April, 2000 web edition

Assertion that officer stuck his hand out of his vehicle and that this caused the fall of an intoxicated bicyclist on the street stated a claim for excessive use of force.

            After a bicyclist was found lying in the driveway at a gas station, a police officer on the scene concluded that he was highly intoxicated. The bicyclist when revived, however, indicated that he could get home by himself. The officer told him to ride his bike on the sidewalk because he did not have lights. The officer decided to follow the bicyclist to make sure he would be safe.

            The bicyclist insisted on riding his bike on the street, ignoring the officer's commands to get on the sidewalk. The officer pulled in front of the bicyclist and reached out his arm, which struck the bicyclist in the chest, causing him to fall over his handlebars to the ground. This fall caused a variety of injuries.

            The injured bicyclist filed a federal civil rights lawsuit against the officer and the city. The trial court found that the complaint stated a claim for use of excessive force under the Fourth Amendment. At the same time, the court found insufficient evidence of a municipal policy or custom to present an arguable case for municipal liability. Hullett v. Smiedendorg, 52 F. Supp. 2d 817 (W.D. Mich. 1999).

DEFENSES: QUALIFIED (GOOD-FAITH) IMMUNITY

Officer had probable cause to arrest a man for battery based on the statements of the man he allegedly battered; no general obligation, once probable cause exists, to conduct a thorough investigation in hopes of uncovering potentially exculpatory evidence; officer was therefore entitled to qualified immunity.

            A middle-age couple had an ongoing dispute with an elderly couple who occupied an apartment directly above theirs, based on allegations of excessive noise from the apartment above. A physical confrontation occurred, during which, depending on whose version is true, the elderly couple shoved the husband from the downstairs couple, or else the husband "kneed" the elderly man in the upper thigh, causing a bruise.

            A police detective investigated the incident and arrested the husband on a charge of battery. He was later acquitted of this charge, and filed a federal civil rights lawsuit claiming that he had been arrested without probable cause. A jury awarded the plaintiff $5,000 in damages against the detective.

            Reversing, a federal appeals court found that the detective was entitled to qualified immunity. "As long as a reasonably credible witness or victim informs the police that someone has committed, or is committing, a crime, the officers have probable cause to place the alleged culprit under arrest, and their actions will be cloaked with qualified immunity if the arrestee is later found innocent." Further, "this court has emphasized that once probable cause has been established, officials have 'no constitutional obligation to conduct any further investigation in the hopes of uncovering potentially exculpatory evidence.'"

            In this case, the elderly man's statement to the detective that he had been struck by a man 37 years his junior, the bruise he displayed, and his account of the escalating conflict with the other tenants together "provided amble grounds" for the detective to believe that a battery had been committed. While the plaintiff argued that further investigation would have revealed that the elderly man's charges were "retaliatory" for his own earlier action in filing a police report over the incident, the court noted that "many" defendants "protest their innocence, and it is not the responsibility of law enforcement officials to test such claims once probable cause has been established. Consequently, 'the law does not require that a police officer conduct an incredibly detailed investigation at the probable cause stage.'"

            The appeals court rejected the argument that officers should have interviewed additional witnesses. "Good police practice may require interviews, but the Constitution does not require police to follow the best recommended practices." Spiegel v. Cortese, No. 97-4113, 196 F.3d 717 (7th Cir. 1999).

     Text: <http://www.kentlaw.edu/7circuit/>.

Federal appeals court rules that the random suspicionless use of drug-sniffing dogs to sniff students in a high school was an unreasonable search, particularly when there was no "drug crisis" or "drug problem" at the school; deputy sheriff, however, was entitled to qualified immunity from liability for civil rights violations because the law on the subject was not clearly established at the time of the sniff.

            A high school principal ordered a classroom of students to exit the room. As they did so, they passed a deputy sheriff and a drug-sniffing dog. The dog alerted to one of the student.

            No drugs were found. Another student filed a federal civil rights lawsuit against the deputy sheriff and sheriff's department, as well as against a variety of school officials, claiming that the dog sniff violated his Fourth Amendment right to be free from unreasonable searches and seizures.

            A federal appeals court ruled that the search had indeed been unreasonable but that the individual defendants were entitled to qualified immunity from liability because the law on the subject had not previously been clearly established.

