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Assault and Battery: Physical

     Business owners who claimed that a business license inspector physically assaulted them failed to show that the attack violated their substantive due process rights, since they failed to show that the abuse of governmental authority was an "integral element" of the attack. The inspector, while performing his job duties, was not authorized to use force, and did not rely on his official authority in attacking the plaintiffs. Under these circumstances, the inspector's actions may have been a state law assault and battery, but it did not amount to a violation of constitutional rights. Williams v. Berney, No. 06-1177, 2008 U.S. App. Lexis 5752 (10th Cir.).

     Deputy sheriff did not use excessive force or act unreasonably in detaining and tackling a man while a no-knock warrant to search for weapons and drugs was being executed on a neighbor's residence. The deputy tackled him and took him to the ground after he failed to get on the ground in response to a command. The deputy's belief that this use of force was needed was not unreasonable, based on the exigent circumstances of the quickly occurring situation. Chidester v. Utah County, No. 06-4255, 2008 U.S. App. Lexis 4918 (10th Cir.).

     Because there was a genuine dispute as to whether a bar owner ever physically touched a police officer (by putting a finger in his face) who then arrested him, summary judgment should not have been granted to the officer on claims that he used excessive force. He and two other officers allegedly tackled the bar owner. The incident took place in the parking lot of the bar after a shooting allegedly occurred there. Chelios v. Heavener, No. 06-4125, 2008 U.S. App. Lexis 5894 (7th Cir.).

Attorneys' Fees: For Plaintiffs

     Protest demonstrators and organizations challenged the constitutionality of a city ordinance regulating expressive activities in public forums, and were granted a preliminary injunction as well as an award of attorneys' fees. The injunction was lifted after the city enacted a revised ordinance resolving the complained of constitutional problems with the original one. On appeal, the court upheld the award of attorneys' fees under 42 U.S.C. Sec. 1988. The plaintiffs were prevailing parties, even though they did not get a final judgment in their favor. The preliminary injunction was sufficient, and the preliminary injunction was not dissolved based on a finding that the plaintiffs were not entitled to it, but rather only after the preliminary injunction had "done its job" by causing the city to pass the revised ordinance. People Against Police Violence v. City of Pittsburgh, No. 06-4457, 2008 U.S. App. Lexis 5644 (3rd Cir.).

Defamation

     A detective's passing on, to a newspaper, details of an arrest warrant for a man which subsequently turned out to be dismissed, resulting in the publication of his name within a "Most Wanted" list, did not fall within any exception to immunity from liability provided by an Ohio state statute, so that defamation claims against the city and the detective were properly rejected. There was no showing that the detective had any knowledge that warrants in the department's files were likely to be inaccurate. Miller v. Central Ohio Crime Stoppers, Inc., No. 07AP-669, 2008 Ohio App. Lexis 1110 (Ohio App. 10th Dist.).

Defenses: Absolute Immunity

     Social worker and her supervisor were not entitled to absolute immunity for their actions in filing a child dependency petition allegedly based on fabricated facts and evidence used to removed a son from his parent's home and to attempt to place the child under state supervision. In ruling that social workers were not entitled to absolute immunity in this context, the court overruled its previous decision in Doe v. Lebbos, #02-16326, 348 F.3d 820 (9th Cir. 2003). Beltran v. Santa Clara County, No. 05-16976, 2008 U.S. App. Lexis 1331 (9th Cir.).

Defenses: Qualified Immunity

     The question of whether a city, city officials, and police officials acted with malice was not relevant to the issue as to whether individual defendants were entitled to qualified immunity on claims arising out of a woman's arrest and prosecution. A court's examination of the entitlement to qualified immunity is limited to objective facts concerning whether or not there was probable cause. In this case, qualified immunity was proper because there was "at least arguable" probable cause to arrest the plaintiff. The plaintiff's claims, however, were sufficient to defeat summary judgment for the city itself. The plaintiff claimed that the police had a policy of "reflexively crediting" reports from neighbors with whom she had a long standing conflict, creating a foreseeable risk of an arrest not based on probable cause. Hilchey v. City of Haverhill, No. 05-10152, 2008 U.S. Dist. Lexis 18515 (D. Mass.).

