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Assault and Battery: Handcuffs and Restraints

     Officer was not entitled to summary judgment on the basis of qualified immunity on arrestee's claim that he suffered injuries when he was handcuffed behind his back, despite an allegedly obvious and severe medical condition resulting from ten surgeries to his body, which he informed the officer about. The arrestee claimed that the officer took only a "cursory" glance at the surgery site and his injury, made a "sarcastic" remark and continued to handcuff him behind his back despite a request that he be handcuffed in front. If true, this could violate the arrestee's constitutional rights, and further proceedings were required to resolve factual disputes. Dixon v. Donald, No. 07-5587, 2008 U.S. App. Lexis 19188 (Unpub. 6th Cir.).

Assault and Battery: Physical

     When it was undisputed that an arrestee refused to comply with officers' requests to calm down and ran into his house to attempt to evade arrest, the officers used required force to restrain him in order to take him into custody. Additional force was also used when the arrestee, despite being cap-stunned, continued his resistance, and the force used was clearly proportional to the need for it. Brown v. Rinehart, Civ. No. 07-023-SLR, 2008 U.S. Dist. Lexis 60463 (D. Del.).

     An arrestee offered no evidence to dispute declarations by an officer and a sergeant of the U.S. Secret Service that they did not use physical force on her, or to show that excessive force was used and caused an injury. She also failed to identify other witnesses who could dispute the officers' version of the incident. Powers-Bunce v. D.C., Civil Action No. 06-1586, 2008 U.S. Dist. Lexis 69798 (D.D.C.).

     A man arrested based on a complaint by his neighbor failed to show that the arresting officer used excessive force against him, with the court finding that, even if it believed the plaintiff's version of the incident, the force allegedly used by the officer was minimal and resulted in no physical injury. The plaintiff's claim that his neighbor was not arrested under similar circumstances because he was related to a police officer was purely a "conjecture," and did not constitute a viable equal protection claim. Jennejahn v. Village of Avon, No. 06-CV-6054, 2008 U.S. Dist. Lexis 67608 (W.D.N.Y.).

Assault and Battery: Stun Guns/Tasers

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

Federal appeals court upholds multiple uses of Taser against handcuffed motorist arrested on highway who refused to comply with instructions to stand up and walk to deputy's car.

     A deputy made an arrest of a motorist during a traffic stop at night on a highway in a location where there was passing traffic. He contended that he had to use force, including multiple applications of a Taser, to accomplish the arrest, due to the motorist's resistance. The arrestee, described in the court decision as "financially destitute and homeless," allegedly became "agitated" about getting a ticket, and, despite the deputy's repeated requests that he do so, refused to sign the traffic citation, which is required by Florida law. The deputy warned him twice that, if he did not sign, he would be arrested, and the motorist then said, "arrest me," and allowed himself to be handcuffed. He then got out of his car.

     As the deputy walked towards his patrol car with the arrestee, the arrestee, a 23-year-old man who was 6 feet, 2 inches tall and weighed 180 pounds, allegedly dropped to the ground behind his car, crossed his legs, and continued sobbing, refusing to get up and walk. When the deputy warned him of the possibility of getting hit by a passing car on the highway, the arrestee allegedly said, "My life would be better if I was dead."

    A federal appeals court overturned the trial court's denial of the deputy's motion for summary judgment on the basis of qualified immunity. The appeals court found that the deputy only used the Taser after first trying other approaches such as persuading the motorist to stop his resistance, attempting to lift him, and warning him repeatedly that the Taser would be used against him and then providing him with time to comply. The motorist, at the time, was handcuffed, but refused to stand up and go to the deputy's car, according to the court. The court reasoned that the presence of passing traffic created a possible hazard of injury, and that the Taser did not cause significant injuries such as burns requiring medical attention. Under the circumstances, the court concluded, the use of the Taser, which was used three times, was reasonable and moderate non-lethal force. The court also noted that, while the arrestee was handcuffed at the time, his feet were not bound, and he was moving. The court stated that the

"Plaintiff resisted arrest. Given this circumstance in the context of all the other facts, Deputy Rackard’s gradual use of force, culminating with his repeated (but limited) use of a taser, to move Plaintiff to the patrol car was not unconstitutionally excessive. In addition, even if Plaintiff could establish that some of the deputy’s use of force violated the Fourth Amendment, the deputy still would be entitled to qualified immunity because the applicable law at the time did not clearly establish that the deputy’s conduct -- given the circumstances -- was unconstitutional."

