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Assault and Battery: Physical

     Deputy sheriffs were not entitled to qualified immunity in a lawsuit alleging that they used excessive force in removing a morbidly obese man from a courtroom after he was found in contempt of court, causing him to die after several deputies allegedly placed themselves on his back while he was on the floor. Hostility by the deputies to the man could support a finding that they were trying to punish him at the time. Both Fourth Amendment and Eighth Amendment claims were reinstated. Appeals court also rules that removal of the decedent's mother to another courtroom via wheelchair was necessary and did not involve the use of excessive force. Richman v. Sheahan, No. 07-1487, 2008 U.S. App. Lexis 200 (7th Cir.).

     Arrestee who had no conscious memory of what happened when he claimed that police struck him as he lay motionless could not pursue his excessive force claim. The arrestee, who suffers from diabetes, pulled into a grocery store after having a hypoglycemic attack while driving. He intended to buy food to correct the imbalance in his blood sugar, but allegedly started acting erratically. There was a witness who stated that he was struggling with police as they attempted to handcuff him, and was out of control. Since the arrestee could not deny or affirm any of his actions during the incidents, and there was no witness that supported his version of the incident, the officers were entitled to summary judgment on the basis of qualified immunity. Wysong v. City of Hehath, No. 06-4433, 2008 U.S. App. Lexis 2192 (6th Cir.).

     Appeals court could not grant officers summary judgment when they failed to raise issues of law concerning whether their alleged conduct constituted an excessive use of force, but rather only factual issues concerning whether the arrestee refused to extend his hands for cuffing and was resisting arrest when they allegedly used force against him. Ling v. Banda, No. 07-10353, 2008 U.S. App. Lexis 2049 (5th Cir.).

     If, as the plaintiff claimed, officers pushed him against a wall, held him by the throat and squeezed it, and made him sit in a chair for ten minutes, again grabbing him when he attempted to leave, these actions were unreasonable, as he allegedly only came to the police station to speak with officers about a family member involved in a fight. The officers were therefore not entitled to qualified immunity. Hamilton v. City of Jackson, Alabama, No. 07-12916, 2008 U.S. App. Lexis 350 (11th Cir.).

     A sheriff's action, in pushing a mother out of his path, while taking her adult daughter into protective custody for a mental health evaluation, did not constitute a Fourth Amendment seizure, as the mother was not "seized." The sheriff claimed that he believed that the mother, who had become "argumentative," was about to attack him. While his push allegedly made her fall backwards, and hit a table and chair, it also did not constitute conduct shocking to the conscience for purposes of a Fourteenth Amendment claim. Because of the legitimate interest in custody of the daughter, his "split-second" method of clearing his path, regardless of the mother's true intent, was entitled to qualified immunity. Clark v. Edmunds, No. 07-4029, 2008 U.S. App. Lexis 1315 (10th Cir.).

Damages: Punitive

     In a prior decision, Campbell v. Miller, 06-1981, 499 F.3d 1 (7th Cir. Ind., 2007), an appeals court ruled that no reasonable jury could find that a strip search and visual inspection of an arrestee's anal cavity, conducted in a backyard within the sight of others for no identified reason complied with the Fourth Amendment. The appeals court found that the officer who conducted the search was liable to the arrestee, while the city that employed him was not, as it did not have a policy that caused the manner in which the search had been conducted. In a hearing on damages on remand, the trial court ruled that the plaintiff was barred from seeking to recover punitive damages because a conclusive ruling on the issue had been reached at trial, and the arrestee had failed to challenge that portion of the court's rulings during the appeal. Campbell v. Miller, #1:03-cv-180, 2008 U.S. Dist. Lexis 501 (S.D. Ind.).

Defenses: Eleventh Amendment Immunity

     A homeowner who claimed that state police, acted improperly, surrounded his house while his wife and dogs were inside, and repeatedly shot into the home could not pursue federal civil rights claims against the State of Maine or the state police because of their Eleventh Amendment immunity. Palm v. State of Maine, Civil No. 07-102, 2008 U.S. Dist. Lexis 4975 (D. Maine).

