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Assault and Battery: Physical

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

      Officers acted reasonably in pulling driver from his car when he refused to get out as directed and placing him on the ground to handcuff him. The motorist had allegedly driven in a manner that caused his car to hit curbs and other objects. The court found that the force used was not excessive under these circumstances. Wisler v. City of Fresno, No. CV 06-1694, 2008 U.S. Dist. Lexis 50843 (E.D. Cal.).

Attorneys' Fees: For Defendant

     A plaintiff's $250 million lawsuit concerning the ownership of several pieces of personal property seized by a police department, asserting claims for theft, violation of civil rights, and violations of the Americans with Disabilities Act was frivolous and groundless. Since the plaintiff failed to present a viable case for any of his claims, the defendant was entitled to an award of $6,591 in attorneys' fees. Swiney v. State of Texas, Civil Action No. SA-06-CA-0941, 2008 U.S. Dist. Lexis 51522 (W.D. Tex.).

Defenses: Qualified Immunity

      Married couple failed to show that officers violated their clearly established rights in allegedly seizing the husband's concealed weapon permit and guns from their home, so that the officers were entitled to qualified immunity. Their citing of general caselaw on the subject of warrantless searches of homes was insufficient to defeat the officers' claim for qualified immunity. The couple also failed to present any evidence that the officers were authorized to return the property they seized, as they demanded. Snider v. Lincoln County, No. 07-6196, 2008 U.S. App. Lexis 12116 (Unpub. 10th Cir.).

False Arrest/Imprisonment: No Warrant

     Officers were entitled to qualified immunity for arresting or citing motorists for allegedly violating an ordinance prohibiting the use of cell phones without the use of a hands free device while driving. The officers had probable cause to believe that the motorists violated the ordinance, and the ordinance was not "so obviously unconstitutional" that the officers should have refused to enforce it. The ordinance was rationally justified by safety concerns. Schor v. Daley, No. 07 C 7119, 2008 U.S. Dist. Lexis 50602 (N.D. Ill.).

     While a city police officer allegedly lacked jurisdiction under Arkansas state law to arrest a motorist on an interstate highway, this did not mean that the arrest violated the Fourth Amendment, since he did have probable cause to make an arrest for reckless driving committed in his presence. Rose v. City of Mulberry, No. 07-1645, 2008 U.S. App. Lexis 14334 (8th Cir.).

     Motorist's erratic driving was sufficient to create reasonable suspicion that she was driving under the influence, entitling a deputy to conduct a stop and a standard roadside sobriety test, which she failed. There was probable cause to make an arrest, despite subsequent toxicology tests that showed that she was not actually intoxicated. Plaintiff arrestee sued defendant deputy under 42 U.S.C.S. § 1983, alleging violations of her Fourth Amendment right to be free from unreasonable searches and seizures. Amundsen v. Jones, No. 06-4310, 2008 U.S. App. Lexis 14991 (10th Cir.).

     Based on statements by two persons who said they were accomplices to the crimes for which the arrestees were taken into custody, the officers had probable cause to arrest them for sodomy and child endangerment. There was no evidence presented that the accomplice witnesses were told or otherwise induced to make untruthful statements. The mere fact that an accomplice witness was given a reward for making a statement did not, standing alone, mean that it was false. Daniels v. D'Aurizo, No. 05-CV-6058, 2008 U.S. Dist. Lexis 52179 (W.D.N.Y.).

     Man's expulsion from a town's community center and his later arrest and prosecution for trespass did not violate his Fourth or Fourteenth Amendment right or his First Amendment rights. The town had a right to limit access to its facilities, and this action did not silence or chill his speech. There was probable cause to arrest him when he returned to the center despite having been told not to return. Williams v. Town of Greenburgh, No. 06-4897, 2008 U.S. App. Lexis 15403 (2nd Cir.).

     Police chief had probable cause to arrest a woman who was injured during an altercation he was investigating. In the course of the investigation, he properly found probable cause to arrest the plaintiff for possession of a controlled substance, public intoxication, and other charges.  Cain v. Irvin, No. 07-6080, 2008 U.S. App. Lexis 15347 (Unpub. 6th Cir.).

