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Assault and Battery: Physical

    Homeowner who claimed that officers severely injured her while beating her during a warrant-based search of her home could not pursue Fourteenth Amendment due process claims for excessive use of force since such claims may only be brought under the Fourth Amendment. The plaintiff also failed to adequately show that the city engaged in inadequate training, supervision, or disciplining of officers and that such inadequacies caused her injuries.  Torres v. City of Allentown, Civil No. 07-1934, 2008 U.S. Dist. Lexis 50522 (E.D. Pa.).

     Once a woman reacted to police officers' presence on her property by pulling a court order away from an officer, it was reasonable for officers to believe that a brief show of force was necessary to make sure that she complied with their orders. They were there to aid a neighbor in retrieving his property pursuant to a court order. The plaintiff failed to show that the officers used more force than was necessary. Slusher v. Terry, No. 07-1756, 2008 U.S. App. Lexis 18726 (6th Cir.).

     Police officers were not entitled to summary judgment in a lawsuit for injuries to a motorist occurring after a traffic stop followed by a chase and an arrest. There were genuine issues of fact concerning the amount of force used and, in particular, that used against the arrestee after he was handcuffed. The court also rejected the argument that medical evidence concerning the plaintiff's physical injuries was required to create a genuine issue of material fact for trial. Dukes v. Miami-Dade County, No. 08-10004, 2008 U.S. App. Lexis 18052 (Unpub. 11th Cir.).

Assault and Battery: Stun Guns/Tasers

     A mother sued a city and three city police officers for causing the death of her schizophrenic and previously suicidal son after she summoned them to her home with a 911 call. The son was then barricaded in his bedroom, refusing to leave. The officers forced opened the bedroom door and fired Tasers at him, and he was pronounced dead the next day. The plaintiff claimed that inadequate training by the city in training officers to deal with mentally ill people caused his death. The city sought to bifurcate the plaintiff's claims, with the claims against the officers being tried first, for the purpose of avoiding the burden of discovery. The court ruled that, since the mother's claim was a very specific one of inadequate training on dealing with mentally ill persons, discovery on that issue would not constitute a "significant burden" on the city, so the city's motion for bifurcation, combined with a stay of discovery, was denied. Wilson v. City of Chicago, No. 07C-1682, 2008 U.S. Dist. Lexis 60658 (N.D. Ill.).

Attorneys' Fees: For Plaintiffs

     After the plaintiff was awarded compensatory and punitive damages for the seizure and destruction of his property by the city, allegedly without due process, a trial court found that a quarter to a third of the time spent on research, appeal, and trial preparation, and half of the time spent on investigation was unnecessary, as well as reducing the attorneys' hourly rate to the rate of a paralegal for time spent summarizing depositions, and reducing the attorneys' hourly rate from $300 to $250 per hour. A federal appeals court found that the trial judge failed to adequately explain the reductions made for supposedly duplicative work, or for time spent doing investigation and interviews. The trial court also improperly based part of its reduction on speculation concerning how another law firm would have staffed the case, and applied its own "de facto" policy of awarding $250 per hour in civil rights cases. Further proceedings were ordered on the amount of attorneys' fees to be awarded. Moreno v. City of Sacramento, No. 06-15021, 2008 U.S. App. Lexis 15951 (9th Cir.).

Damages: Punitive

     An arrestee was awarded $1 in nominal damages and $250,000 in punitive damages against a police officer in a lawsuit arising out of a shooting by an officer resulting in the death of her deaf-mute son. The lawsuit did not challenge the legality of the shooting, but claimed that officers improperly acted against the arrestee and her other surviving son following the shooting. The claims asserted included an allegedly unlawful search of the arrestee's house and false arrest. The appeals court upheld a reduction of the punitive damages to $5,000, finding that the jury's award was unconstitutionally excessive. The appeals court found that she did not present enough to create a triable issue concerning the county's alleged negligent training of the officers, and upheld a jury instruction limiting the plaintiff's claim for emotional distress damages to the distress experienced during the two days surrounding the incident. The appeals court also overturned an order denying the plaintiff attorneys' fees as a sanction for her attorney's failure to appear at a hearing, since he did not have any notice that a personal appearance was required. Mendez v. County of San Bernardino, No. 05-56118, 2008 U.S. App. Lexis 18426 (9th Cir.).