     Police were entitled to qualified immunity for requiring a father to remain at a family home while his wife took a small child, discovered not to be breathing, to the hospital. They allegedly told him that he could not leave until investigators interviewed him as part of the investigation. The child subsequently died. Under these circumstances, it could not be said that an officer involved in a child death investigation acted unreasonably in taking these actions. The court ruled that, even if the investigation had essentially developed into a "de facto" arrest of the father, an officer could still believe that it was investigative. If a mistake was made, it was a reasonable one. Seymour v. City of Des Moines, No. 06-3842, 2008 U.S. App. Lexis 6138 (8th Cir.).

Domestic Violence

     A township's general order told police to regard domestic violence scenes as criminal investigations, to make contact with all involved parties, and to impound and secure as evidence any weapons. In a lawsuit filed by a domestic violence arrestee, the court found that this order was not facially unconstitutional, and that no proof had been presented that officers had implemented that policy in a way that permitted unreasonable searches and seizures. The police, when they arrived at the scene, observed both a "bloody victim" and a third individual who was not either the victim or assailant, but who did not cooperate with their inquiries, but instead acted belligerently in response to their questions. The arrestee's criminal conviction was upheld on appeal, and the appeals court in the federal civil rights lawsuit upheld summary judgment for the defendants. Lawrence v. Bloomfield Township, No. 05-2511, 2008 U.S. App. Lexis 5372 (6th Cir.).

False Arrest/Imprisonment: No Warrant

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

     A federal jury believed a parolee's claim that officers had planted a semiautomatic rifle in his home for the purpose of "framing" him, returning an award totaling more than $6 million to the parolee and his girlfriend. The court found that the parole search which uncovered the weapon was not based on probable cause or reasonable suspicion, and that the jury was properly told to examine the officers' intent and motives for the purpose of determining whether the suspicionless search was harassing or arbitrary and capricious. On the basis of the record, the court could not say that the jury's verdict was unreasonable. The court did, however, order a new trial on damages unless the plaintiffs accepted a reduction of the parolee's damages for emotional distress from $5 million to $3 million, his lost wages from $8,000 to $1,800, and the girlfriend's award for emotional distress from $750,000 to $300,000. Smith v. City of Oakland, No. C-05-4045, 2008 U.S. Dist. Lexis 20735 (N.D. Cal.).

     Probable cause existed for the arrest of two gun owners despite a federal statute, which allowed them, under some circumstances, to transport their weapons interstate without criminal liability under local gun laws. Even if officers were aware of the federal statute in question, they could justifiably fail to accept one of the plaintiff's explanation at "face value." The federal statute did not itself answer the question of the legality of the plaintiffs' actions, but requires that officers confirm a particular combination of facts, which officers are not required to accept merely based on the word of a suspect. Torraco v. Port Authority of New York & New Jersey, No. 05 Civ 5572, 2008 U.S. Dist. Lexis 21323 (E.D.N.Y.).

     No reasonable police officer could believe that there was probable cause to arrest a woman for obstructing his service of process following her alleged assistance to him in pointing out the location of the person he was trying to serve. Additionally, neither the officer nor the woman believed that she had authority to authorize him to go into the hospital room of the person he was trying to serve. Shipman v. Hamilton, No. 07-2098, 2008 U.S. App. Lexis 7665 (7th Cir.).

     There was probable caused to arrest a motorist when a student identified him as the man who had been her assailant in a kidnap attempt. Peterson v. Crawford, No. 07-14795, 2008 U.S. App. Lexis 5245 (11th Cir.).

     Detectives could reasonably believe that a man was a felon in possession of a firearm based on evidence of a prior felony grand theft conviction and his admission on the phone that he currently possessed firearms, as well a judicial issuance of a warrant to search his house, and the discovery of three firearms on the premises. Gray v. City of Los Angeles, No. 06-55512, 2008 U.S. App. Lexis 4240 (9th Cir.).

     Officers acted reasonably in conducting a pat-down search of a man observed in an alley who could not provide an address for the residence he claimed to live in, particularly after they saw a bulge in his sweatshirt. When he resisted the lawful pat-down search, the officers developed probable cause to arrest him, and the force used in doing so was not excessive. Torres v. Purdy, No. 06-55820, 2008 U.S. App. Lexis 4232 (9th Cir.).