            The appeals court found that the immediate case was different from the facts found in United States v. Jacobsen, 466 U.S. 109 (1984), which held that using a dog to sniff some unattended luggage was not a search.  The appeals court reasoned that the "level of intrusiveness is greater when the dog it permitted to sniff a person than when a dog sniffs unattended luggage."

            The court found that "close proximity sniffing of the person is offensive whether the sniffer be canine or human," that it constituted an infringement on the reasonable expectation of privacy of the student, and that it therefore constituted a search. The "body and its odors are highly personal," the court said, and the dog sniff was "highly intrusive." The court noted that dogs often engender irrational fear, and the fact that the "search was sudden and unannounced added to its potentially distressing, and thus invasive, character."

            The court rejected the argument that the search was nevertheless reasonable. It noted that the record did not show that there was any drug crisis or even a drug problem at the high school at the time of the sniff. In the absence of such a problem or crisis, "the government's important interest in deterring student drug use would not have been placed in jeopardy by a requirement of individualized suspicion." The court therefore concluded that the "random and suspicionless dog sniff search" was "unreasonable in the circumstances." B.C. v. Plumas Unified School District, No. 97-17287, 192 F.3d 1260 (9th Cir. 1999). Full text: <http://www.ce9.uscourts.gov/opinions>. [Cross-reference: Civil Rights].

EDITOR'S NOTE: Two other federal appeals courts have addressed this issue, reaching different results. In Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir. 1982), the court found that the "intensive smelling of people, even if done by dogs, is indecent and demeaning," holding that it was a search. In Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980), on the other hand, the court held that a dog sniff of students was not a search.

Judgment in first jury trial of $2 against an arresting officer, rather than judgment in second jury trial of $2,150 against the city (and $67,000 in attorneys' fees) would be enforced when trial court never explicitly granted a motion for a new trial; plaintiffs were arrested for violating a city ordinance against residential picketing

            Police officers in North Dakota arrested two people for unlawful picketing of an individual's dwelling in violation of a city ordinance. They were picketing in the vicinity of the dwelling of a person alleged to be a spokesperson for an organization that provides abortion services. Charges were later dropped on the basis of a finding that the ordinance in question, while constitutional on its face, was unconstitutional as applied to the arrestees.

            The arrestees then sued the arresting officers and the city for violation of their federal civil rights. Claims against the city were dismissed, and the trial ended with an award of one dollar ($1) for each plaintiff against one of the arresting officers.

            The court then concluded that some of its instructions to the jury may have been misleading and asked the parties to move for a new trial. In further proceedings, the trial court determined that the home picketing ordinance was unconstitutional as a content-based restriction on free speech. It therefore granted summary judgment on liability against the city, and dismissed the arresting officer as a defendant. A second jury trial then occurred in which the jury awarded one plaintiff $1,000 and the other plaintiff $1,150. The trial court then awarded $67,000 in attorneys' fees and costs to the plaintiffs.

            Reversing, a federal appeals court found that "much of the work of the trial court and counsel for both parties is for naught," because the trial court never granted any motion for a new trial, or ordered one. Accordingly, the appeals court ordered that the judgment in the first jury trial, for $2 against the officer, be the only judgment enforced. It also ordered further proceedings to determine the proper amount of attorneys' fees to be awarded under the circumstances. Copper v. City of Fargo, No. 98-2144, 98-2416, 184 F.3d 994 (8th Cir. 1999).

     Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Attorneys' Fees].

Arrest of homeowner for interfering with firefighters was supported by probable cause; his removal from his own property, while a "seizure" of the property, was reasonable.

            After a homeowner's efforts to put out a fire in the house were unsuccessful, the fire department was summoned to the scene. A deputy sheriff who arrived on the scene was informed by the fire chief that he was having a problem with the homeowner interfering with the firefighting efforts, and that he had even grabbed one of the hoses from the firefighters. The chief asked that the homeowner be prevented from further interference with the firefighting, and also be stopped from going near the fire and posing a danger to himself and others.

            The deputy told the homeowner that he had to leave. The homeowner, saying "this is my property," refused to do so. After being threatened with arrest, he left, but returned a half hour later. The deputy then approached him, forced him to the ground, and handcuffed him, charging him with obstructing firefighters. He later filed a federal civil rights lawsuit asserting that his arrest and removal from his property violated his constitutional rights. A federal trial court was not inclined to agree.