     The court also stated that:

"We do not sit in judgment to determine whether an officer made the best or a good or even a bad decision in the manner of carrying out an arrest. ... "The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. ... We also reject the district court’s rationale that had Deputy Rackard simply waited for back up, two officers could have lifted [Plaintiff] and carried him to the car without any application of force. A single officer in the deputy’s situation confronting a non-compliant arrestee like Plaintiff need not -- as a matter of federal constitutional law -- wait idly for backup to arrive to complete an otherwise lawful arrest that the officer has started. ... That an officer has requested more police assistance does not make the use of force before reinforcements arrive unreasonable."

     A strong dissent in the case stated that "I write to express my view that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant—who is sitting still beside a rural road and unwilling to move—simply to goad him into standing up."

     Buckley v. Haddock, No. 07-10988, 2008 WL 4140297, 2008 U.S. App. Lexis 19482 (Unpub. 11th Cir.).

     Editor's Note: A video of the incident at issue can be viewed on YouTube. To read the decision of the court below, click here. An on-line posting on a law professors' discussion forum discusses the posting of the video on the Internet.

Defamation

     An Ohio man's defamation lawsuit against a police department, based on an assertion that someone from the department was telling people in various places around the country that he was a "hit man," could not be the basis of liability. First, the police department could not be sued, as it was not a separate entity from the city. Second, the plaintiff failed to allege that the city's conduct was covered by any stated exceptions to the tort immunity provided for political subdivisions under Ohio state statutes. Additionally, since the plaintiff failed to name any individual city employees as defendants, he was unable to argue that the statements were made outside of the scope of employment or the pursuit of official duties that were covered by the tort immunity statute. Watson v. City of Akron, C.A. No. 27077, 2008 Ohio App. Lexis 4208 (Ohio App. 9th Dist.).

Defenses: Bankruptcy

     A motorist's lawsuit claiming that a city police officer used excessive force against him during a traffic stop should be stayed under 11 U.S.C. Sec. 362, a magistrate judge recommended, because the city employing the officers filed for bankruptcy protection, so that any judgment for damages could impact the bankruptcy estate's property. Additionally, the magistrate recommended denial of the officers' motion for summary judgment as there were genuine issues of material fact as to whether an officer used excessive force against the motorist, handcuffing him, dislocating his finger, kicking him, knocking him to the ground, jumping on him, and hitting him, after which other officers allegedly joined in the beating, actions that the officers disputed. Garfield v. Kenney, No.CIV S-07-0100, 2008 U.S. Dist. Lexis 71791 (E.D. Cal.).

Defenses: Statute of Limitations

     When a police department seized handguns in 1996 following a suicide, the decedent also left a note specifying who he wanted to have the weapons, a person subsequently named as the co-personal representative of his estate. One of the weapons was released to someone claiming ownership, and the others were destroyed in 2003 on the basis that they were unclaimed property. The estate representative only filed a claim for the guns in 2005, and she filed a federal lawsuit in 2008, claiming that the police department breached a duty to notify her concerning the disposition of the weapons. The court ruled that her claims were barred by a two-year statute of limitations, and that any "tolling" (extension" of the time limit would only have applied until the time when she first had the ability to file a claim on behalf of the estate, following her appointment in 2000. Stone v. Whitman, Civil Action No. 07-cv-01611, 2008 U.S. Dist. Lexis 69178 (D. Colo.).

Domestic Violence

     A woman called police and claimed that her husband had been drinking and was trying to leave with their infant daughter. The officers found that the husband was sober and he went to visit relatives. He slept in the same bed as the daughter and another child, and when he woke up, the daughter was dead. The wife claimed that officers who responded to her call improperly threatened to arrest her if she removed her daughter from her husband's car. While the officers claimed that they had a reasonable belief that the mother was about to violate a Tennessee state domestic assault law, the court ruled that the mother, at the time, had a legal right to her daughter, so that removing the child from the car would not have violated the statute. The mother was denied summary judgment, as were the officers on a Fourth Amendment claim, but they were granted summary judgment on a 14th Amendment due process claim. The mother failed to show that the city was liable on the basis of inadequate training of the officers. Adams v. Hendersonville, No. 3:06-cv-00788, 2008 U.S. Dist. Lexis 72003 (M.D. Tenn.).