Defenses: Absolute Immunity

     Prosecutor was not entitled to absolute prosecutorial immunity when it was alleged that they failed to inform a judge who issued a warrant to detain material witnesses in a murder case that the case had been continued, resulting in the witnesses remaining incarcerated. The duty to inform the judge of this was administrative rather than prosecutorial, especially when the judge had ordered that he be kept informed of any delay in the underlying murder case. In a second case, decided together with the first one, the federal appeals court also found that keeping a witness in a case in custody after the end of the proceeding in which he was to testify was part of the prosecutor's administrative oversight duties, and had "nothing to do" with carrying out the prosecution, so that absolute immunity was not available. Odd v. Malone, No. 06-4287, 2008 U.S. App. Lexis 16466 (3rd Cir.).

Defenses: Statute of Limitations

     Most of the plaintiff's federal civil rights claims were time barred by a New Mexico three-year statute of limitations when they arose out of his arrest, detention, interrogation and release, and he filed his lawsuit more than three years after his release. The court also found that one defendant, the former U.S. Secretary of Homeland Security, was entitled to sovereign immunity on civil rights claims against him. The plaintiff also did not have standing to assert claims for the alleged monitoring of other library patrons' use of computers, which were the only claims not time barred. O'Connor v. St. John's College, No. 07-2225, 2008 U.S. App. Lexis 17730 (Unpub. 10th Cir.).

     The retention of property by police, which was seized as part of a criminal fraud investigation, did not constitute a "continuing violation" extending the applicable statute of limitations on a federal civil rights claim. The applicable statute of limitations began to run when the property was seized, and the lawsuit was time barred by a three-year statute of limitations, entitling the defendants to summary judgment. Herrin v. Dunham, No. 05-10245, 2008 U.S. Dist. Lexis 55859 (E.D. Mich.).

Disability Discrimination

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

     Two arrestees and a relative, all of whom are deaf and mute, sued a police department and a county, claiming that officers who carried out the arrest after a domestic disturbance call and the county violated their rights under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. by failing to provide them with a sign language interpreter during the arrest, at an initial appearance, and at a dispositional hearing, as well as in failing to give them access to a teletypewriter phone during their detention. The court rejected these claims, noting that the two arrestees were taken into custody not because they were disabled but because they assaulted the officers, and other individuals, or attempted to interfere with a lawful arrest. The defendants did not intentionally discriminate against the plaintiffs on the basis of their disability, and the relay operators and written communications provided were reasonable accommodations under the circumstances, permitting them a means of effective communication. Further, one of the arrestees voluntarily served as an interpreter at a hearing on the other arrestee's criminal charges. The arrest, the court also reasoned, did not constitute a "service, activity, or program" to which the protections of the ADA applied. Tucker v. Tennessee, No. 06-6208, 2008 U.S. App. Lexis 18618 (6th Cir.).

False Arrest/Imprisonment: Consular Rights

     An immigrant from Jamaica claimed that his rights under Article 36 of the Vienna Convention were violated during his arrest on drug charges when he was not advised of his right to have the Jamaican consulate informed of his arrest, and that this also violated his constitutional rights. The court ruled that both the U.S. government and the state of New Jersey had sovereign immunity on the plaintiff's claims, and that also that there are no private or individual rights or remedies under the Vienna Convention enforceable in U.S. courts by individuals who were arrested in the U.S. McPherson v. U.S.A., No. 07-6119, 2008 U.S. Dist. Lexis 63630 (Unpub. D.N.J.).

False Arrest/Imprisonment: No Warrant

     After an explosion and fire in a woman's garage, which killed her cousin, a police officer was entitled to qualified immunity for arresting her for maintaining a common nuisance. While in actuality probable caused did not exist for the arrest, as there was a lack of evidence concerning the arrestee's knowledge of drug activities allegedly engaged in by others in the garage, the circumstances gave the officer a reasonable, even if mistaken basis to believe that the arrestee was aware of what was going on there. Wheeler v. Lawson, No. 07-1791, 2008 U.S. App. Lexis 17792 (7th Cir.).