            Based on the "undisputed" actions of the homeowner, the deputy sheriff had "probable cause to believe" that he was guilty of obstructing he efforts of firefighters, and therefore had probable cause to arrest him. Additionally, while an individual's removal from his own property, "even for a brief period," is a "seizure of property," in this case it was a reasonable one. "Where there is probable cause to believe that a party is violating the law against obstructing the efforts of firefighters, the Court finds that a person's interest in remaining on their property is outweighed by the interest in enforcing the law and the interest, which the law embodies, in enabling firefighters to perform their difficult and dangerous task without interference." Greene v. David, 41 F. Supp. 2d 167 (N.D.N.Y. 1999).

FALSE ARREST/IMPRISONMENT: WRONGFUL DETENTION

Man who pled "no contest" to manslaughter charges and was sentenced to time served after his murder conviction was overturned because of the withholding of evidence by police could not recover damages for his period of incarceration; trial judge properly set aside first jury's $1.5 million award

            A Massachusetts man was convicted of first degree murder and sentenced to life in prison without the possibility of parole. Five years later, this conviction was overturned, based on the investigating officers' failure to disclose an audiotaped interview with the prosecution's chief witness. A new trial was ordered, and the man was released on bail pending the trial.

            Rather than go through another murder trial, he pled no contest to a charge of manslaughter and was convicted of that crime. He was sentenced to time already served and five years probation. He then sued the city and two police officers involved in the investigation of the case, seeking damages arising from the murder charge and conviction. His federal civil rights complaint was primarily focused on obtaining damages for his imprisonment.

            A jury awarded $1.5 million in compensatory damages. The trial court overturned this award under Heck v. Humphrey, 512 U.S. 477 (1994) (no federal civil rights liability if a judgment in the plaintiff's favor would imply the invalidity of his unimpugned conviction or sentence). The court reasoned that the time the defendant had served was served pursuant to his undisturbed conviction for manslaughter.

            At a second trial on damages, evidence of any injury arising from his incarceration was excluded, but evidence of other damages associated with his murder trial and conviction was permitted. The second jury awarded $6,000 in damages, which included $5,000 in compensatory damages and $1,000 in punitive damages.

           A federal appeals court rejected a plea by the plaintiff to reinstate the first jury's award. It held that evidence of his manslaughter conviction and sentence to time already served, which were imposed following the reversal of his murder conviction, were admissible as evidence in the trial. It held that Federal Rule of Civil Procedure 410, while barring evidence of a "no contest" ("nolo contender") plea, which is not to be treated as an admission by the party, does not bar evidence of a "conviction pursuant" to a no contest plea.

            Further, the appeals court held that once evidence of the valid manslaughter conviction and sentence were admitted, any claim for incarceration-based damages were barred. "The policies favoring the finality of valid criminal convictions and sentences and protecting them from collateral attack through civil suit dictate against allowing Sec. 1983 liability for damages for imprisonment here."

            The court found that it was proper, however, for the jury in the second trial to have awarded "substantial compensatory damages for injuries associated with his murder trial and conviction, and to have awarded substantial punitive damages based on the nature of the defendants' actions," so long as no damages were awarded for the incarceration itself. At the second trial, evidence of such damages focused on $5,000 in attorneys fees the plaintiff paid for representation at his murder trial, which was the amount of compensatory damages awarded. Olsen v. Correiro, #96-1425, 189 F.3d 52 (1st Cir. 1999).

     Text: <http://www.law.emory.edu/1circuit>.

State troopers were not liable for continuing to hold, for a day and a half, arrestee taken into custody pursuant to a valid arrest warrant, after they gradually began to suspect he was not the person actually sought; arrest warrant was issued based on original suspect having assumed another man's identity.

            A motorist stopped for driving under the influence of alcohol had no identification to present and gave the arresting officer another man's address, name, date or birth, and social security number. When he later failed to appear in court to respond to the charge, a warrant was issued in the other man's name. This other man was subsequently arrested pursuant to the warrant.

            State troopers began looking into his protested innocence while holding him in custody, observing various discrepancies between his description and the description of the DUI arrestee in the original report, including a tattoo possessed by the original arrestee and a difference in the spelling of the mother's maiden name. There were also variances in height, weight, hair and eye color.

            The troopers began to suspect that they might have the wrong man, and attempted to arrange the release of the arrestee on bail. The arrestee declined to sign an agreement to appear voluntarily for arraignment if released then, fearing that he might somehow inculpate himself by signing the paper.