False Arrest/Imprisonment: No Warrant

     Three former police officers filed a federal civil rights lawsuit arising from the Los Angeles Police Department's investigation and prosecution of them after they were implicated in wrongdoing by a former LAPD officer in an event that was known as the "Rampart Scandal." The three plaintiff officers were acquitted and claimed that the defendants, including prosecutors, the city, and the former chief of police conducted an improper and negligent investigation, and that they had been arrested without probable cause for falsifying a police report and conspiring to file such a report. While claims against the prosecutor and county were dismissed, a jury returned a verdict against the city and former police chief for damages of $5,000,001 for each of the officers. Upholding these awards, an appeals court noted that the jury found violations of the officers' constitutional rights, and that the violations stemmed from the city's official policy. The appeals court further noted that the former police chief was an authorized policymaker, and was "instrumental" in instituting the proceedings against the plaintiffs, with an alleged policy of preparing more cases for the filing of charges against officers in a quick manner, with or without probable cause. This, the court concluded, could have been found by a reasonable jury to have resulted in the officers' arrests. Harper v. City of Los Angeles, No. 06-55519, 2008 U.S. App. Lexis 14892 (9th Cir.).

     While an officer informed the plaintiff on the phone that her custody was sought on a claim for unlawfully firing a gun within the city limits, resulting in her surrendering herself to a jail the following day, an amended complaint in the criminal case properly charged her with firing a BB gun, which was also a crime under the same ordinance. Probable cause for the arrest did exist, on this basis. Foreman v. City of Port St. Lucie, No. 08-12562, 2008 U.S. App. Lexis 20733 (Unpub. 11th Cir.).

     A male arrestee provided no evidence that would support a claim for supervisory liability against an officer who was not involved in his arrest. As for a claim by a female arrestee charged with disturbing the peace by intoxication, there were factual issues as to whether a reasonable officer would have known that he was violating her rights by arresting her when there was "little evidence" to support a conclusion that she was violating the intoxication statute. Excessive force claims against an arresting officer were rejected, however. Mesa v. Prejean, No. 07-30953, 2008 U.S. App. Lexis 20154 (5th Cir.).

     A jury found that there was no probable cause for an arrest, but that there was probable cause for the arrestee's prosecution, and it awarded the arrestee $1 in compensatory and $3,000 in punitive damages for the false arrest claim. The trial court found that the jury's verdict was inconsistent, and required the granting of a new trial. A witness who signed a statement that the arrestee had carried a gun at the time of the incident at issue, which the officer used as the basis of the arrest, recanted at the arrestee's criminal trial, stating that the officer had used force and threats to coerce him into incriminating the arrestee. Annunziata v. City of New York, #06 Civ. 7637, 2008 U.S. Dist. Lexis 66705 (S.D.N.Y.).

     When a motorist was found guilty of speeding and improper start, her false arrest claims were barred because success in her federal civil rights lawsuit would have implied the invalidity of her conviction which had not been set aside. The motorist, an African-American, claimed that, after she was given a ticket for speeding, she pulled back into traffic, and the officer immediately pulled her over, with a second officer placing her in handcuffs when he arrived. She claimed that the officers made alterations to the original ticket to show that she was driving 90 miles an hour, was driving recklessly, and had made an improper start. Any claims for "racial profiling" were based on the same facts concerning the citation, and were therefore also barred. Hutson v. Felder, Civil Action No. 5: 07-183, 2008 U.S. Dist. Lexis 69642 (E.D. Ky.).

     A motorist cited for driving offenses did not show that his constitutional rights to due process or equal protection were violated because the citation and his arrest were made by an uncertified officer not under the direct supervision and control of a certified officer. There was no case law establishing a fundamental right to only be cited or arrested by a certified officer, and the plaintiff failed to show that the town and its officers treated other similarly situated persons differently. Matthews v. Autaugaville, No. 2:06cv185, 2008 U.S. Dist. Lexis 63887 (M.D. Ala.).