     Probable cause existed for the arrest of a former park police officer on charges of sexual abuse based on facts known to other park police officers at the time of the arrest. The plaintiff himself did not dispute the facts known to other officers at the time of his arrest, but only the "criminality" of his sexual encounter with the purported victim. The charges against him were eventually dismissed, but there was no showing of improper conduct by the arresting officers. Koester v. Lanfranchi, No. 06-5814, 2008 U.S. App. Lexis 17489 (Unpub. 2nd Cir.).

     An African-American motorist was stopped by several police vehicles that were searching for a similar car in the area, and he was stunned and handcuffed, before they decided not to fully arrest or charge him. The court declined to grant summary judgment to the officers on the basis of qualified immunity, finding that there were factual issues concerning whether an arrest was made, and whether probable cause existed for doing so, as well as about the reasonableness of the force used. Thurman v. Village of Hazel Crest, No. 06C7194, 2008 U.S.Dist. Lexis 59962 (N.D. Ill.).

False Arrest/Imprisonment: Warrant

     While an arrest warrant used to arrest an accused sex offender was issued five days before the date the clerk's signature indicated a police sergeant swore to the affidavit, this did not mean that the arrest was made under a warrant not subscribed to under oath, since the arrest occurred after the affirmation. Additionally, the arresting police sergeant reasonably relied on information from the Georgia Bureau of Investigation (GBI) that the charges against the arrestee were outstanding, that he was required to register as a sex offender, and that he was present in the county. The sergeant's verification that the arrestee had not provided his address to the sheriff was sufficient to provide probable cause, despite the fact that it later was found that the arrestee was not actually required to register. Smith v. Greenlee, No. 08-10405, 2008 U.S. App. Lexis 17564 (Unpub. 11th Cir.).

First Amendment

     Motorcycle club members could not recover damages for violation of their federal civil rights based on their removal by security from a city park on the basis of a policy of festival sponsors prohibiting the wearing of gang colors or other similar insignia, including motorcycle club insignia. Running such festivals, the court found, was not a traditional municipal function, and the association running the festival did not act under color of state law, despite the fact that the festival was held in a park in which the city retained control and provided security. The city was not involved in formulating the festival's dress code, and a police officer would not violate the constitution in enforcing the rights of a private entity, such as the festival sponsor. Villegas v. Gilroy Garlic Festival Association, No. 05-15725, 2008 U.S. App. Lexis 18801 (9th Cir.).

     U.S. Coast Guard personnel did not violate the First Amendment by establishing and enforcing a safety zone protecting a super ferry from a possible blockade by protestors. Wong v. Bush, No. 07-16799, 2008 U.S. App. Lexis 18973 (9th Cir.).

     A city's regulation, under which some individuals and entities were allegedly allowed to hold activities in the lobby and stairs inside City Hall, and the plaintiffs were not allowed to hold press conferences and/or political rallies was violative of due process and unconstitutionally vague. It did not, however, violate their First Amendment rights or their right to equal protection of law. To the extent that the regulation was vague, the court would enjoin its enforcement. Miller v. City of Cincinnati, No. 1:08cv550, 2008 U.S. Dist. Lexis 64393 (S.D. Ohio).

     "Pro-life" organizations who sought to conduct counseling outside abortion clinics failed to show that a Massachusetts statute that established a 35-foot fixed buffer zone around the driveways and entrances of such facilities violated their First Amendment rights, or their right to equal protection or due process of law. The law was justified by the state's police power and its interest in providing safe access to medical services, without any reference to content of communication. McCullen v. Coakley, No. 08-10066, 2008 U.S. Dist. Lexis 64560 (D. Mass.).

     There were genuine issues of fact as to whether union activists who protested at a "free trade" summit were improperly arrested after leaving the protest and charged with disorderly conduct in retaliation for their participation in the protest, in violation of their First Amendment rights. Battiste v. Lamberti, No. 05-22970, 2008 U.S. Dist. Lexis 61191 (S.D. Fla.).