            The arrestee had been taken into custody on a Saturday night. On Monday, he was taken to the first available court session, arraigned, and released. Charges against him were later dismissed and he filed a federal civil rights lawsuit seeking damages for the day and a half he had spent in custody.

            The trial court denied the defendant troopers' motion for summary judgment. A federal appeals court reversed. It noted that "a warrant is a judicial order authorizing an arrest, and, as long as the police are acting in compliance with that order, it is surpassingly difficult to fathom why the proper method of challenging the ensuing detainment should be something other than a prompt hearing before a magistrate."

            A rule that would hold police responsible for not releasing an individual held under a "facially valid warrant that bears his name as evidence accumulates pointing to others" would "create an incentive for police officers not to investigate claims of innocence at all, for fear of incurring liability should they uncover information that would cast doubt upon the putative offender's guilt."

            Police stations, the court reasoned, should not be turned into "tribunals for making preliminary determinations of guilt or innocence." This does not mean that a police officer may ignore evidence of innocence, but should inform the prosecutor or a judicial officer of known exculpatory information.

            "Far from eliminating errors, imposing liability on police officers for honest mistakes of this kind--especially in cases where, from all indications, the officers acted with reason dispatch" not "only would have a detrimental impact on effective law enforcement, but also would threaten the separation of functions that our constitutional system has deployed as a means of minimizing the occurrence (and mitigating the adverse effects) of those very errors." Brady v. Dill, #98-2293, 187 F.3d 104 (1st Cir. 1999).

     Text: <http://www.law.emory.edu/1circuit>. Cross-reference: False Arrest/Imprisonment: Warrant].

Trial court improperly granted summary judgment to off-duty police officer/security guard who shot and killed fleeing shoplifting suspect; there was a genuine issue of material fact as to whether suspect's car was menacing the officer at the time she fired.

            Two shoplifting suspects were followed to their vehicle in a shopping mall parking lot by several security personnel, including off-duty police officers in uniform who were patrolling the mall. One of the suspects succeeded in entering his car, and one of the officers shot and killed him when the car allegedly came towards the officer, ignoring demands that he stop.

            The decedent's estate argued, to the contrary, that the officer never stood in front of the car with the suspect driving towards her, but rather that the officer shot the suspect from the side as he drove away. It argued also, in the alternative, that even if the car was, at some point, coming towards the officer, she was not in any danger "and did not fire until she was safely out of the way and standing along side the car."

            The lawsuit filed by the decedent's estate named the shooting off-duty police officer/security guard, the shopping mall owners, and the store, alleging negligence, as well as asserting federal civil rights claims against the officer and the town which employed her.

            The trial court granted summary judgment for the defendants. A federal appeals court reversed, finding that there were genuine issues of material fact from which a jury could have properly found that the plaintiff was entitled to an award of damages.

            The appeals court noted that, for purposes of summary judgment, the trial court should have read the evidence in the light "most favorable to the estate," but failed to rely on the estate's version of events. Instead, it found that the decedent "recklessly" drove in reverse at a "high rate of speed" with people "in close proximity." While a "jury may ultimately accept this version of the facts," it "also may not."

            While the security officers all testified that the shooting officer was in front of the car, the fatal shot "indisputably came through the driver's side window," which did not preclude a jury from finding that the officer fired from somewhere along the side of the vehicle.

          The appeals court did, however, uphold summary judgment in favor of the defendant store, finding no merit to the claims that it was liable for negligence in the incident. Abraham v. Raso, #98-5405, 183 F.3d 279 (3rd Cir. 1999).

     Text: <http://www.law.vill.edu/Fed- Ct/ca03.html>. [Cross-reference: Off-Duty Police].

Officer was not entitled to qualified immunity for shooting suspect in the neck when there was a factual dispute as to whether the shot was fired accidentally or intentionally.

            A police officer was not entitled to qualified immunity from liability when there was a factual dispute as to whether his shooting of a suspect in the neck was accidental, as he contended, or intentional, as the suspect's estate contended in its lawsuit. The officer argued that he was in the process of handcuffing the suspect, who struggled with him and moved his left arm in a manner which the officer believed meant he was reaching for a weapon. According to the officer, the suspect then "quickly and violently jerked his right shoulder upwards, causing my weapon to discharge."

            Opposing the officer's version of the events, however, were autopsy reports showing no signs of stippling or gunpowder residue, and "no evidence that this would constitutes a contact, near contact or intermediary range wound" as would have presumably been the case had the case if the incident happened as the officer described. Because of this factual dispute, the court could not decide whether or not a constitutional violation occurred, which would require, among other things, that the officer intentionally shot the decedent, since there can be no federal civil rights liability for negligence.

