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Assault and Battery: Physical

     Arrestee who had pled guilty to resisting a police officer could pursue his claim that officers beat him, using excessive force while he was waiting to be handcuffed after he was apprehended. While the officers acted properly in arresting him, his claim that they then used excessive force was not barred by this, since that claim did not necessarily imply the invalidity of his conviction. Hardrick v. City of Bolingbrook, No. 06-4208, 2008 U.S. App. Lexis 7657 (7th Cir.).

     Officers' use of force against a man found on the fifth floor ledge of an apartment building was not excessive. They believed that he was under the influence of alcohol or drugs, and acted in a reasonable manner in handcuffing and restraining him while placing him in custody for protective purposes, while waiting for an ambulance to arrive. They also acted reasonably later in restraining him and using a rear leg sweep when he tried to get away from their control. Estate of Tapueluelu v. City and County of San Francisco, No. 06-15638, 2008 U.S. App. Lexis 5425 (9th Cir.).

      Officers did not use excessive force in restraining a man who responded in an "aggressive" manner when they asked him to leave a recording studio. The man refused to cooperate and pointed a pen at them, and they restrained him. When the officers sat him up, he was not breathing, and efforts to revive him failed. He was later pronounced dead from a heart attack. An autopsy showed that he suffered from severe heart disease, and was under the influence of marijuana. There was no sign that the man was choked by the officers. The force used, the court found, was reasonable given the suspect's resistance to the officers. Gregory v. County of Maui, No. 06-15374, 2008 U.S. App. Lexis 9244 (9th Cir.).

      An officer who allegedly punched an arrestee who did not pose a danger and who did not resist arrest at the time was not entitled to use any force at that time. A second officer present, however, could not be held liable for failure to intervene, since there was no evidence that he could have anticipated and stopped the first officer's action. Hadley v. Gutierrez, No. 06-12605, 2008 U.S. App. Lexis 9695 (11th Cir.).

Assault and Battery: Stun Guns/Tasers

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

     A deputy's use of a Taser against an arrestee when she was handcuffed and in foot restraints was unnecessary and excessive if the arrestee's version of the incident was true. While the Taser was only applied for 1.5 seconds, it was allegedly applied in a wanton, and sadistic manner, and not as part of a good faith effort to restore discipline. The use of the Taser caused the plaintiff to experience pain and electric shock, and to develop a scar. Use of a Taser to intimidate or punish an arrestee is not objectively reasonable and violates clearly established law, so that the deputy was not entitled to qualified immunity. Orem v. Rephann, No. 07-1696, 2008 U.S. App. Lexis 9178 (4th Cir.).

     Officer who intended to use a Taser holstered near her gun against a suspect, but instead drew and fired her gun, killing the suspect was not entitled to summary judgment. At the time, the suspect was seized for purposes of the Fourth Amendment and was handcuffed and in the back of a patrol car.  Torres v. City of Madera, No. 05-16762, 2008 U.S. App. Lexis 9648 (9th Cir.).

Defenses: Statute of Limitations

     An arrestee's lawsuit over being shot during the arrest was barred by a Texas two-year statute of limitations. A doctor's letter stating that the plaintiff suffered from depression and anxiety was insufficient to show that the plaintiff was of "unsound mind" continuously and therefore should have the statute of limitations tolled (extended). Aduddle v. Body, No. 07-20190, 2008 U.S. App. Lexis 9745 (5th Cir.).

Domestic Violence

     A woman married to a police officer failed to show that she was denied equal protection regarding alleged incidents of domestic violence. The wife claimed that officers unjustifiably stopped her on a number of occasions, that her husband stalked her in his police vehicle, and that she was intentionally treated differently than other victims of domestic violence not married to police officers. To the contrary, the court found that officers took steps to try to protect the wife, even over the objections of both her husband and herself, including going to their home in response to a 911 call which was made and then "rescinded," and filing various reports. Any actual difference in treatment was the result of the wife's own requests, as she asked that only "informal" measures be taken to stop her husband's alleged violent actions. Mata v. City of Kingsville, Tex., No. 06-41518, 2008 U.S. App. Lexis 9211 (5th Cir.).