     Police officers had probable cause to arrest a man for neglect of a child based on finding him pulling a two-year-old daughter around in a wagon in 53-degree temperature while she was wearing only a soiled blanket. At the time, the arrestee allegedly smelled of alcohol and beer cans were also present in the wagon. The officers did not violate the child's privacy by lifting the blanket to see if she had other clothes on, as they were obligated under the circumstances to do so to check on her well being. Trepanier v. City of Blue Island, No. 03-C-7433, 2008 U.S. Dist. Lexis 75026 (N.D. Ill.).

     Officer had probable cause to arrest motorist for speeding after measuring his speed through the use of a radar gun and also determining, after stopping him, that his driver's license had been revoked. The court also rejected the motorist's claim that the officer used excessive force against him, noting that there was no demonstrable physical injury present. Phelps v. Szubinski, No. 04-CV-773, 2008 U.S. Dist. Lexis 72253 (E.D.N.Y.).

False Arrest/Imprisonment: Unlawful Detention

     Officers and a town were not entitled to dismissal of a woman's claim that she was unlawfully detained. While it could be argued that any reasonable person would have felt free to leave when she was being questioned by one of the defendant officers, the court stated, the arrival of three officers changed the circumstances enough to possibly constitute an unlawful seizure or improper interrogation, requiring further proceedings. The court rejected the argument that the plaintiff had clearly already been seized by the one officer before the others arrived, and that they therefore could not be liable for her seizure. Saenz v. Lucas, 07 Civ. 10534, 2008 U.S. Dist. Lexis 69571 (S.D.N.Y.).

     The plaintiff, a U.S. citizen, went to Iraq to work on a documentary film, and was arrested and then detained in a U.S. military camp after washing machine timers were found in his taxi. Such timers, according to the court, are often used in explosive devices. He was allegedly held for 48 days before he was provided with a hearing before a military officers' panel, following which an investigation cleared him of criminal conduct. He was then released six days later. He sued two generals, a number of other unnamed defendants, and the former Secretary of Defense, claiming that his Fourth and Fifth Amendment rights were violated by these actions. The federal trial court ruled that the plaintiff was protected by the provisions of the Bill of Rights while overseas, but that the defendants could not be held liable. They were entitled to immunity as the prior clearly established case law concerning the right to a timely probable cause hearing concerned detainees on "non-hostile U.S. territory" rather than overseas. There was also no violation of his right to due process, since he received prompt notice of the charge against him. In the setting of a battlefield, the court commented, the government has a strong interest in providing for the safety of military personnel, and this took priority over the holding of a probable cause hearing under the circumstances. The lawsuit was dismissed. Kar v. Donald Rumsfeld, Civil Action No. 07-0984, 2008 U.S. Dist. Lexis 73974 (D.D.C.).

False Arrest/Imprisonment: Warrant

     There was probable cause for the arrest, pursuant to a warrant, of a police officer on charges of bribery based on an affidavit stating that he allowed a stopped motorist exhibiting signs of intoxication at a checkpoint to leave after mentioning to the motorist police department equipment needs that he could satisfy, and subsequently had possession and control of money implicated in a bribery scheme. Rejecting the arrestee's claim that the special agent who obtained the warrant omitted material facts from the warrant affidavit, the court found that there was still probable cause even if the allegedly omitted facts were added that the arrestee did not receive the money directly from the motorist, that he was not in charge of the checkpoint at which the stop occurred, and that his processing of the money was conducted pursuant to the borough's rules. Soberick v. Borough of Lansford, No.3:04cv1738, 2008 U.S. Dist. Lexis 71882 (M.D. Pa.).

Firearms Related: Intentional Use

     Police officers' decision to shoot and kill a man threatening grocery store clerks with a knife was reasonable under the circumstances, particularly based on their reasonable belief that the suspect, who also possessed a screwdriver, was also engaging in aggressive actions threatening the officers. The officers did attempt first to use non-lethal force to subdue the suspect, but he continued to resist them. Gregory v. Zumult, No. 07-1282, 2008 U.S. App. Lexis 20551 (4th Cir.).

First Amendment

     Anti-abortion protester found guilty and fined for using a sound system outside an abortion clinic in violation of a city ordinance failed to show that this violated his First Amendment right to exercise his religion in violation of the Pennsylvania Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401-2407. The defendant provided no testimony that his actions of preaching to people near the clinic were activities "fundamental" to his religion, but merely showed that he was engaged in these activities on the basis of his religious beliefs. Pennsylvania v. Parente, No. 1575 C.D. 2007, 2008 Pa. Commw. Lexis 397.