            The trial court did, however, dispose of claims against supervisory personnel based solely on alleged failure to investigate. Even assuming that supervisory liability could be established in this manner, the plaintiff did not set forth any evidence to show such a failure. Anthony v. Vaccaro, 43 F. Supp. 2d 843 (N.D. Ohio 1999). [Cross-reference: Firearms Related: Accidental Use].

            An Alabama police officer speeding to an address given to him by his dispatcher did not turn on his siren or blue flashing lights. As his vehicle entered an intersection, it was struck by another car, which caused him to collide with a third vehicle.

            The injured driver and passengers of the third vehicle sued the officer and city. An Alabama state trial court granted the defendants summary judgment on the basis of immunity provided under Ala. Code Sec. 6-5-338.

            The Alabama Supreme Court reversed. It noted that the statute in question gave officers immunity from liability arising out of their conduct in the performance of any discretionary function within the scope of their employment. Once an officer exceeds the speed limit, state law makes it mandatory that he comply with the state's audible and visual signal requirements. Such compliance is mandatory, not discretionary, so the defendants were not entitled to any immunity in this case. Williams v. Crook, 741 So. 2d 1074 (Ala. 1999).

California court rules that it is improper to strike gays and lesbians from a prospective jury on the basis of their sexual orientation.

            A number of prior court decisions have provided that it is improper to use peremptory challenges to strike prospective jurors on the basis of race, gender, or religion. In a recent decision, an intermediate California appeals court has extended this principal to discrimination against gays and lesbians in jury selection. While the decision came in a case involving a criminal prosecution, the reasoning would appear to apply in civil cases also. People v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339 (2000).

     Text: <http://www.courtinfo.ca.gov/opinions/>

California statute imposed mandatory duty on police to investigate reports of child abuse, and to file reports with child protective agencies when the investigation leads to reasonable suspicion of such abuse; complete failure to investigate a report of child abuse stated a claim for "negligence per se."

           A three-year-old boy lived with his mother and her live-in boyfriend. The boy's father became concerned when he observed severe facial bruising on the boy and failed to get a satisfactory explanation. The father later received a phone call from a neighbor of the mother, advising him that the couple was using drugs and the live-in boyfriend was physically beating and abusing the boy. The father then called the police department and requested an investigation.

            Despite this call, no investigation was conducted and no internal report or cross-report to other governmental agencies was prepared concerning the possible abuse of the boy. Six weeks later, the boy was subjected to a "severe, violent and unlawful" beating by the live-in boyfriend, which caused him serious physical and mental injuries, and resulted in total and permanent disability.

            A lawsuit was brought against the city and the officer who took the call, alleging negligence in failing to investigate or report a reasonable suspicion of child abuse as required by California Penal Code section 11164.

            An intermediate California appeals court ruled that this lawsuit stated a claim for negligence per se. Four elements are required for such a claim: 1. the defendant violated a statute or regulation, 2) the violation caused the plaintiff's injury, 3) the injury resulted from the kind of occurrence the statute or regulation was designed to prevent, and 4) the plaintiff was a member of the class of persons the statute or regulation was intended to protect. The last two elements, the court stated, were easily met since "it is beyond dispute" that mental and physical abuse of a child was "exactly the type of injury the California Legislature intended to prevent in enacting the Child Abuse and Neglect Reporting Act."

            This statute, the court found, imposes two mandatory duties on a police officer who receives an account of child abuse: investigation, and taking "further action when an objectively reasonable person in the same situation would suspect child abuse." As part of this obligation, the officer must immediately "or as soon as practically possible by telephone" report suspected child abuse to a child protective agency, and prepare and send a written report within 36 hours of receiving the information.            In this case, the failure to investigate "was clearly a breach of duty." Whether a reasonable officer would then, based on an investigation suspect child abuse and make a report "is a question of fact to be determined at trial." The court also said that the issue of whether the officer's failure to act caused the injuries to the boy was a factual issue to be determined at trial. Alejo v. City of Alhambra, No. B130088, 89 Cal. Rtr. 2d 768 (1999).