     An undersheriff was entitled to qualified immunity on an equal protection claim asserted by a lesbian who obtained an emergency protective order based on alleged domestic violence by her estranged girlfriend, but not on claims that he refused to enforce a permanent protective order that she subsequently obtained. The emergency order allowed the girlfriend to access the home for a period of time to retrieve some of her property, while the permanent order barred her from the premises altogether. The plaintiff claimed that she was provided with a lesser degree of protection than that provided to heterosexual victims of domestic violence. The court also allowed a Fourth Amendment claim to proceed on the basis that the undersheriff told the plaintiff not to return to her home while her girlfriend was present, and that he would arrest her if she did, which allegedly facilitated the girlfriend's seizure of some of the plaintiff's property from the premises. Price-Cornelison v. Brooks, No. 05-6140, 2008 U.S. App. Lexis 9628 (10th Cir.).

     Minor failed to show that there was a mandatory duty under California state law to protect her from violence by her father, who stabbed her in the heart and lung. The father had previously been arrested for screaming in an uncontrollable manner in the street and around his apartment, and violently banging on a refrigerator. Following the arrest, a urine test showed that he was under the influence of phencyclidine. Even though the ensuing investigation by a social worker was "lousy" and failed to make a proper determination about the risk of returning the minor to her father, there was immunity from liability for the exercise of discretion under these circumstances. Ortega v. Sacramento County Dept. of Health & Human Services, No C054262, 2008 Cal. App. Lexis 470 (3rd Dist.).

     A deputy who arrested a husband for violating a protective order obtained by his wife barring him from entering the driveway of his wife's residence had probable cause for the arrest, even if he made a mistake in interpreting the order as to the meaning of the word driveway as specified in the particular order at issue. This mistaken interpretation of the order did not forfeit the deputy's immunity for enforcing a court order, particularly when he contacted a dispatcher to attempt to get a clarification of the meaning of the order. James v. Adams County, Idaho, No. 06-35296, 2008 U.S. App. Lexis 6562 (9th Cir.).

False Arrest/Imprisonment: No Warrant

     A police officer had probable cause to arrest a motorist in a speeding vehicle that looked like an official police car. While charges of forging a license plate and impersonating an officer were later dismissed by a state court judge, after giving the motorist a "stern warning," this did not show that the arresting officer had violated the motorist's constitutional rights under the circumstances. Burnett v. Kelley, No. 07-1515, 2008 U.S. App. Lexis 9364 (6th Cir.).

     Following an auto accident, a man pulled one of the victims from her car, and carried her to the side of the road, attempting to help her until emergency personnel arrived. An officer arrived, and was talking to the other driver when the man saw the victim's eyes close, and saw her stop moving. He allegedly yelled to the officer, "she needs f--ing help!", and the officer ordered him to cease using profanity. The officer ultimately handcuffed and arrested the man. The court ruled that the arrestee's statements, even if "emphatic, coarse, and disrespectful," were not obscene under Pennsylvania state law, since they were not an appeal to "prurient interest." The officer, therefore, did not have probable cause to make an arrest for disorderly conduct. Tate v. West Norriton Township, Civil No. 06-CV-4068, 2008 U.S. Dist. Lexis 25928 (E.D. Pa.).

     Passenger in a vehicle arrested for refusal to provide identification sufficiently alleged a violation of his Fourth Amendment rights, because there was no showing that the passenger was required under Arkansas law to provide identification. The officer's authority to "request" information was insufficient to provide a basis for the arrest. The vehicle had been stopped for failure to display a license plate, and the driver, who was the passenger's grandson, did provide his own driver's license, proof of insurance, and documents concerning the ownership of the vehicle. Stufflebeam v. Harris, No. 06-4046, 2008 U.S. App. Lexis 7156 (8th Cir.).

      When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and to ensure their own safety. The U.S. Supreme Court ruled that officers did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by Virginia state law, or when they performed a search incident to the arrest. In this case, rather than issuing a summons required by state law, the police arrested a motorist for the misdemeanor of driving on a suspended license, and a search incident to the arrest produced crack cocaine. The U.S. Supreme Court reversed a decision of the Virginia Supreme Court finding that the search violated the Fourth Amendment because the arresting officers should have issued a citation instead of making an arrest. While the decision was made in the context of a criminal prosecution, the same reasoning would apply in a federal civil rights lawsuit seeking damages. Virginia v. Moore, No. 06-1082, 2008 U.S. Lexis 3674.

     When the arrestee was at the scene of the crime, and the crime victim, who had known him for more than four years, identified him as the perpetrator, a detective had probable cause to make a warrantless arrest. Teal v. San Diego County, No. 06-56509, 2008 U.S. App. Lexis 8338 (9th Cir.).