Defenses: Qualified Immunity

     Union activists conducting an allegedly peaceful protest in downtown Miami, Florida claimed that officers from a county sheriff's office had detained them without probable cause while being supervised by the local police chief and police department. The police chief, in his individual capacity, was entitled to qualified immunity for claims against him based on his role as a supervisor. The plaintiffs claimed that he failed to adequately train the officers, and that a report established that he had notice of prior "widespread" unjustified arrests by police during public protests. The court stated that it found no prior case law establishing that a police chief, based on alleged past unjustified arrests by his officers, had an obligation to conduct training for "borrowed" officers concerning when to make arrests. Battiste v. Sheriff of Broward County, No. 06-14958, 2008 U.S. App. Lexis 339 (11th Cir.).

Defenses: Release Agreements

     A property owner charged with drug possession, among other charges, arising from the search of her motor home pursuant to a warrant, entered into an enforceable release-dismissal agreement in which she agreed to dismiss her federal civil rights lawsuit in exchange for the dropping of criminal charges against her. Her lawsuit claimed that the district attorney and police pressed "frivolous" charges against her for the purpose of impounding her motor home for their own use. She subsequently attempted to claim that the release-dismissal agreement was not enforceable, but the court noted that she had been represented by a competent lawyer, had been repeatedly told by the court what the meaning of the agreement was, and had stated at the time she signed the agreement that she knew what she was doing. Franco v. Chester Township Police Dept., No. 05-5133, 2008 U.S. App. Lexis 743 (3rd Cir.).

False Arrest/Imprisonment: No Warrant

     Police officers had probable cause to stop a motorist who drove on a highway for a time with his hazard lights on, which resulted in his subsequent arrest for drunk driving. Additionally, the arrestee had no reasonable expectation of privacy during a call he made to his attorney from the police station, since it was made in the presence of officers. The recording of that conversation was therefore not an unconstitutional search. Sherbrooke v. City of Pelican Rapids, No. 06-4072, 2008 U.S. App. Lexis 972 (8th Cir.).

     Officers had probable cause to arrest a man for alleged domestic violence against his girlfriend, based on her statements that he had attacked her. He did not dispute that she had made the accusation or that there were signs of a physical fight on her body. His claim that her statements were false was insufficient to establish that the officers lacked probable cause for the arrest. Hoskins v. City of Milwaukee, No. 06-3542, 2008 U.S. App. Lexis 599 (7th Cir.).

     No warrant was needed to arrest a woman's son for elder abuse when he was arrested outside his front door, and there was probable cause for the arrest. A retired police chief could not be held liable for alleged civil rights violations since he was not personally involved in the arrest, and could not be held liable merely because the arresting officers were his underlings. The court also ruled that, under the circumstances, the mother could not reasonably believed that she was also under arrest. Labankoff v. City of Santa Rosa, No. 05-16408, 2008 U.S. App. Lexis 1744 (9th Cir.).

     A man was arrested, and allegedly assaulted, by an officer while he was purportedly trying to assist his brother in salvage operations at a home which had caught on fire. He argued that he had been compelled to plead guilty to harassment and disorderly conduct charges because prosecutors failed to properly investigate the officer's charges against him, and also failed to properly investigate his own criminal complaint against the officer. The arrestee's claims for damages arising out of the arrest and prosecution were barred under Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), because his conviction had not been set aside. Additionally, he had no constitutional right to have prosecutors investigate his charges against the officer, and prosecutors were entitled to prosecutorial immunity for their actions in connection with prosecuting him. Fuchs v. Mercer County, No. 06-4473, 2008 U.S. App. Lexis 547 (3rd Cir.).