Freedom of Information

     The plaintiff, who participated in a website discussing suicide bombings, among other things, requested documents under the Freedom of Information Act, 5 U.S.C. Sec. 552 concerning copies of any records retained concerning himself. He filed suit claiming that the FBI and CIA withheld relevant records. The trial court granted a motion by the FBI for summary judgment on the plaintiff's claim that it acted in bad faith, but denied summary judgment on his claim that the FBI's search for relevant records was inadequate, since the FBI's affidavit lacked an explanation as to why a search was not conducted using the terms the plaintiff provided in his request. Wiesner v. FBI and CIA, Civil Action No. 07-1599, 2008 U.S. Dist. Lexis 72222 (D.D.C.).

     The plaintiff association sought the release, in electronic form, of the names and addresses of all persons holding pistol licenses in the City of New York, with information about police, corrections officers, and government employees deleted, as required by law. While the trial court granted the request, an intermediate New York appellate court reversed, denying it. The court found that the request should be denied because it had been shown that the plaintiff association planned to use the list for an improper purpose of fund raising for itself or commercial gain, as well as its stated purpose of rallying opposition to gun control laws. In re New York State Rifle and Pistol Association, Inc., v. Kelly, 105989/04, 2813, 2008 N.Y. App. Div. Lexis 6784 (A.D. 1st Dept.).

Interrogation

     After a woman called 911 to complain about a domestic dispute, her boyfriend was found dead from a gunshot wound in the back of his head. She was interrogated by police for between six and eight hours before she confessed, but a jury later acquitted her of murder charges. Interrogation techniques used by deputies, such as telling her that she would never see her children again, not letting her sleep, and not allowing her to take anti-anxiety medicine, did not shock the conscience in violation of her due process rights. The court further found that medical examiners did not have a duty under Florida law to continue investigating the decedent's cause of death, even though the evidence did not rule out the possibility that the wound might have been self-inflicted. The court also found that there was probable cause for the arrest under these circumstances. Smith v. Campbell, No. 08-11161, 2008 U.S. App. Lexis 19085 (Unpub. 11th Cir.).

Malicious Prosecution

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

     A former Chicago police officer sentenced to death on kidnapping and murder charges subsequently had his conviction overturned, and sued FBI agents for allegedly "framing" him in violation of his constitutional rights. A jury found for the plaintiff on these claims, and $6.5 million in damages was awarded. The trial court subsequently granted judgment to the U.S. government on malicious prosecution claims under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-2680. The trial court subsequently also vacated the jury's award to the plaintiff on the federal civil rights claims, finding that the "judgment bar" rule of the FTCA contained in 28 U.S.C. Sec. 2676 barred the federal civil rights claims against the FBI agents, even though the judgment against them had previously been entered. Under the applicable provision of the FTCA, a judgment under the FTCA acts as a "complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." In this case, the plaintiff, by pursuing both federal civil rights claims, and claims under the FTCA, and failing to drop the FTCA claims after he received the jury's $6.5 million verdict on the federal civil rights claim lost any right to collect on the jury's verdict. His decision to proceed to take the FTCA claims to judgment, the court found, triggered Sec. 2676 and required the vacating of the jury's award after the FTCA claim was rejected. A federal appeals court upheld this result. The appeals court stated that it was "bound by the plain language of the judgment bar, which makes no exception for claims brought in the same action, and gives no indication that the sequencing of judgments should control the application of the bar." Manning v. U.S.A., No. 07-1120, 2008 U.S. App. Lexis 20996 (7th Cir.).

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

     A man convicted of a sexual assault, and exonerated when DNA proved that the semen found on the victim's underwear was not his, presented evidence sufficient to support a jury's verdict in his favor against a police officer for allegedly violating his due process right by tampering with or manipulating testimonial evidence and identification, causing his trial to be unfair. His claim was not time barred because his right to sue for malicious prosecution only arose after his criminal conviction was set aside. The Plaintiff was awarded $9,063,000 against the officer, a judgment for which the city was required to indemnify him. Dominguez v. Hendley, No. 07-1004, 2008 U.S. App. Lexis 20577 (7th Cir.).

