---

 Search the Case Law Digest

CONTENTS

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Lexis citation can be retrieved, for a fee, at: http://web.lexis.com/xchange/forms/uas/catalog.asp
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.  

Assault and Battery: Physical

     When man arrested for driving under the influence of alcohol was intoxicated and uncooperative and had indicated that he would resist having his blood drawn at a hospital, as authorized by law, officers did not use excessive force. He resisted and kicked one of the officers in the stomach, and it took four officers to subdue him. Court rejects claim that officers or town were liable for alleged injuries arrestee suffered while his arms were handcuffed behind his back. Laskey v. Legates, C.A. No. 06-18-JJF, 2007 U.S. Dist. Lexis 77586 (D. Del.).

     Sheriff's deputy was not entitled to discretionary immunity under Nevada state law when he allegedly struck an arrestee in the face breaking his nose while removing him from a crowd which officers were trying to push through early on New Year's Day. His decision did not involve policy considerations, and he was authorized, under a statute, to use no more restraint than necessary to make the arrest. The arrestee had raised his hands and knee in an effort to protect himself, and a police investigator claimed that he had tried to "knee" him. In this case, there was no evidence that the arrestee was fleeing or resisting arrest when he was struck. Castaneda v. Planeta, No. 03:05-CV-0283, 2007 U.S. Dist. Lexis 84328 (D. Nev.).

     Trial court did not make a mistake in excluding evidence that a plaintiff wanted to introduce concerning an officer's alleged motive for using excessive force against him in the course of his arrest. An officer's intent or motivation is irrelevant if the force used is objectively reasonable under the circumstances, so that proof of "evil" intentions would not have made an objectively reasonable use of force into a Fourth Amendment violation. Wilson v. Galyon, No. 07-6124, 2007 U.S. App. Lexis 22977 (10th Cir.).

Assault and Battery: Tasers/Stun Guns

     When a coroner's report indicated that a man had died as a result of excited delirium and the presence of cocaine in his system, and that the application of a Taser did not cause or contribute to the man's death, the manufacturer could not be held liable under Louisiana state law. The man was being transported in an ambulance from a bar after he became ill. He was stunned by police with the Taser once after he began waving a knife at paramedics and shaking it violently. Smith v. Louisiana State Police, Civil Action No. 07-1189, 2007 U.S. Dist. Lexis 73689 (E.D. La.).

     If the facts were as the plaintiff alleged, the decedent was knee deep in water, unarmed, surrounded by police, and had ceased trying to escape arrest when he was shocked with a Taser five times, struck with a baton multiple times, and pushed into a position that submerged his head in water, causing him to drown. Under those circumstances, officers were not entitled to qualified immunity on an excessive force claim. The officers should have known that striking the arrestee with a baton after he was no longer resisting violated clearly established constitutional rights. Prior case law indicating that the unwarranted use of pepper spray was excessive force was sufficient to put officers on notice that improper use of a Taser could be excessive force. Additionally, the officers should have known that it is almost always an excessive use of force to restrain an arrestee in a manner that places his head under water for a long period of time. Landis v. Cardoza, Civil No. 05-74013, 2007 U.S. Dist. Lexis 74838 (E.D. Mich.).

False Arrest/Imprisonment: No Warrant

     Officer had probable cause to arrest motorist for driving under the influence when he was unable to stand on one leg, and sat at a stop sign at 2:23 a.m. for 30 seconds. In the alternative, the officer was entitled to qualified immunity for making the arrest. Jolley v. Harvell, No. 06-5383, 2007 U.S. App. Lexis 26625 (6th Cir.).

     When the arrestee admitted to consuming eight beers that day, smelled of alcohol, failed a sobriety test, fell to the ground after getting out of his car, and was observed sitting in a car perched on top of a concrete parking divider with the engine running, the officer had probable cause to arrest him for drunk driving. Once probable cause was established, the officer had no obligation to continue to investigate to find exculpatory evidence. Biehl v. Salina Police Department, No. 07-3231, 2007 U.S. App. Lexis 27573 (10th Cir.).

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

     Federal appeals court upholds award of nominal damages and injunctive relief concerning the future training of officers in a case where officers ended a 12-hour standoff with an armed man in his apartment by tossing in gas canisters and then entering without a warrant to arrest him. Police had been called to the scene after the man had been found by a security guard drinking beer, unresponsive, and holding one of his guns in his apartment. During the 12-hour standoff, the suspect threatened to shoot a police tactical negotiator. The court found that the officers had ample time during the standoff to seek an arrest warrant, but never asked for one. Additionally, towards the end of the standoff, nothing occurred that increased the danger of the situation, since the suspect engaged in no further threatening actions. Fisher v. City of San Jose, No. 04-16095, 2007 U.S. App. Lexis 26796 (9th Cir.).