False Arrest/Imprisonment: Unlawful Detention

     Reports that a motorist had displayed a gun at a truck driver during a "road rage" incident were sufficient to give an officer sufficient reasonable suspicion of criminal activity to detain him handcuffed in the back seat of a police cruiser for about 15 minutes while determining whether the truck driver intended to file criminal charges. Williams v. Leatherwood, No. 06-6322, 2007 U.S. App. Lexis 30056 (6th Cir.).

     A motorist stopped and detained by a police detective raised a genuine issue of fact as to whether the initial seizure of herself and her vehicle had been improperly extended for over two hours after there was no longer any reasonable suspicion of any criminal activity. She claimed that she remained handcuffed at the scene for a prolonged period of time and was then directed to go with officers to police headquarters. Overturning summary judgment for the detective, the appeals court ruled that the plaintiff alleged facts from which a reasonable jury or other factfinder could find that her continued detention violated the Fourth Amendment. Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis 29520 (2nd Cir.).

Firearms Related: Intentional Use

     A man shot by a police officer claimed that the incident occurred after he and others had been shot at by someone in a passing car and another man shot back at that car. The officer was traveling towards the scene of the incident and heard the gunshots. The officer then shot the plaintiff as he and another individual, who was armed, ran away. Overturning summary judgment on the basis of qualified immunity for the officer, a federal appeals court ruled that there were disputed factual issues of whether the officer acted to seize the plaintiff, the armed person, or both of them, and whether the bullet that struck the plaintiff had been fired by the officer. If the officer used deadly force to seize the plaintiff, who was unarmed and running away, a jury could have found this to be unreasonable. Moore v. Indehar, No. 06-4047, 2008 U.S. App. Lexis 2243 (8th Cir.).

     Officer who shot and killed a man outside his home was entitled to qualified immunity when the decedent had threatened to commit violent acts against himself and other persons, he was armed with a knife, he refused to comply with repeated orders to drop the knife, and he allegedly raised the knife blade above his shoulder and pointed it towards officers, turning and stepping towards an officer. Larsen v. Murr, No. 06-1094, 2008 U.S. App. Lexis 25 (10th Cir.).

First Amendment

     Rules barring street performers from "actively" soliciting donations in a city entertainment zone, while allowing "passive solicitations," together with a permit requirement for certain activities in the zone did not violate the First Amendment. The city had a substantial interest in protecting the public for unwanted behavior and harassment, and the rules were content neutral, and allowed the plaintiff, without a permit, to convey any desired message verbally while walking through the zone, as well as allowing him to pass out leaflets, gather signatures, or make speeches. Berger v. City of Seattle, No. 05-35752, 2008 U.S. App. Lexis 331 (9th Cir.).

     In a lawsuit filed after the Los Angeles Police Department's alleged wrongful forceful dispersal of a protest concerning immigration issues, the court ruled that the case met the requirements for certification of a class action. It found that the alleged actions were not "an isolated event," but that instead, an "unfortunate" history of prior civil rights violations by the Department, and the contents of a departmental report made it "clear" that it was not "hypothetical" that there was a "threat of future injury." The court found commendable the Department's remedial actions since the incident at issue, but found that there was a realistic threat of a repetition of the alleged violations. The police report showed that "very few" people in the crowd of 6,000 persons were disorderly or attacked police, despite the decision to declare the assembly unlawful and disperse the crowd. Multi-Ethnic Immigrant Workers Organizing Network v. City of Los Angeles, No. CV 07-3072, 2007 U.S. Dist. Lexis 92724 (C.D. Cal.).

     Public university had a right to bar uninvited guests from access to any part of its property, specifically from the student union, its terrace, and the terrace walkway, and did not violate the First Amendment rights of political campaign staff members who wanted to display campaign signs and gather signatures in support of a candidate on the property. A public university can control its property and place limits on where uninvited persons can engage in expressive activity. Masel v. Mansavage, No. 07-cv-454, 2007 U.S. Dist. Lexis 93934 (W.D. Wis.)

