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Assault and Battery: Handcuffs

     Police officers did not use excessive force against woman detained on suspicion of shoplifting or in allegedly pushing her into a wall. She was only handcuffed for five minutes, the court noted, and any marks on her wrists from the handcuffs vanished within a day. Further, the push against the wall did not leave any mark or wound. Segura v. Jones, No. 07-1013, 2007 U.S. App. Lexis 29231 (10th Cir.).

     Police did not act in an objectively unreasonable manner by handcuffing a 78-year-old motorist with his arms behind his back, despite his claim that it was painful for him to place his arms there. The motorist had rear-ended an officer-s vehicle stopped at an intersection.a vehicle stopped at an intersection. The officers took the extra precaution of handcuffing him in this manner because of the plaintiff's intoxication and resulting unpredictability, and forced his arm behind his back only after he twice refused to obey a command to put it there. Marvin v. City of Taylor, No. 06-2008, 2007 U.S. App. Lexis 27950 (6th Cir.).

Assault and Battery: Physical

     An arrestee himself escalated the possible safety threat to a state trooper who stopped his vehicle by refusing to comply with the trooper's orders, fighting with him, and actively resisting arrest when he was told to exit his truck after the trooper saw drug-related items in the vehicle. Under these circumstances, even if the trooper kneed him in the back, there was no excessive use of force under the circumstances. McNeil v. Anderson, No. 07-6132, 2007 U.S. App. Lexis 28464 (10th Cir.).

Assault and Battery: Tasers and Stun Guns

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

     A federal appeals court overturned a trial court's summary judgment for police officers, their police chief, and the city that employed them in a lawsuit brought by an arrestee who was subjected to an arm-lock, a tackling, a Tasering, and a beating after he allegedly committed a misdemeanor in the officers' presence. The incident occurred when the plaintiff, after unsuccessfully attempting to defend himself against a traffic ticket, took the court file with him while walking to a courthouse parking lot to get money from his vehicle to pay his fine. The officers used force against him while he was on his way back to the courthouse. The appeals court found that the force used was not reasonable, given that the plaintiff was only suspected of "innocuously" engaging in conduct constituting a nonviolent misdemeanor, and did not resist arrest or attempt to flee. Under these circumstances, the court stated, a reasonable officer would not have taken these alleged actions.  Casey v. City of Federal Heights, No. 06-1426, 2007 U.S. App. Lexis 28537 (10th Cir.).

Defenses: Indemnification

     A jury in a federal civil rights lawsuit found that an officer used excessive force against an arrestee and committed assault and battery under state law by striking the plaintiff in the face three times while other officers detained him. In state court, claims for indemnification under Pennsylvania state law were rejected on the basis that officer had been found, by the jury, to have engaged in willful misconduct. The officer did not use the force employed for the purpose of effecting the arrest or maintaining the detention of the arrestee, but rather because he perceived the arrestee to be a "smart aleck," which fell outside of the scope of conduct for which indemnification was provided. Keenan v. City of Philadelphia, No. 2186 C.D. 2006, 2007 Pa. Commw. Lexis 625.

Defenses: Statute of Limitations

     All claims in an arrestee's lawsuit asserting that his rights had been violated by officers involved in his arrest, prosecution, and conviction between May 2003 and February 2004 were barred by an applicable two-year statute of limitations. Rodriguez v. Pennsylvania, No. 07-4295, 2007 U.S. App. Lexis 29252 (3rd Cir.).

     A lawsuit filed approximately five years after events giving rise to an arrestee's federal civil rights claims was barred by an applicable Georgia two-year statute of limitations. Additionally, the trial judge did not abuse his discretion, under the circumstances, in finding that the lawsuit was frivolous because it was time-barred. Simon v. City of Atlanta, Ga., No. 06-16269, 2007 U.S. App. Lexis 28967 (11th Cir.).

Emotional Distress

     Police officers' alleged actions in conducting a "campaign of harassment" by running a drug and prostitution ring out of the plaintiff's bottle club, and refusing to investigate illegal activities on the premises, as well as attempting to make the plaintiff and his employees stay silent about what was occurring, if true, were sufficiently extreme and outrageous to support claims, under Florida state law, for intentional infliction of emotional distress. Additionally, the club owner could have believed that he would be arrested if he did not cooperate with the officers' demands. Gallogly v. Rodriguez, No. 2D06-5118, 2007 Fla. App. Lexis 19701 (Fla. App. 2nd Dist.).

