 U.S. Dist. Lexis 94831 (E.D. Wis.).

Interrogation

     If, as the plaintiff claimed, the defendants "engineered" a false murder case against him, subjected him to an in-custody interview without Miranda warnings, and coerced a co-defendant into making a "confession" through the use of intimidation and threats, as well as withholding evidence of a later recanting of that "confession," the plaintiff asserted a viable claim for violation of his constitutional rights. The alleged misconduct had resulted in his detention for five months on capital murder charges. Claims for both qualified immunity and Eleventh Amendment immunity were rejected by the court. Sampson v. Lambert, No. 8:07CV155, 2008 U.S. Dist. Lexis 8838 (D. Neb.).

Malicious Prosecution

     The fact that a retest of evidence in a DUI case a year later showed a lower blood alcohol level did not negate the fact that officers and a prosecutor had a basis to prosecute the arrestee for intoxicated driving on the basis of blood samples and the tests results at the time of the arrest. Blood alcohol levels for such tests often decrease over time when samples are stored and retested, so that the variance in test results was most probably based on a "normal decrease" given the passage of time. Qualified immunity was granted to the defendants, including crime lab officials and employees. Kjellsen v. Mills, No. 07-11918, 2008 U.S. App. Lexis 3645 (11th Cir.).

Police Plaintiff: Firefighters Rule

     Deputy's lawsuit against homeowner and building contractor, seeking damages for injuries he suffered when a wooden deck collapsed while he was on the premises investigating a burglary was barred by the Fireman's Rule, which applied both to the owner of the premises, and to the contractor who had done work there. The deputy was trained, the court commented, to encounter hazards whether caused by a homeowner or someone else, and his injuries would be better compensated through workers' compensation rather than through a lawsuit for damages. Torchik v. Boyce, No. 06CA2921, 2008 Ohio App. Lexis 354 (4th Dist.).

Police Plaintiff: Vehicle Related

     In a lawsuit filed by a police officer injured while riding in the back of an ambulance transporting an arrestee to the hospital, his injury claim was subject to a state statute known as the Medical Injury Compensation Reform Act (MICRA), and a court ruled that negligence in operating an ambulance qualifies as professional negligence since emergency medical technicians are health care providers. The application of the statute, according to the court, allows "prejudicial evidence of collateral payments," such as payment of medical expenses by health insurance, workers' compensation, or disability insurance, to be admitted before the jury. The jury in this case found the ambulance company not negligent in an accident causing the officer's injury. The case also involved issues surrounding the fact that the officer did not wear a seat belt while riding in the ambulance, and when the ambulance hit a curb. Canister v. Emergency Ambulance Service, No. B190318, 2008 Cal. App. Lexis 254 (2nd Dist.).

Privacy

     A motorist who was given a speeding ticket complained that she was subjected to "identity theft" after the local county clerk published the ticket, containing personal information, including her Social Security number, on the clerk's website. A federal appeals court found that any alleged privacy interest did not involve a fundamental right and was not sufficient to establish a violation of her 14th Amendment due process rights from the publication. Lambert v. Hartman, No. 07-3154, 2008 U.S. App. Lexis 4019 (6th Cir.).

Public Protection: Disturbed/Suicidal Persons

     Officers did not violate a man's Fourth Amendment rights in handcuffing a man, searching his van, luggage, and apartment, and taking him to a hospital, where he voluntarily was hospitalized for treatment, after they received information from a hot line operator stating that the man had stated that he was suicidal, possessed weapons at his residence, and that he "could understand" why people would shoot others at work. The officers spoke to a co-worker to determine that the threats should be taken seriously, and there were exigent circumstances justifying the warrantless actions taken to both determine the scope of the threat and to defuse it. Under these circumstances, seizing the man's weapons was justified, and the continued retention of the weapons by police was not a due process violation when the man subsequently failed to follow available state law procedures to get his property returned. Mora v. City of Gaithersburg, No. 06-2158, 2008 U.S. App. Lexis 4561 (4th Cir.).