     Federal trial courts grants preliminary injunction against enforcement of a city ordinance criminalizing as a disturbance of the peace addressing "offensive, derisive, or annoying words" to persons on the street or other public places. The ordinance was applied by police officers who told a man to leave or risk arrest under the ordinance when he spoke his religious views against alcoholism as people entered or left a restaurant that serves alcohol. The court found that the ordinance was a "content-based" restriction on speech, and was vague and overbroad, since the officers were required to determine, on a subjective basis, what statements were "annoying." Netherland v. City of Zachary, Louisiana, #07-409, 2007 U.S. Dist. Lexis 90798 (M.D. La.).

Governmental Liability: Policy/Custom

     In a case where police officers shot and killed a motorist during what was characterized as a "routine" traffic stop, a federal appeals court found that the city's written policy concerning the use of deadly force complied with Fourth Amendment requirements and required officers to reasonably believe that there was an imminent threat of death or serious bodily injury before shooting. There were, however, genuine issues of material fact as to whether there was an alleged "longstanding" practice or custom of use of deadly force in circumstances where it was not warranted, sufficient to support a claim for municipal liability. The court rejected, however, any claim based on inadequate training. Price v. Sery, No. 06-35159, 2008 U.S. App. Lexis 1196 (9th Cir.).

Interrogation: Children

     A twelve-year-old child was interrogated away from his mother and a prosecutor then ordered police to arrest him in connection with the death of a toddler. His conviction was subsequently overturned on the basis of a coerced confession in violation of the Fifth Amendment. He subsequently filed a federal civil rights lawsuit against the prosecutor and her employer for alleged violations of the Fourth and Fourteenth Amendments. After the lawsuit was filed, the prosecutor allegedly told a Marine recruiter that the plaintiff would "always" be a suspect in the murder, resulting in the rejection of his enlistment. A federal appeals court overturned qualified immunity for the prosecutor, ruling that the prosecutor could not reasonably have believed that there was probable cause for the arrest. The court also ordered further proceedings on claims against the county based on its alleged withholding of exculpatory (Brady) materials, and on the Plaintiff's malicious prosecution, First Amendment retaliation, and defamation claims. Harris v. Bornhorst, No. 06-3729, 2008 U.S. App. Lexis 724 (6th Cir.).

Malicious Prosecution

     In a lawsuit by an arrestee claiming that a deputy sheriff had planted drugs which were used to give him a citation for possession of marijuana, resulting in a fine, the trial court acted properly in dismissing the lawsuit under Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994).  An award of damages in the case would have implied the invalidity of the plaintiff's criminal petty-misdemeanor conviction and the fine, which had not been overturned or otherwise invalidated. Abdullah v. Minnesota, No. 06-4142, 2008 U.S. App. Lexis 2448 (8th Cir.).

     In a malicious prosecution due process lawsuit against a police detective and the plaintiff's ex-wife, the plaintiff claimed that he had been deprived in bad faith of a fair trial on charges concerning the alleged molestation of his adopted daughter. The detective, who had investigated the molestation accusation, was also the current husband of the plaintiff's ex-wife, and allegedly steered the investigation to benefit his wife. He allegedly failed to tell prosecutors the "full extent" of his relationship with the plaintiff's ex-wife, and also allegedly did not preserve the purported victim's diary, which did not support the molestation claim. A federal appeals court rejected an argument that the detective was entitled to summary judgment, since no reasonable officer could have believed that these alleged actions were proper. White v. McKinley, No. 07-1002, 2008 U.S. App. Lexis 1930 (8th Cir.).

     At the time of his arrest, officers had probable cause to charge a man with selling cocaine, on the basis of statements from an informant concerning a "controlled buy." While charges were not filed for four months, the plaintiff in a malicious prosecution lawsuit failed to show that a sheriff, during that time period, was made aware of any information contradicting the informant's information or which otherwise showed that probable cause no longer was present for the prosecution. McCloud v. Fortune, No. 07-10850, 2008 U.S. App. Lexis 1091 (11th Cir.).