     Arrestee's lawsuit claiming that her custodial arrest for issuing a forged check was improper consisted to 30 pages of "rambling and incomprehensible" allegations written in phrases rather than sentences, and containing no punctuation. The failure to give any factual details at all to support her claims resulted in a failure to state any viable civil rights claims. Hagner v. State of Florida, Case No. 6:07-cv-917, 2007 U.S. Dist. Lexis 77032 (M.D. Fla.).

     Probable caused existed to arrest a man when he tried to physically move his ex-wife away from a car during an argument that occurred when he went to pick up his son. Spalsbury v. Sisson, No. 06-1193, 2007 U.S. App. Lexis 21838 (10th Cir.).

     Officers had probable cause to carry out a warrantless arrest of a woman for assaulting her daughter, based on the daughter's own statements, the physical evidence, and the history of violence in the family. Willette v. City of Waterville, Civil No. 06-101, 2007 U.S. Dist. Lexis 76968 (D. Maine).

False Arrest/Imprisonment: Warrant

     Court rejects man's claim that a police detective submitted false information to a court in an application seeking an arrest warrant for making derogatory statements involving banks and criminal impersonation in phone calls to a state agency. The facts showed that the man had access to the phone used in making the four calls in question, and that the arrest warrant was based on multiple identifications of the voice as belonging to the plaintiff, and phone records linking the plaintiff's business to the calls made. Tuccio v. Papstein, No. 3:05-CV-1407, 2007 U.S. Dist. Lexis 72567 (D. Conn.).

Firearms Related: Intentional Use

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

     Alabama deputy sheriff acted reasonably in shooting and killing a mentally unstable man who took possession of a marked sheriff's cruiser when he was informed that he was going to be arrested, and began backing away. The deputy who shot him warned that he would be shot if he did not stop his escape. The decedent could have used to car to injure or kill someone, especially since it cloaked him with the "apparent authority' of a police officer. Long v. Slaton, No. 06-14439, 2007 U.S. App. Lexis 26573 (11th Cir.).

     Three police officers who allegedly fired at a suspect while he was on the ground, already shot, were entitled to qualified immunity from liability. The facts showed that the first officer who shot the suspect before he fell to the ground was faced with a much larger man charging her with a dangerous weapon in his hand, and that the suspect refused to stop moving or show his hands, as he was ordered to do by the other officers after he fell. Under the circumstances, the officers did not act unreasonably. Berube v. Conley, No. 06-2644, 2007 U.S. App. Lexis 25418 (1st Cir.).

     In a prior lawsuit concerning the fatal shooting of a suspect by police, the shooting was found to be legally justified. The decedent's mother and estate then sued another officer, seeking to hold him liable for the death on the basis that he was the highest ranking officer present. The result in the prior lawsuit barred this claim. Easley v. Reuss, No. 06-1646, 2007 U.S. App. Lexis 22352 (7th Cir.).

     Deputies did not act unreasonably in shooting and killing a mentally disturbed man who posed a threat of serious physical harm. The man had placed a large sign in his front yard that said, "no police you be shot." The suspect came out of his mobile home holding something the officers believed to be a handgun and took a kneeling stance that was believed to be a shooting position, pointing it in the direction of an officer. The suspect responded to commands to drop the object by yelling, "Shoot me, Shoot me." The suspect was subsequently shot and killed as he was charging towards the officers. Summerland v. County of Livingston, No. 06-1975, 2007 U.S. App. Lexis 21045 (6th Cir.).

First Amendment

     It was objectively unreasonable for arresting officers to believe that a man was impersonating a member of the highway patrol with the intent to deceive when he was in a restaurant on Halloween wearing flamboyant pink underwear with written references to the county sheriff and public safety patches while campaigning for a ballot proposition in an upcoming election. He was not wearing a badge at the time, and it was obvious that he was only "lampooning" the sheriff and engaging in First-Amendment protected free speech. Arresting officers were therefore not entitled to qualified immunity for arresting him. Tarr v. Maricopa County, No. 05-16676, 2007 U.S. App. Lexis 27169 (9th Cir.).