False Arrest/Imprisonment: No Warrant

     Arresting officer was entitled to summary judgment in false arrest lawsuit brought by motorist who pulled his vehicle over to the side of the road, allegedly for the purposes of switching drivers, and then was arrested for DUI when he failed a field sobriety test. While the motorist was ultimately acquitted of all charges, the appeals court found that a reasonable officer would have had probable cause, under the circumstances, to make an arrest for obstructing a lane of traffic. Williams v. Rodriguez, No. 06-4126, 2007 U.S. App. Lexis 28201 (7th Cir.).

     Officer had probable cause to arrest a man for stalking based on emails back and forth between the arrestee and his alleged victim, his multiple phone messages to her on the same day, the victim's complaints about the phone calls and emails, and the arrestee's arrival at the victim's residence after she had allegedly told him that she had no interest in seeing him because he was a married man. The arrestee later pled no contest to disorderly behavior and criminal trespass. Further proceedings were ordered, however, as to the plaintiff's claims that his rights were violated by the seizure of his business computer and CD-ROMs. Blake v. County of Livingston, No. 06-1850, 2007 U.S. App. Lexis 29073 (6th Cir.).

     Federal appeals court rejects claim that fishermen were falsely arrested for trespass after refusing to leave waters on usually dry private property. The court did not accept the arrestees' argument that members of the public have a protected state and federal right to go fishing on such property at times when it is flooded by the Mississippi River. Parm v. Shumate, No. 06-31045 2007 U.S. App. Lexis 29948 (5th Cir.).

     In a case in which a police officer allegedly made a warrantless in-home arrest of a woman for exposing herself, the officer had probable cause to make an arrest, and was therefore entitled to qualified immunity on a false arrest claim. Assuming, for the purposes of appeal, that the arrestee had not voluntarily exposed herself to public view, the court found that there were no exigent circumstances justifying an in-home warrantless arrest, so that the officer was not entitled to qualified immunity on the claim that the in-home arrest was improper. Goodwin v. City of San Bernardino, No. 05-56101, 2007 U.S. App. Lexis 28040 (9th Cir.).

     Police officers who arrested tenant on the basis of signed complaints from landlords had probable cause for the arrest, and were properly granted qualified immunity. Prosecutors in the case were entitled to absolute prosecutorial immunity, and landlords, who were private persons, did not act under color of state law, so they could not be defendants in a federal civil rights lawsuit. Fielding v. Tollaksen, No. 06-5393, 2007 U.S. App. Lexis 28939 (2nd Cir.).

     Police detective had probable cause to arrest a man for alleged abduction of his child based on the mother's statement that the child was not returned to her at a designated time following visitation, in violation of a court order. The detective had obtained some corroboration of the mother's accusation by determining that the arrestee had not taken the child to school that morning. The incident actually took place because of "poor communication" between the mother and father, and the arrestee was not prosecuted. Munday v. Johnson, No. 07-3088, 2007 U.S. App. Lexis 28233 (10th Cir.).

     Six Muslim Imams sued an airline and an airport commission for alleged violations of their federal civil rights in having airport commission police remove them from an airplane after boarding, and arresting them and questioning them for several hours, after three of them had allegedly prayed together at the gate prior to boarding. Their lawsuit also claimed that the airline refused to rebook them after clearing them of any wrongful actions. A federal trial court found that the plaintiffs adequately asserted Fourth Amendment and equal protection claims, based on an alleged lack of probable cause and alleged motivations of race and religion for their arrest. The court rejected, however, a state law false arrest claim against the airport commission, while finding that such a claim was possible against the airline. The court further found that a viable claim was stated for intentional, but not negligent, infliction of emotional distress against the airline under Minnesota state law. The court rejected a claim by one of the Imams, who is blind, for disability discrimination, ruling that the Air Carrier Access Act, 49 U.S.C. Sec. 41705, does not provide for private lawsuits for such discrimination. Shqeirat v. U.S. Airways Group, Inc., No. Civ. 07-1513, 2007 U.S. Dist. Lexis 85881 (D. Minn. 2007).