Procedural: Discovery

     A prisoner was released from custody after serving more than 20 years for a rape and murder when DNA testing of semen found on the victim indicated he had been innocent of the crime. He then sued the city and several police officers, and a jury returned a verdict in favor of the defendants. A number of officers, who had resisted complying with discovery requests on the basis of Fifth Amendment grounds, were allowed, by the trial court, to testify at the trial, and evidence of their prior silence was excluded. The trial judge compelled the officers to submit to discovery and to undergo depositions before testifying. A federal appeals court found no abuse of discretion by the trial judge, and rejected the plaintiff's appeal of the verdict. The court noted that the plaintiff had not requested a continuance of the case based on the short period of time between the ordered compliance with discovery and the trial. Evans v. City of Chicago, No. 06-3401, 2008 U.S. App. Lexis 1246 (7th Cir.).

Public Protection: Arrestees

     In a lawsuit over the suicide of an arrestee who shot himself in the backseat after obtaining a deputy sheriff's gun left on the front passenger seat of the deputy's vehicle, there was no evidence that the deputy was deliberately indifferent to a known risk of harm. Gish v. Thomas, No. 07-12368, 2008 U.S. App. Lexis 2494 (11th Cir.).

Public Protection: Crime Victims

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

     A police dispatcher allegedly improperly used his job facilities, including searching 911 databases, to find and kill his former girlfriend and her boyfriend, relying on motor vehicle and license plate registrations The dispatcher's supervisor allegedly became aware of the dispatcher's improper searches and suspended him. During the suspension, two co-workers allegedly assisted him in obtaining information without authorization. In a lawsuit brought by the estate of the boyfriend, "state-created danger" claims against the supervisor were rejected, since he did not "act affirmatively" to increase the danger, but the plaintiff sufficiently pled that the co-workers knew of the dispatcher's threats to make the boyfriend "pay" for dating his ex-girlfriend, and acted with deliberate indifference to the results of their acts in assisting him, which constituted "conscience-shocking" behavior. The appeals court further ruled, however, that the plaintiff should be allowed to amend her claims against the supervisor to attempt to better establish them. Phillips v. County of Allegheny, No. 06-2869, 2008 U.S. App. Lexis 2513 (3rd Cir.).

Pursuit: Law Enforcement

     A deputy sheriff pursued a car traveling 73 miles per hour in a 55 mph zone, and the motorist accelerated to speeds in excess of 85 mph. After ten miles and six minutes of pursuit, the deputy tried to use a precision intervention technique to stop the pursued vehicle but wound up applying his push bumper to the rear of the pursued car. The pursued car crashed, and the motorist was rendered a quadriplegic. Negligence and battery claims under Georgia state law were rejected on the basis of the plaintiff's failure to show that the deputy or other defendants had an "actual intent" to cause injury or acted with malice. Harris v. Coweta County, Ga., No. 07-13941, 2008 U.S. App. Lexis 353 (11th Cir.).

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

     Police officers involved in high-speed pursuits are entitled to qualified immunity in all cases unless it can be shown that they acted with a deliberate intent to harm those injured in the incident. The chase in this case lasted over an hour, covered almost 90 minutes, and involved at least a dozen units and a helicopter. A motorist who saw the pursuit moved to avoid the police vehicles, and they safely passed him, but minutes later, the defendant officer, who was joining the pursuit, approached, traveling almost 100 miles per hour, and his vehicle's tires slipped from under him, and he sideswiped the motorist's vehicle. Both vehicles then spun out of control, and the motorist suffered injuries. In this case, the defendant officer did not act with any intent to harm or any motivation other than doing his job, attempting to catch a fleeing suspect who was a danger to the community. The court ruled that the "intent to harm" standard applies to all high-speed chases, not only those which involve "emergencies" or "split-second decisions." Bingue v. Prunchak, No. 05-16388, 2008 U.S. App. Lexis 805 (9th Cir.).