     State troopers and investigators lacked objectively reasonable grounds for believing that they had probable cause to arrest and prosecute a man for insurance fraud and making a false incident report arising out of a dispute concerning the ownership of a cow. While a neighboring farmer made accusations about the arrestee's actions, and said that he "had heard" that the arrestee previously engaged in drowning sick cows to collect insurance money, but the farmer presented no facts to substantiate his accusations. The defendants were therefore not entitled to qualified immunity or dismissal of the arrestee's false arrest and malicious prosecution claims against them. Simons v. Fitzgerald, No. 07-0773, 2008 U.S. App. Lexis 15782 (Unpub. 2nd Cir.).

     Officers had probable cause to arrest celebrants at a Hispanic festival for drinking alcohol in public and disorderly conduct, based on undisputed evidence. Further proceedings were ordered on more specific claims by individual arrestees. Montano v. City of Chicago, No. 06-2148, 2008 U.S. App. Lexis 15826 (7th Cir.).

     Motorist's statement that he had consumed "one beer three hours ago" was sufficient to provide officers with reasonable suspicion to conduct field sobriety tests, or entitle her to qualified immunity for doing so. Qualified immunity was denied, however, on a claim that the officers used excessive force in unduly tightening the arrestee's handcuffs. Vondrak v. City of Las Cruces, No. 07-2148, 2008 U.S. App. Lexis 16543 (10th Cir.).

     Arresting officer was entitled to qualified immunity for arresting a woman for concealing her identity when she was asked for identification, and the question of qualified immunity should not have been submitted to the jury, since there were no disputed issues of fact on the issue of whether the officer had probable cause to make an arrest. Keylon v. City of Albuquerque, No. 07-2071, 2008 U.S. App. Lexis 16542 (10th Cir.).

     Man who claimed that he was improperly arrested on drug charges after he had agreed with the police department to act as a confidential informant and participate in drug buys could not pursue his federal civil rights lawsuit for damages when he failed to show that his conviction had previously been reversed. Combs v. City of Dallas, No. 06-11416, 2008 U.S. App. Lexis 15866 (Unpub. 5th Cir.).

Firearms Related: Intentional Use

     There was a genuine issue of material fact concerning whether an officer's shooting and killing of a suspect was justified, based on a statement by a witness that she saw "every bit" of the incident, and that the suspect raised his hands in the air after being tackled by the officer, and prior to the shooting. The officer was not, therefore, entitled to summary judgment.  Reed v. Rose, No. 07-3274, 2008 U.S. App. Lexis 15090 (Unpub. 6th Cir.).

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

     Officer who shot a suspect acted reasonably because he kept his left hand concealed during a standoff, and he told officers that he "had something" to make the officers do what he "could not," as well as having previously told a 911 operator that he could easily provoke an officer to shoot him. The officer who shot the plaintiff believed that he had made a threatening movement with his concealed hand.  Dague v. Dumesic, No. 07-15317, 2008 U.S. App. Lexis 15511 (Unpub. 9th Cir.).

    A federal appeals court upheld the conviction of two Border Patrol agents who shot and injured an unarmed, fleeing drug smuggler who escaped across the border into Mexico, running on foot from his stopped van, which contained 743 pounds of marijuana. The agents were also accused of engaging in a "cover-up," including a clean-up of the area of spent shells, and a failure by the agents to report the weapon-firing incident, as required by Border Patrol policies. The charges made against the agents included unlawfully discharging their weapons and concealing their offense. The appeals court rejected the agents' argument that they should have been allowed to introduce evidence of other drug trafficking conduct which the man they shot allegedly engaged in after the incident. "The district court entered a pretrial order ruling that introducing such evidence would be confusing, misleading to the jury, and highly prejudicial to the conduct of the trial and would therefore not be allowed. ..." The suspect's guilt of this alleged later crime could have become an irrelevant "mini-trial" within the trial, according to the court, diverting the attention of the jury from the details of the incident at issue. The trial court, therefore, did not engage in an abuse of discretion in barring that evidence under Fed. R. Evidence 403. The appeals court did reverse and vacate, however, convictions of the two agents for "obstruction of justice," because a Border Patrol investigation they allegedly obstructed did not constitute an "official proceeding" within the meaning of the federal statute they were charged under. The court therefore ordered resentencing of the agents on the basis of the other convictions, with the "obstruction of justice" charges excluded.  The agents were previously sentenced to 12 and 11 years and 1 month in prison respectively. U.S.A. v. Ramos, No. 06-51489, 2008 U.S. App. Lexis 15961 (5th Cir.).