     There was probable cause to arrest a man at a temporary trauma center for victims of the September 11th 2001 terrorist attacks in New York after a worker there repeatedly asked him to leave because of his "very excited state" and his incoherent "rambling," and he refused to do so, which constituted trespassing. Warheit v. City of New York, No. 06-4463, 2008 U.S. App. Lexis 7225 (2nd Cir.).

Firearms Related: Intentional Use

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

     A federal jury in Pennsylvania awarded $4 million in compensatory and $24 million in punitive damages to the father of a 12-year-old boy on a claim for excessive use of force. The unarmed youth was stopped while driving a stolen car, and was fatally shot in the back while running from the two defendant state troopers. The award consisted of $4 million for pain and suffering, $4,058 for burial expenses and $12 million in punitive damages against each of the two state troopers. Hickenbottom v. Nassan, #2:03-cv-00223 (W.D. Pa., March 12, 2008).

     Officers were entitled to qualified immunity for shooting and killing a man at the conclusion of a high speed pursuit when he pointed a silver cell phone at them, in a manner as though he were aiming a gun. At the time of the shooting, he was also running towards the officers. The officers could reasonably believe that the suspect was armed and resisting arrest. The fact that he was actually not armed with a gun was not relevant, particularly since the entire incident at the conclusion of the pursuit only took seven seconds. The incident was captured on videotape. Hudspeth v. City of Shreveport, No. 07-30260, 2008 U.S. App. Lexis 5829 (5th Cir.).

     Regardless of whether a suspect was running away from a deputy or not at the time he was shot and killed, the deputy could reasonably believe that the use of deadly force was justified against him, since he was in possession of a semiautomatic handgun. Under the circumstances, there was an objectively reasonable fear of death or serious bodily harm being suffered by the deputy. Garcia v. Santa Clara County, No. 06-15745, 2008 U.S. App. Lexis 4905 (9th Cir.).

First Amendment

     A police officer had probable cause to arrest a man for interfering with his criminal investigation by repeatedly telling his friend, the owner of a vehicle in which marijuana had been found, not to talk to the officer. The arrestee acted in a disorderly manner, and allegedly "spoke over" the officer's questions, interfering with the investigation. The officer did not violate either the Fourth or First Amendment, and the plaintiff's speech was not constitutionally protected. Additionally, the officer gave him a warning to be quiet prior to arresting him. The court also stated that, assuming that there was a constitutional violation of free speech rights, it was not clearly established, so the officer would still be entitled to qualified immunity. King v. Ambs, No. 06-2054 2008 U.S. App. Lexis 5899 (6th).

     Even if a man was initially stopped from speaking at a city council meeting because of the content of his speech, there were grounds to remove him from the meeting and place him under arrest for trespass when he charged the mayor because he was ruled out of order, and refused to leave. The arrest did not violate his First Amendment rights, since there was a compelling governmental interest in preserving order at the meeting. Kirkland v. Luken, No. C-1-02-364, 2008 U.S. Dist. Lexis 17378 (S.D. Ohio).

     A federal regulation, 38 C.F.R. sec. 1.218(a)(14), which prohibits unauthorized demonstrations by visitors to Department of Veterans Affairs (VA) property, does not violate the First Amendment. Preminger v. Sec'y Veterans Affairs, No. 2007-7008, 2008 U.S. App. Lexis 4017 (Fed. Cir.).

Governmental Liability: Policy/Custom

     An arrestee could not establish a town policy of "police harassment" merely on the basis of the current mayor's statements in a deposition in response to questions about a news article quoting him as saying that he had heard statements telling him that officers intimated people with their "stares" and their look. The court noted that the mayor also stated, in an affidavit, that he had no personal knowledge of police policies or customs at the time of the arrest. Further, even if he had such knowledge, he was not mayor at the time of the arrest, so that his knowledge would not show that town officials had notice of such police actions or policies. Whittington v. Town of Surfside, No. 07-13143, 2008 U.S. App. Lexis 6050 (11th Cir.).