Firearms Related: Intentional Use

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

     Police officers acted reasonably in shooting and injuring an arrestee during his arrest. The suspect had previously told a detective investigating him for alleged sexual contact with a 13-year-old girl that he would "not go back" to jail, that he had a handgun, and that he would "take care of the problem." Officers arriving at his residence reasonably believed that he was both armed and suicidal, and he fled the officers in his vehicle. When he exited the vehicle, officers saw that he had something in his hand, which was a handgun, and he refused to comply with their orders. Under these circumstances, they acted reasonably in firing at him. Ramirez v. Knoulton, No. 07-50785, 2008 U.S. App. Lexis 18334 (5th Cir.).

     A bank robber who pled guilty to discharging his gun from his car during a pursuit following a failed robbery, by doing so, essentially admitted that the officers acted reasonably in firing at him. He could not, therefore, pursue claims for excessive use of force under either federal or Louisiana state law. He was not unlawfully seized, since he also pled guilty to a charge of attempted burglary. Allowing a federal civil rights claim for either excessive use of force or unlawful seizure to go forward, under these circumstances, would improperly imply the invalidity of the plaintiff's convictions should he be awarded damages, and his underlying convictions had not been set aside. Connors v. Graves, No. 08-30163, 2008 U.S. App. Lexis 16480 (5th Cir.).

     A family's assertion that a man was unarmed and posing no threat to anyone when police officers shot and killed him during a drug raid on a housing project stated a viable claim for excessive use of force. The plaintiffs further stated a viable possible claim for supervisory liability based on their allegations that a drug unit supervisor directly participated in the raid and that a police department superintendent and the supervisor both failed to adequately train, discipline, and monitor the police officers involved in the incident. Rivera v. Sanchez-Ramos, Civil No. 05-2146, 2008 U.S. Dist. Lexis 60303 (D. P.R.).

     Officers who reasonably believed that a suspect who was inside a house after escaping federal custody was armed and dangerous, acted reasonably in shooting and killing him when he ignored their commands and threatened to kill a hostage who was screaming for help. The threat to the officers and the hostage did not end after one officer fired a non-lethal shot which injured the suspect, so that a second officer acted reasonably in firing a lethal shot that killed the suspect shortly thereafter. Pethtel v. Lemmon, Civil Action No. 5:06CV87, 2008 U.S. Dist. Lexis 58156 (N.D.W.Va.).

Frivolous Lawsuits

     While a plaintiff's lawsuit, claiming that a judge, a sheriff, and a senator were all members of a terrorist organization, stole tax money, allowed a drug trafficking ring to operate, and conspired together against allowing him to file papers at the courthouse was properly dismissed as frivolous, the appeals court held that it should have been only dismissed "without prejudice," since it was possible that the plaintiff might have been able to file a more particular complaint states some non-frivolous claims stemming from the same events described in his initial complaint, which had been described by the trial court as containing only "delusional' nonsense without any factual basis. Larrimore v. Hooks, No. 08-1327, 2008 U.S. App. Lexis 16835 (Unpub. 4th Cir.).

Governmental Liability: Policy/Custom

     A man was allegedly falsely arrested and convicted for public indecency in exposing himself at a library. The application for the arrest warrant allegedly failed to include the victim's physical description of the offender or that given by witnesses, and did not state that fingerprint analysis was incomplete and that the plaintiff had not been identified by the witnesses or victim. His conviction was overturned after fingerprints from books that the perpetrator had handled turned out to belong to another man. But the arrestee failed to show that the town should be held liable, as there was no defect in the police department's policies that caused his arrest. The mere fact that the plaintiff was falsely arrested was insufficient to show that the city failed to adequately train or supervise officers. Seri v. Town of Newton, Civil Action No. 3:03cv1301, 2008 U.S. Dist. Lexis 66039 (D. Conn.).