     Text: <http://www.courtinfo.ca.gov/opinions/>

           EDITOR'S NOTE: See also S.S. v. McMullen, #98-1732, 186 F.3d 1066 (8th Cir. 1999), full Text: <http://www.wulaw.wustl.edu/8th.cir>, holding that an eight-year-old child, placed back in the custody of her father by state employees despite alleged knowledge that the father associated with a convicted pedophile stated a claim under the "state-created danger" exception to the general rule that the government has no duty to provide protection to anyone from third-party violence.

Lawsuit claiming that sheriff directed deputies to conduct warrantless entry into apartment to serve eviction notice on tenant stated claim for violation of Fourth Amendment rights; appeals court rejects argument that both a search and a seizure are required for a Fourth Amendment violation; sheriff's personal direction was a sufficient basis for supervisory liability.

            A sheriff allegedly told three of deputies to take whatever steps were necessary to serve an eviction notice on two tenants in an apartment. Two deputies went to the apartment on a particular day, and found only one of the two tenants at home. Then, despite not having a search warrant or consent to enter, they searched the apartment for the second tenant. They did not find him.

            Two days later, two of the deputies returned and similarly searched the apartment for the second tenant. One of these two deputies had not been involved in the first search. The tenants later sued the sheriff and his deputies, asserting that these warrantless searches of their home violated their Fourth Amendment rights.

            Overturning the dismissal of this claim against the sheriff, a federal appeals court found that the complaint sufficiently alleged that he had personally directed the search "and that is enough to affix liability to a supervisor." The appeals court also rejected the reasoning of the trial court that there was no valid Fourth Amendment claim on the ground that the amendment is not violated "unless there is both a search and a seizure," and there was no seizure since the second tenant was not found.

            "There is no basis in the law for such a ruling. If officers without a warrant or other authority ransack someone's house to find something that isn't there, and as a result seize nothing, there is still a violation of the Fourth Amendment for which damages can be obtained."

            The appeals court did hold, however, that there was no basis to hold liable for the first search the deputy who only participated in the second search. A bare allegation that he was involved in a "conspiracy" with the other defendants was an insufficient basis for such liability. Ryan v. Mary Immaculate Queen Center, No. 98-3849, 188 F.3d 857 (7th Cir. 1999).

     Text: <http://www.kentlaw.edu/7circuit/>. [Administrative Liability: Supervision].

Arrestee stated a claim for unreasonable search when alleging that police officers strip searched him in a public area of a store, addressed him with racial slurs, and taunted him about the size of his penis.

           A man went to a grocery store to buy a beer on his way home from work. He went to the store's basement to drink the beer, together with another man. He soon heard the owner of the store yell "thief, thief," and saw him running down the basement stairs pursued by a man with a gun wearing a ski mask. This man was a police officer who was one of several executing a search warrant on the store for marijuana.

            Upon arriving in the basement, the officer and a second masked individual (also a police officer) detained everyone present by pointing their guns, directing them to lay down on their stomachs and handcuffing them. No weapons were found during a pat down search. The man who had purchased the beer was then taken upstairs and ordered to remove all of his clothing, along with the other man who had been in the basement with him.

            This strip search took place in the main area of the store, rather than in its restroom or some other non-public area. The officers allegedly taunted the two men (both of them black) about the size of their penises and addressed them by racial epithets. A full body cavity search revealed no contraband, but a small bag of marijuana was found in the man's pants pocket. He later pled guilty to a drug charge.

           He sued the officers, claiming false arrest and violation of his Fourth Amendment rights. The court found that the guilty plea on the drug offense barred any false arrest claim. At the same time, the court ruled that the description of the manner and place of the strip search in the complaint stated a claim for an unreasonable search and seizure.

            The plaintiff argued that strip-searching him in a public place, rather than waiting until he was removed to the police station, where he could be searched in privacy, was unreasonable, especially as he had been frisked and found clean of weapons and, once handcuffed, was in no position to dispose of any contraband.

           The court ruled that, based on the evidence available, a reasonable juror "could easily find" that the officers "acted unreasonably in subjecting plaintiff to the added humiliation of being denuded, exposed and taunted in a public place." The officers, however, asserted that the area in which the plaintiff was searched was shielded from public view, a factual dispute to be decided by a jury. The trial court also declined to grant the defendant officers' motion for qualified immunity.

            The court also declined to dismiss a claim against the city based on an alleged policy of strip searching everyone found at a drug location. Campbell v. Fernandez, 54 F. Supp. 2d 195 (S.D.N.Y. 1999).