     Federal appeals court overturns decision that plaintiff was not entitled to a preliminary injunction while her challenge to a Missouri statute criminalizing picketing in front of a funeral location or procession was considered. The appeals court found that the plaintiff had a "fair chance" of proving that her First Amendment right to spread the message that "God is punishing America" for the "sin of homosexuality" by killing Americans, including American soldiers, outweighs any governmental interest in protecting funeral mourners from exposure to an unwanted message. Phelps-Roper v. Nixon, No. 07-1295, 2007 U.S. App. Lexis 28196 (8th Cir.).

     Disputed facts concerning whether police officers were motivated by ordinary law enforcement concerns, or by a wish to censor the speech of a religious leaflet distributor based on his viewpoint barred summary judgment in a lawsuit over their arrest of the leaflet distributor for failing to obey their order to move from the middle of the sidewalk. Frantz v. Gress, No. 06-CV-3210, 2007 U.S. Dist. Lexis 81182 (E.D. Pa.).

     Statute enacted by village banning the sale of alcohol in new strip clubs was properly found to have been enacted to protect current club owners from competition, so that the ban was not "necessary" to serve a compelling state interest, and violated the First Amendment. Joelner v. Village of Washington Park, Illinois, No. 06-2901, 2007 U.S. App. Lexis 26693 (7th Cir.).

     Arrestee removed from "Palestinian Solidarity Conference" at university by school safety officers could pursue his federal civil rights claim on the basis of his allegation that the officers acted under provisions of the D.C. Code, and removed him in violation of First Amendment rights after he repeatedly asked a panel of speakers at the conference whether they approved of suicide bombings. Maniaci v. Georgetown University, No. 06-1625, 2007 U.S. Dist. Lexis 66236 (D.D.C.).

Governmental Liability: Training

     City was entitled to partial summary judgment in lawsuit by woman over officer's alleged improper sexual behavior towards her. The court rejected the plaintiff's argument that the city's failure to produce and use training materials specifically focused on improper sexual behavior was sufficient to establish a genuine issue as to whether inadequate training caused the officer's actions. The court noted that the city had numerous policies mandating ethical conduct, including towards arrestees. Teal v. City of Houston, Civil Action H-06-3726, 2007 U.S. Dist. Lexis 80675 (S.D. Tex.).

Interrogation

     Police officers had no obligation to give a "Miranda-like" warning to witnesses questioned at a police station in order to advise them that they were not under arrest and were free to leave. Officers asked the wife of a man being investigated for insurance fraud to come to the police station and questioned her for two and a half hours, but this did not constitute a "seizure" for Fourth Amendment purposes. The plaintiff never asked the officers whether she was under arrest, or whether she was free to leave. Under the circumstances, the inference arose that she had no wish to terminate the questioning. Hall v. Bates, No. 07-1043, 2007 U.S. App. Lexis 26478 (7th Cir.).

Malicious Prosecution

     Arrestee failed to show malicious prosecution when he was arrested under a warrant based on witness statements accusing him of involvement in a burglary, and he was prosecuted for a controlled substance on the basis of bags of a white powdery substance found in his jacket in an apartment. The fact that the substance subsequently tested negative for a controlled substance did not alter the result. Moore v. Carteret Police Dept., No. 07-2840, 2007 U.S. App. Lexis 26232 (3rd Dist.).

Negligence: Vehicle Related

     Death of volunteer fire fighter whose auto was hit by one driven by a county deputy, allegedly speeding while responding to an emergency call, did not violate due process. The plaintiffs claimed that the deputy had violated a county policy that barred him from driving at a speed more than 10 miles per hour over the speed limit while responding to such calls, and that the deputy therefore violated the fire fighter's due process rights by violating the policy. The court found that the post-deprivation opportunity to bring a state law lawsuit over the accident was adequate to satisfy the requirements of constitutional due process. Moore v. Board of County Commissioners, County of Leavenworth, Kansas, No. 07-3053, 2007 U.S. App. Lexis 26864 (10th Cir.).

Police Plaintiff: Assault and Battery

     County could not be held liable for injuries policeman suffered when he was assaulted while buying narcotics as part of a joint task force. The alleged failure of the defendants to warn him that a suspect had been released from jail, who then recognized him when he tried to buy drugs and assaulted him was not actionable in the absence of a special relationship with the officer sufficient to overcome the governmental immunity that otherwise barred the lawsuit. The relationship between the officer, the village and the county while participating in the task force was also similar to that of an employee to his employer. Rodriguez v. County of Rockland, No. 2006-00834, 2007 N.Y. App. Div. Lexis 9830 (A.D. 2nd Dept.).