False Arrest/Imprisonment: Wrongful Detention

     Police officer was not entitled to qualified immunity on a claim that he improperly continued to detain two Hispanic family members at a store after determining that they had a receipt for the merchandise he suspected them of stealing. He allegedly forced them to continue to wait at the store until the border patrol arrived on the basis of nothing other than the fact that they were Hispanics, and should have known, at that time, that he lacked a basis to continue their detention. Flores v. J.C. Penney Corp., No. 06-55570, 2007 U.S. App. Lexis 28039 (9th Cir.).

Firearms Related: Intentional Use

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

     A federal appeals court held that a police SWAT team sniper acted in an objectively reasonable manner in shooting and killing an armed suspect, and that neither the officer nor the city was liable for the death. The officer, according to the court, heard the suspect threaten to shoot police, saw him carrying a rifle, and had knowledge that he had previously shot at a car full of people, wounding two of them. Additionally, fellow officers had radioed that the suspect was shooting at them and yelling threats. Under these circumstances, the officer reasonably believed that the suspect posed an immediate danger, justifying the use of deadly force. The court further ruled that a decision that was made to wait for a light armored vehicle for safety reasons before entering the property where the suspect was did not constitute deliberate indifference, even accepting the argument that the delay may have contributed to the decedent's death. Long v. City and County of Honolulu, No. 05-16567, 2007 U.S. App. Lexis 29530 (9th Cir. 2007).

     Officer did not use excessive force in shooting a motorist who fled on foot after a vehicle pursuit, and was running in a residential area holding a screwdriver in the direction of some of the officers a few feet away. Under these circumstances, the use of deadly force was objectively reasonable. Nicarry v. Cannaday, No. 07-11679, 2007 U.S. App. Lexis 29707 (11th Cir.).

     Deputy did not act unreasonably in shooting and killing a man who had refused to submit to a pat down and then disarmed the deputy of his baton. At the time he was shot, the suspect was holding the baton while the deputy lay prone. A federal appeals court upheld a jury's verdict in favor of the deputy. Lewis v. County of Riverside, No. 06-55764, 2007 U.S. App. Lexis 29148 (9th Cir.).

     A disputed issue of fact as to whether a suspect was unarmed and surrendering to officers with his hands up or appeared to be concealing a weapon when he was shot and killed by a detective barred summary judgment in an excessive force lawsuit. White v. Gerardot, No. 07-1418, 2007 U.S. App. Lexis 28009 (7th Cir.).

     Police officer was entitled to qualified immunity in lawsuit over his shooting and killing of a motorist he had stopped because the car matched the description of a stolen vehicle. The motorist refused to comply with orders to keep his hands up, and drove off, which dragged the officer along since his hands were inside the car. Under these circumstances, the force used was objectively reasonable. Owens v. City of Austin, No. 06-50763, 2007 U.S. App. Lexis 28646 (5th Cir.).

First Amendment

     A police officer who allegedly arrested the plaintiff for criticizing him for writing tickets, rather than for illegal parking, was not entitled to qualified immunity in a lawsuit over alleged violation of First Amendment rights. The officer was writing parking tickets, and wrote one for the plaintiff, who tried to explain he was only parking on the sidewalk temporarily in front of his apartment building to unload, and that he was handicapped, with a handicap parking permit. When the plaintiff stepped into the building and warned his employees working at the apartment building that they should move their vehicles because the officer was writing tickets, the officer allegedly stated that he was "tired" of the plaintiff's "mouth," so that the plaintiff was going to jail, grabbing him by the arm and attempting to pull him out of the building. Other officers arrived on the scene and told the officer to leave the plaintiff alone. Making an arrest that was based entirely on an arrestee's speech opposing or questioning police actions violates the First Amendment. Lowe v. Spears, No. 07-1497, 2007 U.S. App. Lexis 29488 (4th Cir.).

     California Supreme Court holds that union protesters have a free speech right, under state law, to engage in protests on private property in shopping malls to urge boycotts of a store located there. The mall owners had summoned a police officer to tell protesters that they were engaged in trespassing while distributing boycott leaflets in the mall. Fashion Valley Mall, LLC v. NLRB, (2007).

     Provisions of city's mass outdoor gathering ordinance requiring a 30 day advance notice for the issuance of a parade permit were unconstitutional, but federal appeals court rejects the argument that an "indigency" exception to a parade permit fee was required under the First Amendment. The availability of parks and sidewalks for demonstrating without a permit was an acceptable alternative for demonstrators who could not afford the permit fee and other charges for police traffic control, the court stated, agreeing with the approach taken by another federal appeals court in Stonewall Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir. 1991). Sullivan v. City of Augusta, No. 06-1177, 2007 U.S. App. Lexis 29181 (1st Cir.).