Federal government was not liable for officer's alleged rape of female motorist when officer's actions were outside of the scope of his employment; federal appeals court rejects "apparent authority" as a basis for liability under the Federal Tort Claims Act.

            A lawsuit brought against the U.S. government under the Federal Tort Claims Act (FTCA) asserted that an tribal officer picked up a motorist after her car became stuck in a snowbank near a reservation, and that he then raped her. The officer was then off-duty, off the reservation, and in plain clothes, but driving an official government vehicle.

            A federal appeals court has held that "apparent authority" is not a permissible basis for governmental liability under the FTCA, rejecting the argument that it was sufficient that the defendant officer have indicated that he was a law enforcement officer. Rather, the FTCA provides for governmental liability when the federal employee injuries someone in the course of actions done "within the scope of his office or employment."

            The alleged rape, the court concluded, was not within the scope of the officer's employment. The connection between the officer's government employment and the sexual assault "was simply too remote and tenuous to be foreseeable to his employer." It was "conduct so unusual or startling that it would be unfair to include the loss caused by the injury among the costs of the employer's business." The appeals court therefore upheld a trial court judgment finding the government not liable under the FTCA. Primeaux v. U.S., No. 97-2691, 181 F.3d 876 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross- reference: Federal Tort Claims Act].

$625,000 settlement in lawsuit claiming that Chicago police officer drove woman to his apartment after arresting her and then raped her.

            A Chicago police officer allegedly stopped a 19=year-old woman at night as she left a midnight movie with two male friends. He arrested her when she could not produce a valid id showing that she was not subject to a city curfew for minors. In a lawsuit she later filed against the city, the arrestee claimed that the officer took her to the police station, where he ordered her to stay in the squad car while he went and signed out.

           He then allegedly put her in his own car and drove her to his apartment. The officer later stated that the two had consensual sex there, but the arrestee asserted that the officer raped her. No criminal charges were filed over the incident, but the police department's internal affairs department recommended that the officer be fired. The officer resigned before any action could be taken on that recommendation.

            Attorneys for the plaintiff further claimed that the officer in question had been the subject over 20 citizen complaints in his two years on the force, involving "threatening, aggressive and sometimes violent behavior." Nearly all of the complaints, they further argued, were filed by women.

            A City Council committee approved a $625,000 settlement in the case, to be paid by the city. Doe v. City of Chicago, Circuit Court, Cook County, Ill, reported in The Chicago Tribune, Section 2, page 2 (Feb. 11, 2000).

Abraham v. Raso, 183 F.3d 279 (3rd Cir. 1999).[57]
Alejo v. City of Alhambra, No. B130088, 89 Cal. Rtr. 2d 768 (1999).[59-60]
Anthony v. Vaccaro, 43 F. Supp. 2d 843 (N.D. Ohio 1999).[57-58]
B.C. v. Plumas Unified School District, No. 97-17287, 192 F.3d 1260 (9th Cir. 1999).[52-53]
Brady v. Dill, #98-2293, 187 F.3d 104 (1st Cir. 1999).[55-56]
Campbell v. Fernandez, 54 F. Supp. 2d 195 (S.D.N.Y. 1999).[61-62]
Copper v. City of Fargo, No. 98-2144, 98-2416, 184 F.3d 994 (8th Cir. 1999..[53-54]
Doe v. City of Chicago, Circuit Court, Cook County, Ill, reported in The Chicago
                Tribune, Section 2, page 2 (Feb. 11, 2000).[62-63]
Greene v. David, 41 F. Supp. 2d 167 (N.D.N.Y. 1999).[54]
Hullett v. Smiedendorg, 52 F. Supp. 2d 817 (W.D. Mich. 1999).[51]
Olsen v. Correiro, #96-1425, 189 F.3d 52 (1st Cir. 1999).[55]
People v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339 (2000).[58-59]
Primeaux v. U.S., No. 97-2691, 181 F.3d 876 (8th Cir. 1999).[62]
Ryan v. Mary Immaculate Queen Center, No. 98-3849, 188 F.3d 857 (7th Cir. 1999).[60-61]
S.S. v. McMullen, #98-1732, 186 F.3d 1066 (8th Cir. 1999).[60]
Spiegel v. Cortese, No. 97-4113, 196 F.3d 717 (7th Cir. 1999).[51-52]
Williams v. Crook, 741 So. 2d 1074 (Ala. 1999).[58]