     Editor's Note: The prosecution of these two Border Patrol agents has resulted in much controversy in the press and on the Internet, as well as from some public officials. See letters from U.S. Senator Dianne Feinstein (D-Cal.) to the U.S. Attorney General and to the Secretary of the U.S. Department of Homeland Security, questioning the sentences given to the two Border Patrol Agents. The office of the U.S. Attorney, (Western District of Texas) which prosecuted the case, issued a "fact sheet" reacting to the controversy, and responding to what it characterized as "myths" that have been circulated in behalf of the officers. The National Border Patrol Council of the American Federation of Government Employees (AFGE) (AFL-CIO), which represents Border Patrol employees, also issued a "rebuttal" to the statement of the U.S. Attorney's Office "fact sheet."

Firearms Related: Second Amendment and Similar Claims

     Court upholds police commissioner's revocation of New York man's pistol license based on his transport of the handgun to Nevada for a gun convention, when the license only allowed the transport of the gun to authorized hunting areas, and to small arms ranges or shooting clubs. The court rejected the gun owner's argument that his actions were authorized by the Firearms Owners' Protection Act (FOPA), 18 U.S.C. Sec. 926A, allowing the transporting of guns for any lawful purpose between two locations where the gun could lawfully be possessed and carried. The FOPA did not apply because the license did not authorize the lawfully carrying of the gun on the trip to another state. Beach v. Kelly, No. 4012, 113372/06, 2008 N.Y. App. Div. Lexis 5675 (A.D. 1st Dept.).

First Amendment

     A city ordinance regulating the passing out of handbills constituted a content-neutral restriction on the time, place, and manner of speech, but was unconstitutional because it did not serve a substantial governmental interest and was not narrowly tailored to serve such an interest, and did not provide other adequate channels of communications. Further proceedings were ordered on the question of what actual damages, if any, the plaintiff had suffered as a result of the ordinance. Horina v. City of Granite City, No. 07-1239, 07-2623, 2008 U.S. App. Lexis 10753 (Unpub. 7th Cir.).

     Police officers who arrested 16 protestors at an antiwar rally could not pursue, on appeal, their argument that they were entitled to summary judgment on the basis of qualified immunity for allegedly using force to break up the protest. Their argument was that the protestors had not shown that the officers violated their clearly established First Amendment rights, because they had not proved that the officers' actions would have "chilled" a person of "ordinary firmness" from exercising their constitutional rights. They failed, however, to raise this argument in the trial court, so it could not be considered on appeal. Buck v. City of Albuquerque, No. 07-2117, 2008 U.S. App. Lexis 16093 (10th Cir.).

     Anti-homosexual counter-protestors at homosexual street festival covered by a permit did not show that police violated their rights in asking them to move on, and then arresting them when they interfered with the festival's activities. While the permit holders would not have been able to exclude them from the festival, since the public streets were a traditional public forum, the arrestees' actions did constitute disorderly conduct.  Startzell v. City of Philadelphia, No. 07-1461, 2008 U.S. App. Lexis 14984 (3rd Cir.).

     Officers were not entitled to qualified immunity for arresting a number of vegetarian protestors after they had handed out vegetarian flyers and talked to shoppers outside a food store. The officers allegedly told them to stop handing out leaflets, and to stop talking to shoppers. One of the protestors wrote down the license plate number of a car from which an undercover officer was watching, and the officers subsequently followed the protestors' car, blocked their exit, and demanded to be given the slip of paper with the license plate number, after which they arrested the protestors in the car for disorderly conduct. The protestors had a clearly established right to peacefully protest for vegetarianism on public property. Childs v. DeKalb County, Georgia, No. 07-15028, 2008 U.S. App. Lexis 15380 (Unpub. 11th Cir.).