Federal Tort Claims Act

     Federal officers were not shown to have used excessive force against an arrestee, so that the federal government had no liability under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b)(1), 2671-2680. The court found, applying Wyoming law, that the force used during the arrest was justified, and that any injuries suffered were "incidental" to the reasonable use of force. The court also found no evidence of negligence by the officers. The U.S. was entitled to a "common-law privilege" defense protecting police officers from liability for using reasonable force during a lawful arrest. The court also found that, even if the force used was found to be unreasonable, comparative fault by the arrestee in resisting the lawful arrest was over 50%, which would bar any liability for the government under Wyoming law. The plaintiff could not claim that his arrest was unlawful, as his attorney had previously agreed that no such claim was presented. Fienhold v. U.S.A., No. 07-8058, 2008 U.S. App. Lexis 8597 (10th Cir.).

     U.S. government was not liable for alleged damages to hundreds of handguns and long guns, as well as ammunition and packaging seized from a man's storage spaces by agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) under search warrants. A detention of goods exception to the waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) barred the claim. Also, another waiver of sovereign immunity in 28 U.S.C. Sec. 2680(c)(1)-(4) only applied to property seized solely for the purpose of forfeiture, and, in this case, while forfeiture was a possibility for some of the weapons, criminal investigation was also a legitimate purpose of the seizure of the guns. Foster v. U.S.A., No. 06-56843 2008 U.S. App. Lexis 8125 (9th Cir.).

Firearms Related: Intentional Use

     When an officer shot at an allegedly stolen vehicle, intending to stop it, his intent was to seize both the driver and a passenger, even though the passenger, who was shot, was not the intended object of the gunfire. The passenger was therefore "seized" for purposes of a Fourth Amendment claim. Since a jury could also determine, under these circumstances, that the officer was not in danger, the officer was not entitled to qualified immunity based on his argument that his actions were objectively reasonable. Tubar v. Clift, No. 06-35836, 2008 U.S. App. Lexis 8346 (9th Cir.).

     A motorist moved his vehicle, boxed between other cars, forward and backwards, so that an officer acted objectively reasonably in shooting the motorist based on a belief that another officer under the motorist's car was hurt and would suffer additional serious bodily harm. No liability for shooting and killing the motorist under these circumstances. Costello v. Town of Warwick, No. 06-5138, 2008 U.S. App. Lexis 8378 (2nd Cir.).

First Amendment

     A business owner's claim that he was issued numerous municipal citations in retaliation for his frequent criticism of the city's policies and administration was at least arguable, given that he received 26 such citations in a time frame of less than two years. Additionally, he received twelve citations for failing to have two (rather than one) licenses for his business, and the number of the citations and their timing presented circumstances from which a retaliatory motive could be inferred. Williams v. City of Carl Junction, No. 07-2704, 2008 U.S. App. Lexis 9516 (8th Cir.).

     A city's ordinances requiring that picketers on public ways provide prior notice to the city and comply with certain restrictions did not violate the First Amendment, but rather furthered legitimate interests in maintaining the accessibility of streets and sidewalks. The ordinances were "narrowly tailored" in that they did not provide any discretion to prohibit picketing, and allowed for such notice to be given at any time, without "advance" notice or the paying of any fees or costs. A restriction on the size of signs furthered safety objectives and reduced possible obstruction of traffic control devices. Green v. City of Raleigh, No. 07-1351, 2008 U.S. App. Lexis 8242 (4th Cir.).

Governmental Liability: Policy/Custom

     City and its director were entitled to summary judgment in a lawsuit brought by Hurricane Katrina evacuees concerning their allegedly being forced from their homes. Claims were asserted for evacuees who lived in unflooded areas of the city who allegedly suffered property losses when they were denied entry into the area after the storm, as well as on behalf of those who lived in unflooded areas who were allegedly unlawfully arrested or searched under the mayor's order. The court found that these proposed "classes" were too "nebulous," and that claims for injunctive relief were moot because the mayor's order was no longer in place. Even if the seizure of one evacuee was found to be unconstitutional, there was no evidence that it was caused by an allegedly unconstitutional city policy. Reynolds v. New Orleans City, No. 06-31122, 2008 U.S. App. Lexis 6969 (5th Cir.).

     Street preachers failed to prove that there was a municipal custom of using inapplicable statutes to restrict their First Amendment rights, so that they were not entitled to summary judgment. The preachers were required to demonstrate an official policy or custom to prevail, despite the fact that they only sought injunctive and declaratory relief, rather than damages. The plaintiffs did present enough to raise a genuine issue of fact as to whether the city had a widespread custom as alleged, so that city's motion for summary judgment was also denied.  World Wide Street Preachers' Fellowship v. Town of Columbia, Louisiana, No. 05-0513, 2008 U.S. Dist. Lexis 26929 (W.D. La.).