     A man accused of murdering his wife had charges dropped when a medical exam determined that she died of natural causes. Prosecutors, however, had absolute immunity on their decision to charge him, and an officer who testified during grand jury proceedings had absolute witness immunity. Further, probable cause to arrest existed at the time of the arrest. Andros v. Gross, No. 07-2259, 2008 U.S. App. Lexis 20187 (Unpub. 3rd Cir.).

Positional, Restraint and Compressional Asphyxia

     Officers were on notice, based on prior cases finding "compression asphyxia," that keeping a person who was in a state of "excited delirium" restrained with his or her chest to the ground while applying pressure to the back and ignoring pleas that the subject could not breathe constituted excessive force under the Fourth Amendment. They were therefore not entitled to qualified immunity in a lawsuit alleging that they caused a man's death by restraint or positional asphyxiation by keeping him prone and handcuffed while in an agitated state, suffocating him under their weight. Arce v. Blackwell, No. 06-17302, 2008 U.S. App. Lexis 20162 (Unpub. 9th Cir.).

Privacy

     A husband and wife claimed that a city police officer violated the Driver's Privacy Protection Act (DPPA), 18 U.S.C. Sec. 2724(a) by disclosing the wife's address to her former husband, against whom she had obtained a restraining order. The jury returned a verdict for the defendants, but a federal appeals court found that the plaintiffs were entitled to a new trial because the trial court abused its discretion by failing to provide the jury with the notice of claim form which was in evidence and "central" to the plaintiffs' argument that the officer had falsified his report on an incident occurring after the notice of claim in order to create a potential defense to the lawsuit. Deicher v. Evansville, No. 07-2092, 2008 U.S. App. Lexis 20055 (7th Cir.).

Public Protection: Witnesses

     A witness' wife and children sued prosecutors and the estate of a deceased police chief, claiming that they failed to adequately protect him from murder by a man accused of sexually molesting the decedent's children. A federal appeals court rejected a trial court's ruling that the facts supported the plaintiffs' claim of a "state-created danger" causing the decedent's death in violation of due process. It ruled that a reasonable jury could not find that the defendants acted in a manner shocking to the conscience when they planned and carried out the accused man's arrest at the decedent's home and took his confession there. The court also found that the alleged failure to warn the plaintiffs about the accused man's prior threatening or menacing conduct towards the police chief could not be a basis of liability. Walter v. Pike County, Pa., No. 06-5034, 2008 U.S. App. Lexis 19760 (3rd Cir.).  

Police Plaintiff: Assault and Battery

     A sheriff, captain, sergeant, and watch commander were not liable for a detainee's brutal attack on a female courtroom deputy, inflicting severe brain damage, when he was brought to the courtroom from a holding cell and disarmed her. The courtroom deputy, the appeals court noted, was not in custody, so that the failure to provide adequate security to prevent the attack violated her due process rights only if the defendants acted with deliberate indifference or engaged in conduct that was conscience shocking, which was not the case here. Further, the courtroom deputy was exposed to the danger of such an assault by the nature of her employment, and the claims against the defendants amounted to those similar to negligence, not deliberate indifference or conscience shocking behavior. Hall v. Freeman, No. 08-11238, 2008 U.S. App. Lexis 18421 (Unpub. 11th Cir.).

Search and Seizure: Home/Business

     A man's guilty plea to possession of marijuana and use/possession of drug paraphernalia did not bar his claim that officers violated his Fourth Amendment rights when they detained him and searched his residence with a search warrant. The officers took their actions after a store security guard told them that the plaintiff had purchased "meth precursors." With that information, an officer detained the suspect at his home for four hours while a search warrant was being obtained. When the warrant arrived, marijuana and drug paraphernalia were found. The court reasoned that success on the claim that the detention or search were illegal did not necessarily imply the invalidity of the man's conviction, since the information provided by the security guard would have inevitably resulted in the discovery of the marijuana and drug paraphernalia. Additionally, the officers acted in good faith reliance on the warrant, which was issued by a neutral magistrate, and the evidence therefore could have been properly admitted even if the warrant lacked probable cause. Harper v. Jackson, No. 06-5658, 2008 U.S. App. Lexis 17105 (6th Cir.).