     Federal judge upholds Denver's plan to restrict protests around the site of the August 2008 Democratic National Convention to "protest zones," amounting to a "security perimeter," rejecting arguments by demonstrators that the public protest area should be moved closer to where delegates would be coming in and out of the convention center. "The court finds that the plaintiffs have shown that the challenged restrictions affect their ability to engage in expressive activities in traditional public fora. However, the defendants have shown that the restrictions are content-neutral, that they are narrowly tailored to serve important governmental interests, and that there are adequate alternative channels by which the plaintiffs can communicate their messages. Thus, the plaintiffs have not shown that their First Amendment rights will be infringed, nor that they are entitled to any injunctive relief. " ACLU of Colorado v. City and County of Denver, Civil Action No. 08-cv-00910, U.S. Dist. Ct. (D. Colo. August 6, 2008).

Governmental Liability: Policy/Custom

    As previously reported, in Rothgery v. Gillespie County, No. 07-440, 2008 U.S. Lexis 5057, the U.S. Supreme Court held that an arrestee's initial appearance before a magistrate or judge, when he learns the charges against him, and his liberty is subject to restriction, constitutes the beginning of an adversary judicial proceeding and triggers the arrestee's right to counsel under the Sixth Amendment. This is true whether or not a prosecutor, as distinct from a police officer, is aware of that first proceeding or involved in it. On remand from the Supreme Court, a federal appeals court vacated summary judgment for the county on the arrestee's federal civil rights lawsuit, and remanded for further proceedings. Rothgery v. Gillespie County Texas, No. 06-50267, 2008 U.S. App. Lexis 16433 (5th Cir.).

     Man whose guns and ammunition were confiscated by a deputy sheriff failed to show that these actions were carried out pursuant to an official county policy. The mere fact that there was an alleged county policy requiring a deputy to consult with a county attorney when unsure how to proceed, and to follow the attorneys' advice did not show that the alleged deprivation was caused by the policy. Mann v. Helmig, No. 07-5549, 2008 U.S. App. Lexis 15213 (Unpub. 6th Cir.).

Malicious Prosecution

     Arrestee failed to establish that the arresting officer improperly influenced a prosecutor to charge him with resisting arrest because of a complaint he had previously filed against the officer. The arrestee also failed to show that officers' searches of his garage and home were unreasonable. Peals v. Terre Haute Police Dept., No. 07-2804, 2008 U.S. App. Lexis 15875 (7th Cir.).

     A man allegedly arrested on false charges based on fabricated or "planted" evidence of cocaine could seek nominal damages based on a three day period during which he was allegedly jailed only for these "fabricated charges," but after those three days was essentially serving a 25-year sentence on an unrelated murder conviction, and therefore did not suffer any compensable injury from his continued confinement. Eloy v. Guillot, No. 07-13818, 2008 U.S. App. Lexis 14730 (Unpub. 11th Cir.).

Off-Duty/Color of Law: Assault and Battery: Physical

     Plaintiffs failed to adequately show that either the city or a former deputy chief of police were liable for the off-duty conduct of officers who they claimed physically assaulted them in a dispute over a bag of steak fajitas. The plaintiff failed to establish liability either on the basis of a purported policy or custom of inadequate disciplinary procedures, or the role of the former deputy chief of police as a supervisor at the time of the incident. Summary judgment for the city and former deputy chief was upheld.  Snyder v. City and County of San Francisco, No. 06-15838, 2008 U.S. App. Lexis 15710 (Unpub. 9th Cir.).

     Police officer who claimed that off-duty officers assaulted him failed to show that they were acting under color of law at the time of the incident. Additionally, a disinterested witness's version of the incident was more consistent with the defendants' versions of the event than with the plaintiff's version. Begley v. County of Kauai, No. 06-15801, 2008 U.S. App. Lexis 14953 (Unpub. 9th Cir.).