Malicious Prosecution

     A prosecution against an arrestee for alleged embezzlement of auto parts from his employer's store did not terminate in his favor when the case was "retired to file" after he agreed to pay for the parts and court costs, so that he could not pursue his malicious prosecution claim. Brabham v. Waide & Associates PA, No. 06-61092, 2008 U.S. App. Lexis 8230 (5th Cir.).

     Police officers were entitled to summary judgment in a lawsuit by an arrestee claiming malicious prosecution, among other things. The plaintiff had been acquitted of assault upon one of the officers, but was convicted of other charges of carrying a weapon, resisting arrest, and aggravated assault. A grand jury's finding of probable cause barred the plaintiff's claim for malicious prosecution. Cook v. McPherson, No. 07-5552, 2008 U.S. App. Lexis 7705 (6th Cir.).

Off-Duty/Color of Law: Firearms Related

     In a lawsuit by a suspected shoplifter shot by a deputy sheriff employed as a private security guard while off-duty, one alleged prior incident of the deputy using excessive force was not sufficient to put the county on notice that the deputy needed further supervision or training, especially in light of the fact that the suspect in that prior incident admitted to trying to assault the deputy. The plaintiff therefore failed to show a policy or custom by the county that would render it liable for the deputy's actions. Barkley v. Dillard Dept. Stores, Inc., No. 07-20482, 2008 U.S. App. Lexis 9603 (5th Cir.).

Other Misconduct: Outrageous Conduct

     A sheriff's secretary claimed that he violated her Fourteenth Amendment constitutional rights in threatening to burn her home down, kill her family in the process, and set fire to her dog. These threats allegedly occurred after the sheriff's wife talked to the secretary and asked her to confirm her suspicions about her husband's "extra-curricular" activities. The sheriff later told the secretary that he had an audiotape of her conversation with his wife, and made the threats in the event that she told his wife about the tape. A federal appeals court upheld a determination that these allegations, even if true, did not constitute a violation of constitutional rights. Nuchols v. Berrong, No. 06-6132, 2008 U.S. App. Lexis 5365 (6th Cir.).

Public Protection: Crime Victims

     Alleged conduct of employees of the Oklahoma Department of Human Services in instructing individuals to cease reporting alleged abuse of a girl by her mother was "conscience shocking," if true, and a father of a deceased daughter (who was not currently married to the mother) stated a possible claim for violation of his daughter's due process rights under the state-created danger theory for failing to adequately investigate abuse allegations and discouraging reporting of additional such incidents. The employees were not entitled to qualified immunity. At the time of the daughter's death, she was in the physical custody of her mother, but in the legal custody of the Oklahoma Department of Human Services. The Department had previously removed the child from the mother's legal custody after investigating the child's injuries, including bruises and a broken clavicle, and concluding that they were non-accidental and the result of abuse. During unsupervised visits with the mother, the child allegedly continued to suffer injuries, and died while in the physical custody of the mother and her husband. Briggs v. Johnson, No. 07-6037, 2008 U.S. App. Lexis 8816 (10th Cir.).

Public Protection: Informants

     A participant in a police drug sting operation was approached on the street by a drug dealer who had been arrested and subsequently released on bail, and accused of aiding the police. The drug dealer then allegedly slashed his face, causing him serious injuries. In a lawsuit brought by the informant, the court ruled that his participation in the sting did not create a special relationship imposing a duty of protection, but that the allegation that the sting had been planned in a manner that caused the drug dealer to learn about his involvement could be the basis for liability on a "state-created danger" theory. In this case, that claim also failed, however. The officers' actions did not shock the conscience because they were intended to protect the safety of the officers as well as the participant's. Matican v. City of New York, No. 06-1983, 2008 U.S. App. Lexis 8724 (2nd Cir.).

Race or National Origin Discrimination

     When a police officer followed a man's vehicle after he left a building believed to be the site of drug trafficking, no reasonable jury could infer that his actions were only taken because the man was African-American. The mere fact that the plaintiff was an African-American who was followed by an officer was insufficient to assert a claim for racial profiling. Starr v. Downs, No. 07-5161, 2008 U.S. App. Lexis 6615 (10th Cir.).