     Plaintiff in federal civil rights lawsuit over two incidents in which officers allegedly pointed their guns at him without justification failed to provide any evidence that the city had a policy authorizing the use of excessive force against African-Americans such as himself, or that the incidents occurred as a result of a municipal policy or custom. The evidence in the record showed official orders telling officers to use the minimum amount of force necessary, and to use deadly force only as a last resort in response to a "grave" threat. Additionally, the two incidents at issue, since they occurred 13 months apart, did not show the existence of a custom. Wakefield v. City of Pembroke Pines, No. 07-11687, 2008 U.S. App. Lexis 6044 (11th Cir.).

Interrogation

     While an inmate was in custody awaiting trial and in a hospital being treated for asthma, a police officer guarding him allegedly talked with him about his pending case and secretly recorded the conversations, which were then used in the inmate's criminal trial for rape. No Miranda warning was provided. A federal trial court ruled that these allegations were sufficient to state at least a "theoretical" Fifth Amendment claim for violation of the privilege against compelled self-incrimination. A police chief who was not even employed by the municipality at the time of the incident, and who played no personal role in it, however, was entitled to summary judgment. Bellamy v. Wells, No. 5:07cv00035, 2008 U.S. Dist. Lexis 15738 (W.D. Va.).

Malicious Prosecution

     After a prosecution against a motorist for careless driving was dismissed, she sued the city for malicious prosecution. That claim was rejected, based on a finding that officers had probable cause to issue her the citation, since her vehicle struck the back of another car, and the officers had interviewed both the motorist and the other driver. Orban v. City of Tampa, Florida, No. 07-12635, 2008 U.S. App. Lexis 3724 (11th Cir.).

Negligence: Vehicle Related

     A deputy whose vehicle collided with another was engaged in an emergency operation at the time, based on his pursuit of a speeding vehicle, and his actions, which included activating his emergency lights, pulling over to the shoulder of the road, and initiating a U-turn, did not constitute reckless disregard. The deputy had assumed that the speeding vehicle, which was following behind him, was going to stop in response to the activation of his lights. The speeding motorist, however, did not stop and collided with the deputy's vehicle. The deputy sued the motorist for his injuries. The court found that whether the deputy was a plaintiff or defendant, under New York state law, his conduct was judged by the "reckless disregard" standard under these circumstances, so that the other motorist's defense that the deputy's actions constituted ordinary negligence was rejected. Ayers v. O'Brien, No. 2006-1020, 2008 N.Y. Misc. Lexis 621 (Sup.).

Pursuits: Law Enforcement

     A police officer struck and killed a pedestrian with his vehicle while responding to a non-emergency call. A federal appeals court found that this incident, while "tragic," only involved, at most, negligence or gross negligence, but was insufficient to show a violation of constitutional substantive due process rights, regardless of whether an intent-to-harm standard (used for chases) or a lower standard of deliberate indifference was used. The officer in this case did exceed the speed limit but failed to act with a "recklessness" sufficient to breach a constitutional duty. Daniels v. City of Dallas, No. 07-10883, 2008 U.S. App. Lexis 6619 (5th Cir.).

Search and Seizure: Home/Business

     Disputed issues as to whether police officers heard a loud disturbance and an agitated voice coming from apartments in a building made summary judgment improper in a lawsuit contending that they violated the Fourth Amendment by entering the premises without a warrant. The issue was whether the officers reasonably believed that someone in the building was in imminent danger, justifying the warrantless entry. Kubicki v. Whitemarsh Township, No. 06-4905, 2008 U.S. App. Lexis 5864 (3rd Cir.).

     At the time that an officer made a warrantless entry into a woman's home to search for the subject of a civil commitment order, the law on whether such an order could constitute exigent circumstances to justify such an entry and search on the home of an unrelated third party's home was not clearly established. The officer, therefore, was entitled to qualified immunity. Bates v. Harvey, No. 07-10570, 2008 U.S. App. Lexis 4559 (11th Cir.).

     The son of a resident of a house was a fugitive, with a number of outstanding arrest warrants. The officers, believing that the son was hiding inside his father's home and lived there, approached the residence, and the father allegedly blocked their way as they attempted to enter. The officers handcuffed him and threw him into a chair, where he injured his back. Officers searched the home, but failed to find the son. A federal appeals court found that the entry was lawful under these circumstances, and that handcuffing the father and putting him in the chair was not an excessive use of force, based on his failure to cooperate with the officers. The father's unlawful arrest claim was also rejected, because he pled guilty to driving without a license. Covington v. Smith, No. 07-1744, 2008 U.S. App. Lexis 601 (7th Cir.).