Race/National Origin Discrimination

     African-American business owner failed to show that racial discrimination was the basis of police conduct that allegedly wound up putting his bar and grill out of business. The defendants allegedly cited him for numerous violations, but never pressed charges, and he claimed that they singled out his business on the basis of racial animus. Claims against the city were abandoned, and the plaintiff failed to show that a police sergeant's actions violated the Fourth Amendment or violated his right to equal protection of the law. Richards v. City of Los Angeles, No. 06-55593, 2007 U.S. App. Lexis 29979 (9th Cir.).

Search and Seizure: Home/Business

     A code enforcement officer for a town did not conduct a "search" of a landowner's property when he observed an alleged code violation (substantial improvements made to one of the owner's trailers without a building permit) from adjoining property while investigating a litter complaint. The officer was authorized to subsequently enter the owner's land to post a stop-work order, so that his entry to do so was not trespass. Woodhull v. Town of Riverhead, No. 2006-11179, 2007 N.Y. App. Div. Lexis 12861 (A.D. 2nd Dept.).

     A warrantless search of a home, which had been the scene of a murder of a married couple, did not violate the Fourth Amendment when it was carried out with the consent of the couple's daughter, who was one of the executors of their estate. During the search of a storage room, a plastic container was found with bullets similar to those used to commit the murder, with the container owned by the son of the murdered husband. The evidence was subsequently used to obtain a warrant to search the son's apartment. In a lawsuit by the son, the court found that he did not have a legitimate expectation of privacy in the unlocked storage room or in property under the control of the decedents' estates. Warner v. McCunney, No. 05-5167, 2008 U.S. App. Lexis 279 (3rd Cir.).

Search and Seizure: Search Warrants

     During a criminal investigation concerning the removal and disposal of an underground gasoline storage tank, a search warrant was obtained for a premises, and, during the search, materials not listed in the warrant were found. A second warrant for the premises was then obtained and executed. Subsequently, criminal charges against the suspects were dropped. In a lawsuit for unlawful search and seizure, the court found that those involved in the first search were entitled to qualified immunity because they could rely on the magistrate's determination of probable cause, and a review of the warrant by two prosecutors. The second warrant, however, was found to "obviously" lack probable cause, since it was based on the prior discovery of several checks and a ledger that were dated five years prior to the alleged fraudulent acts being investigated, which were plainly insufficient to provide probable cause. An investigator, therefore, was not entitled to qualified immunity on that second search. KRL v. Estate of Moore, No. 06-16282, 2008 U.S. App. Lexis 880 (9th Cir.).

     Article: "Countering Violent Islamic Extremism," by Carol Dyer, Ryan E. McCoy, Joel Rodriguez, and Donald N. Van Duyn, 76 FBI Law Enforcement Bulletin, No. 12 (Dec. 2007), pgs. 3-9. "Working with communities and identifying patterns and trends of extremist behavior in its early stages can help counter the spread of extremist ideology." [.html format]

     Article: "Words Make Worlds," by Angus Smith, 76 FBI Law Enforcement Bulletin, No. 12 (Dec. 2007), pgs. 12-18. "To effectively penetrate the extremist world, the law enforcement and intelligence communities must understand extremist discourse." [.html format].

     Article: "Interview Clues," by Vincent A. Sandoval, 77 FBI Law Enforcement Bulletin, No. 1 (Jan., 2008), pgs. 1-9. "Individuals deliberately camouflage the truth by using words that leave an investigative trail." [.html format]

     Publications: Increasing Efficiency in Crime Laboratories NCJ 220336, January 2008, In Short, by National Institute of Justice Summary | PDF

     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)

     Terrorism, Homeland Security, and National Security Issues: "Annual Threat Assessment of the Director of National Intelligence for the Senate Select Committee on Intelligence," by J. Michael McConnell, Director of National Intelligence. 47 pgs., February 5, 2008. States, among other things, that "Al-Qa’ida and its terrorist affiliates continue to pose significant threats to the United States at home and abroad," and that the radical Islamic terrorist group has improved its "identification, training, and positioning of operatives for an attack" inside the United States.

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

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