Search and Seizure: Home/Business

     A warrantless search of the area surrounding a shed where dogs were kept on a property did not violate the property owner's Fourth Amendment rights. The trees and bushes around the property did not limit access to or visibility of the shed from adjacent properties, and the shed was clearly meant for dogs and not for "intimate human activities," so that it was not within the curtilage of the owner's home, and there was no heightened expectation of privacy there. Simko v. Intravaia, No. 06-5369, 2008 U.S. App. Lexis 9417 (2nd Cir.).

Search and Seizure: Vehicle

     A police officer stopped one motorist for speeding, and a second driver, who had been following the first vehicle, stopped on his own and told the officer that the two vehicles had been traveling together. The officer concluded that the second driver must have been speeding also, and ticketed both drivers. The second driver claimed that the officer engaged in race discrimination. The appeals court rejected that argument, noting that the first driver was white and was the motorist stopped by the officer. Additionally, as the plaintiff driver was never seized or searched, he could not pursue a Fourth Amendment claim. Probable cause existed for the ticket. Idahosa v. Despines, No. 07-2544, 2008 U.S. App. Lexis 9485 (7th Cir.).

Terrorism and National Security Issues

     New York appellate panel affirms a jury verdict that the Port Authority was more than two-thirds responsible for the 1993 terrorist bombing of the World Trade Center that killed six persons and injured more than a thousand. Nash v. Port Auth. of N.Y. & N.J., #129074/93, 2008 N.Y. App. Div. Lexis 374, 2008 NY Slip Op. 03991 (1st Dept.).

Towing

     While a city's municipal code did not authorize the seizure of the plaintiff's three unregistered vehicles, the inapplicability of the ordinance in question was not clearly established so that officers were entitled to qualified immunity for having the vehicles towed. Private companies involved in the towing were entitled to a defense of good faith when they acted at police direction and had no reason to believe that the seizure of the vehicles was improper. Tarantion v. Syputa, No. 06-16178, 2008 U.S. App. Lexis 6718 (9th Cir.).

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     Electronic Weapons: The April 2008 issue of the FBI Law Enforcement Bulletin, Vol. 77, Number 4 (April 2008), contains three articles concerning laser weapons: "Laser Weapons" by Robert J. Bunker and Dan Lindsay, page 2 ("no longer relegated to the realm of science fiction, laser devices have become weapons with potentially deadly consequences."); "Disruptive and Destructive Effects of Laser Illuminations," by Matt Bert, Lisa Campbell, and Sid Heal, page 10 ("whether wielded intentionally by terrorists or mischievously by citizens, laser devices can produce potentially lethal results."); and "Laser Legal Issues," by Madelyn I. Sawyer and John P. Sullivan, page 18("deterring and prosecuting criminal laser strikes requires a unified effort among local, state, and federal authorities."). The above link is to a .pdf version of the publication. For a version in .html, click here.

     First Amendment: "Criminal Speech," by Martin J. King, FBI Law Enforcement Bulletin, Vol. 77, Number 4 (April 2008) pg. 23. ("Law enforcement officers must know the extent to which the First Amendment permits preventative prosecution based on speech intended to persuade or induce others to engage in unlawful conduct."). The above link is to a .pdf version of the publication. For a version in .html, click here.

     Reports: The texts of eleven annual reports concerning shootings by New York police officers, along with a document entitled "The NYPD's Command Structure Report" may be accessed at http://www.nyclu.org/node/1756 along with an analysis of the reports by the New York branch of the American Civil Liberties Union (ACLU).

     Statistics: Felony Defendants in Large Urban Counties, 2004. (April 2008). Presents data collected from a representative sample of felony cases filed in the nation's 75 largest counties during May 2004. Murder cases were tracked for up to 2 years and all other cases for 1 year to provide a complete overview of the processing of felony defendants from case filing to disposition and sentencing. Data highlight the demographic characteristics of felony defendants and types of arrest charges. The report also includes in-depth information on the criminal records of felony defendants, including criminal justice status at the time of arrest and the number and type of prior arrests and convictions. It describes conditions of pretrial release (bail amounts, type of release bonds, and pretrial misconduct), adjudication outcomes (dismissal, diversion, guilty plea, trial conviction rates), and sentencing data for convicted felony defendants. See also Felony Defendants in Large Urban Counties, 2004 - Statistical Tables. Highlights include the following: Two-thirds of felony defendants were charged with a drug or property offense. More than three-fourths of felony defendants had a prior arrest history, with 53% having at least five prior arrest charges. Fifty-seven percent of felony defendants received a pretrial release prior to adjudication. 04/08 NCJ 221152

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

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