Public Protection: Informants

     A man who was shot in the back while serving as a confidential informant for the federal government claimed that the government acted negligently in placing him in harm's way, and failed to provide him with promised protection. The court found that the federal government's decision to arrest a suspected drug-trafficking boss at a particular time fell within the "discretionary function" exception to the waiver of sovereign immunity in the Federal Tort Claims Act. The court also found that the duty of protection that the plaintiff claimed the government owed him after taking actions (the arrest) that could disclose his identity was also a "discretionary duty." The U.S. government was therefore entitled to immunity from the lawsuit. Shuler v. U.S.A., No. 06-5275, 2008 U.S. App. Lexis 14907 (D.C. Cir.).

Search and Seizure: Home/Business

     A warrantless search of land used for hunting purposes was not a violation of the Fourth Amendment rights of a man who held a hunting license for the land, as the search was justified under the "open fields" doctrine and the "plain view" doctrine. The sheriff and other law enforcement personnel also had probable cause to believe that plants which the licensee had planted on the land (kenaf seed) in order to attract wildlife were marijuana, since they were "virtually indistinguishable" from marijuana plants. A claim for the alleged unlawful taking and destruction of the plants could not be pursued in the federal civil rights lawsuit since the plaintiff had not attempted to obtain compensation through existing adequate state law procedures. Waltman v. Payne, No. 05-60588, 2008 U.S. App. Lexis 14757 (5th Cir.).

Search and Seizure: Persons

     A public school's use of "timeouts," and the characteristics of a "timeout room" used to confine a child suffering from severe mental health and emotional problems did not constitute unreasonable seizures under the Fourth Amendment or a violation of procedural due process under the Fourteenth Amendment. Couture v. Bd. of Educ. of the Albuquerque Pub. Sch., No. 07-2133, 2008 U.S. App. Lexis 16648 (10th Cir.).

Search and Seizure: Search Warrant

     Materials which a newsletter publisher mailed to town officials adequately supported an application for a search warrant because it included a clearly pornographic picture. This was sufficient to establish probable cause for a violation of a state harassment statute and for commission of a breach of the peace. Accordingly, the search warrant was supported by probable cause, even if the officials were motivated, in seeking the warrant, to silence or deter the publisher's criticism of the police department in his newsletter. The publisher also failed to show that this attempt to silence or deter him, if that was the motive, was successful. Smolicz v. Borough/Town of Naugatuck, No. 06-5439, 2008 U.S. App. Lexis 12503 (Unpub. 2nd Cir.).

     When homeowners lived in a small house which had a security door which was difficult to breach, officers could properly be found by a jury not to have acted unreasonably in forcing the door open while executing a search warrant when they received no response within five to eight seconds of knocking on the door and announcing their police presence. The issue of whether the officers acted unreasonably was for the jury, and they could have found the officers to have acted unreasonably, but did not do so.  Howell v. Polk, No. 06-16418, 2008 U.S. App. Lexis 15037 (9th Cir.).

     While a district attorney who reviewed and approved an affidavit for a search warrant for a student's residence was only entitled to qualified, rather than absolute immunity, since she was not acting in her prosecutorial role at the time, the plaintiff student failed to show that a reasonable prosecutor should have known that the professor he was accused of defaming in an online journal was a public figure, that the statements made involved a matter of public concern, and that the statements were not made with the actual malice which was then required for the student to be subject to criminal prosecution under a Colorado state libel statute. The prosecutor was therefore entitled to qualified immunity. The lawsuit was dismissed, and the prosecutor was also awarded costs. Mink v. Knox, Civil Case No. 04-cv-00023, 2008 U.S. Dist. Lexis 46193 (D. Colo.).