Property

     Plaintiff could proceed with his claim that officers who seized a moped from his living room while executing a search warrant unconstitutionally deprived him of his property without due process of law, since it was not within the scope of the search warrant. The seizure of $142 from the plaintiff's pocket, however, fell within the scope of the warrant since it authorized the seizure of property constituting evidence of drug transactions, including currency. Cooper v. City of Fort Wayne, No. 1:06-CV-161, 2007 U.S. Dist. Lexis 81148 (N.D. Ind.).

Public Protection: Crime Victims

     Police officers and city were not liable for death of child transported to hospital in non-medically equipped emergency patrol wagon, rather than ambulance, after he was shot in a drive-by shooting. The city and officers had not created the danger to the child, and did not have a special relationship with the child creating a special duty to protect him from private acts of violence or to provide adequate first aid when such violence took place. The officers' conduct also did not shock the conscience. Sanders v. City of Philadelphia, No. 06-CV-359, 2007 U.S. Dist. Lexis 73846 (E.D. Pa.).

Public Protection: Disturbed/Suicidal Persons

     Officer did not violate the rights of a woman with bipolar disorder by handcuffing her arms behind her back and using leg irons to cuff her to a grate in a cell after taking her into custody for protective reasons because she indicated that she might engage in self mutilation. The officer's actions did not shock the conscience since she was only restrained after she threatened her own safety and had shown that having her hands cuffed behind her back was an inadequate form of restraint. The restraints were only applied until the woman could be taken to a medical facility. Norris v. Engles, 06-3394, 2007 U.S. App. Lexis 18838 (8th Cir.).

Search and Seizure: Home/Business

     City was properly held not liable, on the basis of two officers' warrantless entry into the plaintiffs' home through a closed but unlocked side door. The officers were looking for the daughter of one of the officers, who they thought might be at the home because she was dating the son of the woman who lived there. The city disciplined the officers and criminally prosecuted them, while refuting the allegation that it had a custom or policy that caused a constitutional violation by the officers. The officers were also acquitted in the state criminal proceeding because their conduct was found to fit within a state law emergency aid exception to the requirement of a warrant. McClendon v. City of Detroit, No. 05-2734, 2007 U.S. App. Lexis 27692 (6th Cir.).

     Search warrant used to search family residence for an armed robbery suspect who had already been taken into custody was not supported by probable cause. Elliot v. Lator, No. 06-2006, 2007 U.S. App. Lexis 18976 (6th Cir.).

     Homeowner's claim that officers violated her rights in searching her home was barred when a judgment in her favor would have necessarily implied the invalidity of her guilty plea to a charge of violating a municipal code ordinance, and the homeowner did not state that the conviction had been overturned. Ray v. Tsunoda, No. 05-56879, 2007 U.S. App. Lexis 20133 (9th Cir.).

Search and Seizure: Persons

      The U.S. government has "plenary authority" to control entry into the country through the border, and also had statutory authority to detain and search five U.S. citizens, practicing Muslims with no criminal records, when they were returning from a Canadian Islamic conference. Additionally, intelligence the government had received that persons with known terrorist ties would be attending the conference provided the government with a compelling interest in preventing potential terrorists from entering the county. The searches, which took place at the border were not intrusive enough to violate the Fourth Amendment, and also did not violate the plaintiffs' constitutional or statutory rights to religious freedom. Tabbaa v. Chertoff, No. 06-0119, 2007 U.S. App. Lexis 27258 (2nd Cir.).

     Officers acted reasonably when they approached a pedestrian leaning on a guardrail next to a highway who had a firearm nearby, drew their weapons, and ordered him to move away from his weapon and lay face down on the pavement, after which they frisked him and handcuffed him. The officers carried out this investigatory stop after receiving a call reporting that a man had been on the side of a road pointing a rifle at passing motorists. The officers let him go after questioning him and determining that he had not been engaged in any criminal activity. Campbell v. Stamper, No. 06-6198, 2007 U.S. App. Lexis 16516 (6th Cir.).