     A warrantless search of the plaintiff's hotel room, if it did violate the Fourth Amendment, did not violate a clearly established reasonable expectation of privacy, so that the defendants were entitled to qualified immunity. The plaintiff could not rely on case law decided after the incident to defeat the defendants' defense of qualified immunity. Carter v. O'Malley, No. 06-35548, 2008 U.S. App. Lexis 6013 (9th Cir.).

     In a case where officers entered a home on the basis of a search warrant for the home next door, there was unquestionably a violation of the homeowners' Fourth Amendment constitutional rights, since there was no justification for entering this home. The officers, however, were entitled to qualified immunity because they made efforts which were reasonable, although insufficient, to identify the right house to search. The officers did not intentionally enter the wrong home, and terminated the search after discovering their mistake. There was a disputed issue as to whether one officer remained in the house too long after the mistake was discovered, but a jury found in his favor. Rogers v. Hooper, No. 07-40809, 2008 U.S. App. Lexis 6509 (5th Cir.).

Search and Seizure: Vehicle

     A police officer stopped a motorist based on his knowledge of a report that Mexican gang members had threatened a man at a residence and his observation of two Hispanic men making a turn and looking at that man's apartment. Rejecting the argument that the stop violated the motorist's rights, a federal appeals court found that the officer made the stop on the basis of his experience and observations, which indicated that the motorist and his passenger might be in the area to carry out the recently reported threat. Lopez v. Bartlett, No. 06-55860, 2008 U.S. App. Lexis 4690 (9th Cir.).

Supreme Court Actions

     In a case (Avena and Other Mexican Nationals) involving 51 Mexican nationals confined in U.S. prisons, the International Court of Justice (ICJ) ruled that the U.S. had violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to provide them with notice of their rights to contact the Mexican consulate after they were taken into custody. The ICJ, therefore, held that each of these individuals were entitled to review and reconsideration of the U.S. state court convictions, even if they had failed to comply with otherwise applicable state rules concerning the challenging of those convictions. In a prior decision, Sanchez-Llamas v. Oregon, No. 04-10566, 548 U.S. 331 (2006), the U.S. Supreme Court ruled that the Convention did not negate the need to apply state rules. The President of the United States, however, issued a memo stating that the U.S. would "discharge its institutional obligations" and have state courts follow the ICJ decision. The Plaintiff in the immediate case, incarcerated in Texas, then filed a Texas state court habeas application challenging his capital murder conviction and death sentence because of the failure to inform him of his rights under the Vienna Convention. The U.S. Supreme Court has now held that neither the ICJ decision nor the President's memo are directly enforceable federal law which would pre-empt state limits on the filing of successive habeas petitions. The court further found that a treaty such as the Vienna Convention is not binding domestic law in the U.S. when Congress has not passed statutes to implement it, except if the treaty itself conveys an intention that it be "self-executing." The plaintiff's habeas petition was therefore properly dismissed. Medellin v. Texas, No. 06-984, 2008 U.S. Lexus 2912.

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     Article: "Demands on Police Services in a WMD Incident," by Joel A. Carlson, 77 FBI Law Enforcement Bulletin, No. 3, (March 2006), pg. 1. "Law enforcement executives must plan for the meaningful utilization of personnel and resources prior to the event to ensure an effective response to the demands on their organizations." [.html]

     Article: "Law Enforcement and Hazmat/WMD Emergency Response," by Ed Allen and Steve Patrick, 7 FBI Law Enforcement Bulletin, No. 3, (March 2006), pg. 16. "The recently revised National Fire Protection Association's Technical Standard 472 specifies minimum competencies for those who will respond to hazmat/WMD incidents, regardless of their agency or response discipline. [.html]

     Article: Perspective: The Deadly Dilemma: Shoot or Don't Shoot, by Shannon Bohrer, M.B.A., Harry A. Kern, M.Ed., and Edward F. Davis, M.S. 7 FBI Law Enforcement Bulletin, No. 3, (March 2006), pg. 7. [.html]

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

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