     Police officer had probable cause to arrest man for passing out handbills containing advertisements for businesses as well as statements in favor of the legalization of marijuana. While the arrestee had a clear First Amendment right to advocate legalization of marijuana, this did not give him any right to violate an anti-littering ordinance while doing so, and many of his handbills were lying in the street. Lorenzo v. City of Tampa, No. 07-13420, 2007 U.S. App. Lexis 29381 (11th Cir.).

Governmental Liability: Policy/Custom

     A company owner, shortly after an indictment against him was dismissed, sued, claiming that a police chief and an officer conspired to present false testimony before a grand jury. In a federal civil rights lawsuit, he contended that the city was liable for this because the chief, in allegedly perjuring himself, acted as a policymaker for the city. The federal trial court found, however, that if the police chief did this, it constituted an isolated incident and a criminal act outside the scope of the chief's policymaking authority, for which the city could not be held liable. Summary judgment was therefore granted to the city and police department, but not to the police chief. Miller v. City of East Orange, No. 05-2023, 2007 U.S. Dist. Lexis 68844 (D.N.J.).

Malicious Prosecution

     Dismissal of criminal charges against an arrestee was a favorable termination of the proceedings in his favor for purposes of his malicious prosecution claims against the county when the dismissal was based on a failure to prosecute and an imminent violation of the right to a speedy trial. Rivas v. Suffolk County, No. 04-4813, 2008 U.S. App. Lexis 72 (2nd Cir.).

     The question of whether there was probable cause of prosecute an arrestee for resisting arrest depended on whether the arrestee or an officer was telling the truth about whether the arrestee pushed an officer, which should be decided by a jury in his malicious prosecution lawsuit. Holmes v. Village of Hoffman Estates, No. 06-2759, 2007 U.S. App. Lexis 29699 (7th Cir.).

Negligence: Vehicle Related

     City was not liable for injuries suffered by motorist and his passenger, whose vehicle was struck by a municipal ambulance responding to an emergency call, in the absence of any evidence that the ambulance driver engaged in willful and wanton conduct. An alleged failure to stop before entering an intersection was, at most, negligence. Williams v. The City of Evanston, No. 1063392, 2007 Ill. App. Lexis 1369 (1st Dist.).

Property

     The New York City Police Department was ruled to have violated the property rights of an auto finance company without due process of law by proceeding with a forfeiture proceeding concerning a vehicle seized for suspected use in criminal activity without providing the finance company with notice and an opportunity to be heard in the proceeding. The auto finance company allegedly had a valid security interest in the vehicle. Additionally, a delay by the city in going forward with the forfeiture proceeding deprived the plaintiff of property, since the value of the vehicle decreases over time. Ford Motor Credit Co. v. NYC Police Dept., No. 06-4600, 2007 U.S. App. Lexis 22607 (2nd Cir.).

Public Protection: Ill Persons

     Sheriff's deputies had no legal duty under Florida law to "act with care' while performing a well-being check at a woman's residence in response to a 911 call. When they came to her home, they found her breathing but unresponsive on a couch in her home, but did not summon medical aid, instead telling a neighbor to leave the woman's door unlocked and check on her later. The neighbor found the woman still unresponsive the next day, and called emergency medical personnel, who took the woman to the hospital, where she died without again becoming conscious. The court found that the deputies did not engage in any actions that increased or changed the risk to the woman, other than the risk that already existed. They also never assumed control over the premises or engaged in actions causing the neighbor or anyone else to rely on them. Wallace v. Dean, No. 5D06-4289, 2007 Fla. App. Lexis 18806 (Fla. App. 5th Dist.).

Pursuits: Law Enforcement

     City was not liable for personal injuries suffered by motorist when his vehicle was struck by another car that was being pursued by police, since there was no evidence that officers acted in a willful and wanton manner. The officers pursued the vehicle after finding that the license plates on it belonged to another car. The appeals court found that it was undisputed that traffic was light, the roads were dry, and the weather was clear at the time. The mere fact that the police vehicle was proceeding at a high speed was insufficient to show willful and wanton conduct. Shuttlesworth v. The City of Chicago, No. 1063433 2007 Ill. App. Lexis 1160 (1st Dist).