     A father sued police and the county for allegedly maliciously prosecuting his son for marijuana trafficking, resulting in the son's suspension from a university, and the son's suicide. A decision by a lower court ruling that the officer involved in the incident did not act in bad faith barred any claim against the officer as an individual. The father failed to establish, according to the appeals court, that there was any pattern of constitutional violations by the county, such as inadequate training. His challenge to the state university's disciplinary policies, seeking injunctive relief, was properly denied, as he failed to show any credible threat that he would face future injury from the continued application of the policy. Plinton v. County of Summit, No. 7-3985, 2008 U.S. App. Lexis 18723 (6th Cir.).

Malicious Prosecution

     Twenty years after an arrestee was convicted of assault, rape, and robbery, a medical examiner determined, from evidence in a rape kit, that he was innocent of these offenses. Because the arrestee had presented an alibi and there was a lack of physical evidence linking him to the incident, the court ruled that his claim that police officers and prosecutors pressured eyewitnesses into making false identifications, failed to produce the rape kit and other exculpatory evidence, and failed to investigate a suspect named by the victim was sufficient to present a claim that they acted in bad faith. The plaintiff could proceed with his malicious prosecution claims, and any claims concerning the rape kit were not time-barred because of the defendants' alleged deliberate deception in falsely stating that they searched for, but did not find, the rape kit. Newton v. City of New York, No. 07 Civ. 6211, 2008 U.S. Dist. Lexis 54084 (S.D.N.Y.).

Negligence: Vehicle Related

     Passengers injured when the car in which they were riding was struck by a police vehicle could not recover damages from the city and police department when the officers operating the vehicle was engaged, at the time of the accident, in an emergency operation, and their actions did not constitute reckless disregard for the safety of others. Meade v. Chestnut, Index No. 11913/02, 2007-03778, 2008 N.Y. App. Div. Lexis 6299 (A.D. 2nd Dept.).

Parking Tickets and Traffic Offenses

     A police officer had probable cause to stop a motorist and issue a citation for driving without headlights on after sundown and without wearing a seat belt. The motorist himself did not deny that he had been stopped on the date, so that the fact that the defendant officers' motion for summary judgment stated the wrong date for the incident, stating a date in which the motorist had been out of the state, did not matter. The plaintiff also did not deny driving after sundown with his headlights off and without wearing his seatbelt, which was broken. Austin v. Gaskins, No. 4:07cv420, 2008 U.S. Dist. Lexis 66153 (N.D. Fla.).

Public Protection: Crime Victims

     An employee working for a private company providing data entry services for a city department of homeless services was allegedly assaulted by a person she was registering for services as a prospective client of a homeless shelter. She sued the city, but an intermediate New York appeals court ruled that the city was entitled to summary judgment because it had not assumed any special duty to protect the employee, nor had the plaintiff shown that she had reasonably relied on any direct promise to provide her with such protection. While security officers who were usually outside the intake office were not present on the day of the incident, there was no evidence that they were ever in the intake office with the employee. Alava v. City of New York, No. 3807, 103339/04, 2008 N.Y. App. Div. Lexis 6546 (A.D. 1st Dept.).

Public Protection: Informants

     A deceased informant's widow and child claims that Oklahoma sheriffs, a U.S. Marshal and his deputies, and other defendants improperly failed to take all reasonable measures needed to ensure the informant's life. The informant died in a shootout that occurred while he was aiding a joint law enforcement task force in capturing a fugitive acquaintance. Federal civil rights claims against the defendant Marshal's deputies in their official capacities were allegedly not filed within the applicable statute of limitations and were therefore dismissed. Claims against the sheriffs were also dismissed, specifically claims based on an alleged state-created danger arising from their decision to engage in gunfire with the fugitive. Cutter v. Metro Fugitive Squad, a/k/a U.S. Marshals Metro Fugitive Task Force, No. Civ-06-1158, 2008 U.S. Dist. Lexis 66572 (W.D. Ok.).