Search and Seizure: Vehicle Related

     An officer who conducted a search of the arrestee's vehicle while the arrestee was being taken to the police station was not entitled to qualified immunity on an unlawful vehicle search claim. A search, which occurred immediately after the arrestee was placed in the patrol car, was proper, and incident to arrest, but the later search was no longer incident to arrest. Brown v. Fisher, No. 06-3207, 2007 U.S. App. Lexis 24258 (10th Cir.).

•Return to the Contents menu.

     Publication: Commercial Sexual Exploitation of Children: What Do We Know and What Do We Do About It? NCJ 215733, December 2007, NIJ Report, by Jay Albanese Summary | PDF

     Report: U.S. Department of Justice Report on Investigation of the Easton, Pennsylvania Police Department pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. Sec. 14141. (November 26, 2007).

     Report: U.S. Department of Justice, Office of the Inspector General, Semi-Annual Report to Congress, April 1, 2007-September 30, 2007. Includes sections on investigations into allegations of misconduct by various personnel of the U.S. Department of Justice, including the F.B.I., U.S. Marshals Service and Federal Bureau of Prisons. (December 3, 2007). [.html format].

     Statistics: Pretrial Release of Felony Defendants in State Courts. Presents findings on the pretrial release phase of the criminal justice process using data collected from a representative sample of felony cases filed in the 75 largest U.S. counties in May during even-numbered years from 1990 to 2004. It includes trends on pretrial release rates and the types of release used. Pretrial release rates are compared by arrest offense, demographic characteristics, and criminal history. Characteristics of released and detained defendants are also presented. Rates of pretrial misconduct including failure to appear and rearrest are presented by type of release, demographic characteristics, and criminal history. Highlights include the following: About 3 in 5 felony defendants in the 75 largest counties were released prior to the disposition of their case. Surety bond surpassed release on recognizance in 1998 as the most common type of pretrial release. Defendants on financial release were more likely to make all scheduled court appearances. 11/07 NCJ 214994 Acrobat file (201K) | ASCII file (37K) | Spreadsheets (zip format 23K)

     Statistics: Indicators of School Crime and Safety: 2007. Presents data on crime and safety at school from the perspectives of students, teachers, principals, and the general population. A joint effort by the Bureau of Justice Statistics and the National Center for Education Statistics, this annual report examines crime occurring in school as well as on the way to and from school. It also provides the most current detailed statistical information on the nature of crime in schools, school environments, and responses to violence and crime at school. Information was gathered from an array of sources including: - National Crime Victimization Survey (NCVS) (1992-2005) - School Crime Supplement to the National Crime Victimization Survey (1995, 1991, 2001, 2003, and 2005) - Youth Risk Behavior Survey (1993, 1995, 1997, 1999, 2001, 2003, and 2005) - School Survey on Crime and Safety (1999-2000, 2003-04, and 2005-06) - School and Staffing Survey (1993-94, 1999-2000, and 2003-04) Highlights include the following: From July 1, 2005, through June 30, 2006, there were 35 school-associated violent deaths in elementary and secondary schools in the United States. In 2005-06, 78 percent of schools experienced one or more violent incidents of crime, 17 percent experienced one or more serious violent incidents, 46 percent experienced one or more thefts, and 68 percent experienced another type of crime. In 2005, approximately 6 percent of students ages 12-18 reported that they avoided school activities or one or more places in school because they thought someone might attack or harm them. 12/07 NCJ 219553 Press release | Acrobat file (1.8M) | ASCII file (214K) | Spreadsheets (zip format 178K)

     Statistics: Unidentified Human Remains in the United States, 1980-2004. Examines the number of unidentified persons reported to the Centers for Disease Control and Prevention’s (CDC) National Death Index (NDI), by State, from 1980 to 2004. This report also looks at the number of unidentified human remains reported to the Federal Bureau of Investigation’s (FBI) National Crime Information Center (NCIC) Unidentified Person File. It describes the characteristics by race and gender and the manner of death. Highlights include the following: Between 1980 and 2004, about 10,300 unidentified human remains were reported to the National Death Index (NDI). Almost three-quarters of unidentified persons were reported by 5 states; Arizona, California, Florida, New York, and Texas. Of the 2,900 National Crime Information Center records that contained data on the manner of death, 27% were ruled homicides; 12%, accidental deaths; 7%, natural causes; and 5%, suicides. The majority of unidentified persons were white (70%); blacks made up 15% of unidentified persons; and race could not be determined in 13% of the cases. 11/07 NCJ 219533 Acrobat file (201K) | ASCII file (7K) | Spreadsheets (zip format 4K)

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

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