     Police officer did not act unreasonably in detaining a man and taking him to a state hospital for mental evaluation after he pointed a finger in the officer's face during a conversation about his claim that government officials had been harassing him. At the hospital, he was diagnosed with "psychotic disorder--not otherwise specified." His statements indicated that he would follow police and try to "get to the bottom" of the purported attacks on him showed that there was a substantial risk that he would engage in dangerous and irrational behavior and that he was mentally ill. Nothing that the officer did was "shocking" to the conscience or violated his rights. He also did not produce any evidence that the officer gave false information about him to hospital personnel. Simon v. Cook, No. 06-6514, 2008 U.S. App. Lexis 2381 (6th Cir.).

Racial/National Origin Discrimination

     Police officers followed a suspect's vehicle on the basis of reasonable suspicion that he was engaged in drug activity, and observed him commit what they reasonably believed were multiple traffic offenses. They also did not issue the arrestee a traffic summons until after his vehicle had collided with an unmarked police vehicle. In light of that, the plaintiff failed to show that the officers, as he claimed, caused the accident, filed a false report for the purpose of violating his constitutional rights, or engaged in traffic stops based on race. The officers were entitled to qualified immunity. The court also rejected claims against an auto dealer asserting that it lent the police department vehicles knowing that the officers would carry out traffic stops on the basis of race. Martin v. Lakewood Police Dept., No. 07-4542, 2008 U.S. App. Lexis 3786 (3rd Cir.).

Search and Seizure: Home/Business

     When an arrestee's parents gave deputies permission to enter their home and remove him, their warrantless entry did not violate the Fourth Amendment. A jury returned an award for the deputies on the arrestee's excessive force claim. Zamora v. Smith, No. 05-15622, 2008 U.S. App. Lexis 3973 (9th Cir.).

     Law enforcement agents did not have a warrant, consent, or exigent circumstances justifying their entry into a home after a prearranged delivery of a box they suspected contained narcotics. There was no evidence that the contents of the package were in danger of being disposed of, nor was there any threat to the officers. The owner of the home was entitled to partial summary judgment on his claims of unlawful entry by the defendants, who were denied qualified immunity. Demayo v. Nugent, No. 07-1623, 2008 U.S. App. Lexis 3759 (1st Cir.).

     A deputy sheriff's obtainment of consent to search a farm by threatening to detain a couple, the owners, while a warrant was sought for the search violated the Fourth Amendment, particularly since there was a "unique" coercive factor in that the deputy sheriff had also served as the attorney for the suspects. The deputy sheriff, however, was entitled to qualified immunity, as the illegality of this "unique" circumstance was not clearly established. The defendant was a reserve-force deputy as well as a lawyer, and had drafted the suspect couple's will twenty-eight months before. He subsequently participated in a search of their farm, during an investigation of marijuana allegedly being grown on their farm. Eidson v. Owens, No. 07-7007, 2008 U.S. App. Lexis 3149 (10th Cir.).

     Officers were not entitled to qualified immunity on claims that they unlawfully entered a woman's home without consent or exigent circumstances while responding to a domestic disturbance call. At the time of their entry, the domestic dispute had allegedly been "neutralized" and there were no facts that would have caused the officers to believe that any one was in danger inside the home. The court also found that there was evidence from which a jury could find that an officer used excessive force in arresting the woman, causing her injuries at a time when she had not committed a crime and did not pose a threat to anyone. Campbell v. Clay, No. 07-13040, 2008 U.S. App. Lexis 2928 (11th Cir.).

Search and Seizure: Search Warrant

     A search warrant presented to the occupant of a building was not invalid simply because the copy shown to him lacked the signature of the issuing judge. The court found that the original of the warrant was properly signed and issued, and was supported by probable cause. The court also found that it was legitimate for officers to detain the building occupant while conducting their search, which was occasioned by his employment of a suspect, even though the search did not involve a quest to find contraband. The court also rejected the occupant's argument that excessive force, which injured his wrists, was used in handcuffing him and detaining him in a squad car during the search. Housley v. City of Edina, No. 07-1330, 2008 U.S. App. Lexis 3799 (8th Cir.).