Pursuits: Law Enforcement

     The U.S. government and a capitol police officer were sued under the Federal Tort Claims Act for negligence in attempting a traffic stop, followed by a high-speed chase of a stolen car, ending in a crash. A car crash victim and the father of a deceased victim of the crash claimed that the victims had accepted a ride in the stolen vehicle unknowingly, shortly after it had been acquired in an armed carjacking. The court held that applicable standard under the FTCA was local laws concerning vehicular negligence applying to private citizens, not to government employees, and that, under that standard, the plaintiffs had alleged sufficient facts to state a claim for negligence under District of Columbia law. Lee v. U.S.A., Civil Action No. 06-2184, 2008 U.S. Dist. Lexis 62047 (D. Ok.).

Sexual Assault

     A woman who claimed that she was sexually assaulted by a former police officer claimed that her rape was the result of the police chief's failure to adequately supervise the officer. A federal appeals court found that summary judgment for the police chief and city were proper because there was insufficient evidence that the police chief acted with deliberate indifference. While the chief knew of four prior excessive force and unlawful arrest allegations against the officer, all arising from the same incident, prior to the alleged rape, there were no accusations that the officer engaged in sexual misconduct. In the absence of a pattern of similar incidents involving sexual misconduct, the plaintiff could not establish deliberate indifference as required for a failure to supervise claim. The appeals court did, however, uphold a jury's award of $50,000 in compensatory and $250,000 in punitive damages against the former officer, and rejected arguments that the punitive damage award was excessive. Lewis v. Pugh, No. 07-40662, 2008 U.S. App. Lexis 17748 (Unpub. 5th Cir.).

Terrorism and National Security Issues

     A Malaysian Muslim student in the U.S. sought injunctive relief to remove her name from the Defendant's "No-Fly List," and also sought to challenge policies and procedures implementing that list. The plaintiff attempted to fly from San Francisco to Malaysia, but was barred from doing so when the airline found her name on the "No-Fly List" provided by the federal government. A federal employee allegedly told local police not only to prevent her from flying, but also to detain her for further questioning by the FBI. She was handcuffed and taken to a police station, and released two hours later. She was allowed to fly the next day, but only following detailed searches. A federal trial court dismissed her claims against the federal government and a federal employee, as well as those against an airline and an airline employee. A federal appeals court ruled that 49 U.S.C. Sec. 46110 stripped the trial court of jurisdiction over any claim the student might otherwise have had concerning government policies and procedures involved in the implementation of the "No-Fly List." Any claims under 42 U.S.C. Sec. 1983 were properly rejected because none of the defendants acted under color of state law. Individual capacity claims against the federal employee for violation of civil rights and state law claims, however, could go forward. Ibrahim v. Dept. of Homeland Security, No. 06-16727, 2008 U.S. App. Lexis 17572 (9th Cir.).

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     Article: "Safeguarding Undercover Employees," by Meredith Krause, 77 FBI Law Enforcement Bulletin No. 8, pg. 1 (Aug. 2008). "The selection, management, and retention of effective undercover employees pose significant challenges to law enforcement agencies. [PDF format].

     Statistics: Civil Rights Complaints in U.S. District Courts, 1990 - 2006. Examines civil rights claims based on race, age, sex, or national origin involving employment, welfare, housing, voting, or other civil rights discrimination issues. It covers civil rights claims litigated in federal district courts from 1990 to 2006. Information is presented on trends in types of civil rights cases filed in federal district courts, the basis of federal court jurisdiction, case processing time, disposition of civil rights cases, and the types of trials that occur in the federal courts. In addition, this report examines who wins in civil rights trials and the estimated median monetary amount awarded to litigants. Highlights include the following: * Civil rights filings doubled in U.S. district courts from 1990 (18,922 filings) to 1997 (43,278 filings) and subsequently stabilized until 2003. From 2003 through 2006, the number of civil rights cases filed in U.S. district courts declined by 20%. * During the period from 1990 through 2006, the percentage of civil rights cases concluded by trial declined from 8% to 3%. * From 2000 to 2006 plaintiffs won just under a third of civil rights trials on average, and the median damage awards for plaintiffs who won in civil rights trials ranged from $114,000 to $154,500. 08/08 NCJ 222989 Press release | Acrobat file (137K) | ASCII file (31K) | Spreadsheets (zip format 22K)

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

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