     Factual issues existed as to whether the owner of a postal business center and commercial mail receiving agency ever affirmatively refused to provide forms concerning post office boxes on the premises requested by a police detective, or physically impeding the detective from obtaining the forms, justifying the obtaining of a search warrant for the premises and the subsequent arrest of the owner. Factual issues also existed as to whether the subsequent warrantless search of the owner's vehicle was constitutional. Henderson v. County of Los Angeles, No. 06-56039, 2008 U.S. App. Lexis 20170 (Unpub. 9th Cir.).

Terrorism, Homeland Security, and National Security Issues

     A Malaysian Muslim in the U.S. on a student visa sought injunctive relief to remove her name from a "No-Fly" list. When she attempted to fly from California to Malaysia, the airline allegedly found her name on the government's No-Fly list, and a federal employee told local police to prevent her from flying and to detain her for interrogation, as well as to call the FBI. She was handcuffed and release after two hours. The next day, she was allowed to fly, but only after being subjected to "enhanced" searches. The court found that because placing the plaintiff's name on the No-Fly list was a result of an FBI order, and the FBI is not an agency named in 49 U.S.C. Sec. 46110 (requiring challenges to Transportation Security Administration orders, including the no-fly list, be filed in a federal appeals court, limiting the right to trial by jury), the trial court had jurisdiction to review the order to determine whether the inclusion of her name on the list violated her civil rights. While the Transportation Security Administration maintains the No-Fly list, according to the court, its compilation is handled by a branch of the FBI, the Terrorist Screening Center, which is not named in the statute as an agency whose orders have to be challenged only through proceedings in a federal appeals court. Other claims were dismissed, including a claim under 42 U.S.C. Sec. 1983, since none of the defendants acted under color of state law. Ibrahim v. Dept. of Homeland Security, No. 06-16727, 538 F.3d 1250 (9th Cir. 2008).

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     Statistics: FBI Releases 2007 Crime Statistics. (Sept. 15, 2008).

     Statistics: Cybercrime against Businesses, 2005. Presents the nature and prevalence of computer security incidents among 7,818 businesses in 2005. This is the first report to provide data on monetary loss and system downtime resulting from cyber incidents. It examines details on types of offenders, reporting of incidents to law enforcement, reasons for not reporting incidents, types of systems affected, and the most common security vulnerabilities. The report also compares in-house security to outsourced security in terms of prevalence of cyber attacks. Appendix tables include industry-level findings. Highlights include the following: * Computer virus infections were the most prevalent cybercrime among businesses in 2005. * The 3,247 businesses that incurred monetary loss from cybercrime lost a total of $867 million. * Most businesses did not report cyber attacks to law enforcement authorities. 09/08 NCJ 221943 Press release | Acrobat file (445K) | ASCII file (39K) | Spreadsheets (zip format 26K)

     Statistics: Federal Justice Statistics, 2005. Presents federal criminal case statistics on suspects and defendants processed in the federal criminal justice system. The report provides data on the number of persons arrested, investigated, convicted, and sentenced for a violation of federal law. It includes the number of offenders under federal correctional supervision at the pre-trial and post-conviction stages. It also describes case outcomes, including percent prosecuted, convicted, and sentenced by type of sanction. Data were collected from federal law enforcement, courts, and corrections agencies as a part of the Bureau of Justice Statistics Federal Justice Statistics Program. Additional data are available in the web component Federal Justice Statistics, 2005 - Statistical Tables. Highlights include the following: * Material witness, immigration, and weapons were the fastest growing arrest offenses during the period between 1995 and 2005. * In 2005, immigration (27%) was the most prevalent arrest offense followed by drug (24%) and supervision violations (17%). * Five federal judicial districts along the U.S.-Mexico border accounted for 40% of all suspects arrested and booked by the U.S. Marshals Service in 2005. 09/08 NCJ 220383 Press release | Acrobat file (116K) | ASCII file (23K) | Spreadsheets (zip format 12K)

     Terrorism, Homeland Security, and National Security Issues:  Attorney General Memorandum to Department Components on Guidelines for Domestic FBI Operations (October 3, 2008). Discusses new guidelines affecting FBI investigations and information gathering relating to federal crimes, threats to national security, and foreign intelligence, investigative assistance by the FBI to other federal, state, local, tribal, and foreign agencies, the FBI's intelligence analysis and planning functions, and FBI information sharing. The Consolidated Guidelines, published the same date, are also available on-line.

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

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