Search and Seizure: Vehicle

     County police officers, a city police officer, and an FBI agent were conducting surveillance on a street when they thought they saw a burglary in progress at a house. They entered the house, and encountered two children, one of whom they tackled, pointing a gun at his head, and using mace against him, while the second child watched. Other children were in a vehicle outside the home with their mother, and officers attempted to stop it. In a lawsuit brought by the mother and her six children, a federal trial court granted the FBI agent summary judgment on claims concerning the alleged seizure of the vehicle and its occupants, since there was no evidence that he was anywhere near the vehicle at the time, and could not be held vicariously liable for the alleged actions of the other defendants concerning the vehicle, since they did not act at his direction or even with his knowledge. The appeals court denied the motion by the FBI agent, the city officer, and one of the county officers for summary judgment on claims by one child who was inside the house for excessive use of force. The court ruled that the alleged spraying of the child with mace while two other defendants allegedly held guns to his head could constitute "excessive" use of force. Couden v. Duffey, No. 03-369, 2008 U.S. Dist. Lexis 9681 (D. Del.).

•Return to the Contents menu.

     Body Armor: Ballistic Resistance of Body Armor, NIJ Standard-0101.06 (July 2008).

     Cyber-Crime: Fact Sheet: Department of Justice Efforts to Combat Cyber Crimes. U.S. Department of Justice. August 5, 2008.

     Disabilities: New Americans with Disabilities Technical Assistance CD-ROM. (July 18, 2008). A free CD-ROM with a collection of ADA materials, including regulations, architectural design standards, and technical assistance publications. Designed for easy use on laptop computers in the field, or other computers that lack high-speed Internet access. Documents are provided in a variety of formats, including .html, and text, to enable people with disabilities to gain easy access, translate materials to Braille, or use screen readers. Many documents are also in Acrobat PDF format. The CD-ROM may be ordered on-line at the indicated link or by calling the ADA Information Line at 1-800-514-0301 (voice) or 1-800-514-0383 (TTY), 24 hours every day.

     Disabilities: Police Response to People with Disabilities: Eight-Part Series. Designed for use in roll-call training, this videotape, available on-line, addresses law enforcement situations involving people who have mobility disabilities, mental illnesses, mental retardation, epilepsy or seizure disorders, speech disabilities, deafness or hard of hearing, and blindness or low vision. The eight segments range from 5-1/2 to 10-1/2 minutes in length. Dial-up. High Speed Internet (DSL/Cable).

     History: The FBI: A Centennial History, 1908-2008. This 132-page book traces the history of the FBI. While hardcover or paperback copies are available from the Government Printing Office, it is also available free of charge on-line, either as a printable .pdf or in a text-only format. Also of interest: The FBI History website, containing various materials on the FBI's past 100 years.

     Racial Profiling: Illinois Traffic Stop Statistical Study: 2007 Analysis. An analysis of traffic stops in Illinois by law enforcement during 2007, conducted by the Northwestern University Center for Public Safety under a state mandate. The statistics purport to show that African-American and Hispanic motorists are searched more often, even though drugs or other illegal items turn up more frequently among white drivers. Links to results from earlier years are also provided.

     Serial Killers: Serial Murder: Multi-Disciplinary Perspectives for Investigators. A report by the FBI's National Center for the Analysis of Violent Crime. The report contains "the collective insights of a group of experts from the law enforcement, academic, and mental health professions who took part in a symposium on serial murder. The symposium's focus was actually two-fold: to bridge the gap between fact and fiction and to build up our collective body of knowledge to generate a more effective investigative response." (July 7, 2008). [PDF] [.html format]

     Statistics: Crime Data Preliminary Crime Statistics for January-June 2007. According to the FBI’s Preliminary Semiannual Uniform Crime Report, the nation experienced a 1.8 percent decrease in violent crime and a 2.6 percent decline in property crime during the first 6 months of 2007 compared with the same period in 2006. The report is based on information from law enforcement organizations that contributed 3 to 6 comparable months of data to the FBI during January through June of both 2006 and 2007. A total of 11,673 agencies met the criteria for inclusion in the current report.

     Terrorism and National Security Issues: U.S. Department of Justice, Office of the Inspector General, Report to Congress on Implementation of Sec. 1001 of the USA Patriot Act, as required by Sec. 1001(3) of Public Law 107-56. August 2008. (Concerns claims of civil rights or civil liberties violations allegedly committed by DOJ employees).

     Terrorism and National Security Issues: "Terrorism: Major Cases Past and Present," a page on the FBI website with links to information about terrorism cases the FBI has been involved in from the 1920s to the present.

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

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