Search and Seizure: Vehicle

     City and towing company did not violate the rights of a motorist by placing a "boot" on her car, and having it towed and impounded from its location in a condominium building's parking area after the motorist failed to pay certain parking tickets. The vehicle owner had no reasonable expectation of privacy in the parking area because it was shared in common with other occupants of the building. The seizure of the vehicle under the circumstances was authorized by an Illinois state statute, and the plaintiff did not claim that the established procedures for such seizures were violated. Police officers had probable cause to believe that the car was subject to impounding, and the applicable law did not require a warrant to boot and tow the vehicle. Kosyla v. City of Des Plaines, No. 06-2032, 2007 U.S. App. Lexis 28034 (7th Cir.).

     Sheriff's deputies believed that a parked car was "suspicious" because some boxes and a 5-gallon can could be seen within it. The vehicle was observed within days of some "controversial" international meetings being held in Miami, Florida at which political demonstrations were anticipated, the Free Trade Area of the Americas ("FTAA") ministerial hearings, in November 2003. Upon being informed of the vehicle by the deputies, the officer in charge of the city's bomb squad arrived on the scene and "rendered it safe" by destroying it. The officer, based on the circumstances, was entitled to qualified immunity and had at least "arguable" probable cause to take the actions he carried out. Claims against the city will proceed. Vogel v. City of Miami, No. 07-20436, 2007 U.S. Dist. Lexis 85438 (S.D. Fla.).

Terrorism, Homeland Security, and National Security Issues

     Several U.S. domestic organizations claimed that they wished to provide support to "nonviolent and lawful" activities of foreign organizations designated as terrorist organizations by the U.S. government, and challenged the constitutionality of portions of the USA Patriot Act providing such support. The foreign organizations in question in the case are the Kurdistan Workers Party, aka Partiya Karkeran Kurdistan ("PKK"), and the Liberation Tigers of Tamil Eelam ("LTTE"). A federal appeals court found that provisions of the statute criminalizing the providing of training, expert advice or assistance to terrorist organizations was unconstitutionally vague and improperly chilled protected expressive activities, as well as providing criminal penalties without adequately defining what conduct was prohibited. These provisions could arguably be applied to protected free speech activities, the court stated. The court rejected, however, the plaintiffs' argument that similar prohibitions on providing "personnel" to such terrorist organizations was also vague, since there is a difference between constitutionally protected expression and unprotected actions or conduct. The court also upheld the criminalization of facilitating terrorist activities through supplying expertise in constructing explosive devices, supplying weapons, or providing money for terrorist activities. Humanitarian Law Project v. Mukasey, No. 05-56753, 2007 U.S. App. Lexis 28470 (9th Cir.).

     Article: "Documenting the Use of Force," by Todd Coleman, 76 FBI Law Enforcement Bulletin, No. 11, pgs 18-23 (Nov. 2007). "Officers must properly document incidents involving the use of force." [PDF]

     Article: "Supreme Court Cases: 2006-2007 Term," by the FBI Academy Legal Instruction Unit, 76 FBI Law Enforcement Bulletin, No. 11, pgs 25-32 (Nov. 2007). "Five Supreme Court decisions of particular importance to law enforcement are summarized." [PDF]

     Article: Vehicle Pursuits and the Fourth Amendment, by Carl A. Benoit, 76 FBI Law Enforcement Bulletin, No. 10, pgs 23-32 (Oct. 2007). "The Fourth Amendment provides guidance for police chases that result in a seizure." [PDF]

     Statistics: Crime in the United States. Preliminary Semiannual Uniform Crime Report, covering the first half of 2007. FBI. January 7, 2008. Preliminary figures indicate that, as a whole, law enforcement agencies throughout the nation reported a decrease of 1.8 percent in the number of violent crimes brought to their attention in the first half of 2007 when compared with figures reported for the first six months of 2006. The violent crime category includes murder, forcible rape, robbery, and aggravated assault. The number of property crimes in the United States from January to June of 2007 decreased 2.6 percent when compared with data from the same time period in 2006. Property crimes include burglary, larceny-theft, and motor vehicle theft. Arson is also a property crime, but data for arson are not included in property crime totals. Figures for 2007 indicate that arson decreased 9.7 percent in the first half of the year when compared to 2006 figures for the same time period.

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

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