Wiretapping, Video Surveillance, & Internet Legal Issues

     Thirty-four middle school students claimed that their privacy rights were violated by the installation and operation of video surveillance cameras in athletic locker rooms at the school, which resulted in them being videotaped while dressing and undressing. A federal appeals court ruled that these actions violated the Fourth Amendment protection against unreasonable search and seizures, particularly their fundamental constitutional right not to expose their bodies to strangers of the opposite sex without it being reasonably necessary for some legitimate and "overriding" purpose. The court further found that the record did not show any concern for safety and security that would make the intrusion involved reasonable. The principal and assistant principal were not entitled to qualified immunity, but school officials not involved in authorizing the videotaping, and who were not aware of it, were granted such immunity. Brannum v. Overton County School Board, No. 06-5931, 2008 U.S. App. Lexis 3496 (6th Cir.).

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     Crime Victims: The Office for Victims of Crime has released the 2008 Resource Guide for National Crime Victims' Rights Week, April 13-19, 2008. Developed to help communities promote awareness of victim services, the online guide includes camera-ready art files, public awareness posters, the 2008 theme DVD and screensaver, and more. The 2008 theme is "Justice for Victims, Justice for All." (NCJ 220102).

     Drug Abuse Prevention: 2008 National Drug Control Strategy, March 1, 2008. The U.S. government's current national drug control strategy, focusing on, among other things, calls for tighter controls on Internet sales of controlled substances.

     Publications: The Community Policing Dispatch is a monthly electronic newsletter intended to educate readers about criminal justice issues affecting the implementation of community policing. Published by the Office of Community Oriented Policing Services. The March 2008 issue features articles about the use of force, the rising trend of unsolved homicides, and homeland security training opportunities. January and February 2008 issues of the publication are also currently available on-line.

     Statistics: Campus Law Enforcement, 2004-05. Presents findings from a BJS survey of campus law enforcement agencies serving 4-year colleges and universities with 2,500 or more students. The survey covered the 2004-05 academic year and collected data from agencies using sworn police officers and those using only non-sworn security officers. The report compares law enforcement agencies serving public and private campuses by number and type of employees, screening methods used for hiring officers, training and education requirements for officers, agency functions, types of equipment, computers and information systems, special programs, and written policy directives. General campus characteristics, including crime statistics, are also summarized. Appendix tables include data from 2-year public colleges with an enrollment of 10,000 or more. Highlights include the following: Three-quarters of campus law enforcement agencies used sworn officers with full arrest powers. Nearly all campuses had 24-hour patrol, a 3-digit emergency number, and emergency blue-light phones. Among schools with 5,000 or more students, private campuses had more law enforcement employees per capita than public campuses. 02/08 NCJ 219374  Acrobat file (192K) | ASCII file (33K) | Spreadsheets (zip format 33K)

     Statistics: State Court Processing of Domestic Violence Cases. Examines the processing of domestic violence (DV) and non-domestic violence (non-DV) cases filed in May 2002 in 15 large urban counties. The study compares the domestic and non-domestic offenses of sexual and aggravated assault on 11 prosecution, conviction, and sentencing outcome measures. Data are also presented regarding court issued protection orders, guilty plea versus trial convictions, and the demographic characteristics of domestic violence defendants. Highlights include the following: A third of violent felony defendants were charged with domestic violence. Prosecuted domestic sexual assault defendants had a higher overall conviction rate (98%) than prosecuted non-domestic sexual assault defendants (87%). Domestic aggravated assault defendants (54%) were less likely to be granted pretrial release than non-domestic aggravated assault defendants (62%). 02/08 NCJ 214993 Press release | Acrobat file (221K) | ASCII file (24K) | Spreadsheets (zip format 11K)

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