February, 2000 web edition

Publishing company was not entitled to an injunction against statute placing restrictions on the release of and use of information concerning the names and addresses of arrestees, which provided that such addresses could not be used for the sale of any products or services; statute on its face did not restrict commercial speech, but merely regulated the release of information in the hands of law enforcement.

            A publishing company was involved in selling the names and addresses of recently arrested individuals to clients who included attorneys, insurance companies, drug and alcohol counselors, and driving schools. It had previously received this information from the Los Angeles Police Department, as well as other California state and local law enforcement agencies, until the state amended a state statute to limit the use of such information concerning both arrestees and crime victims. The new state statute requires that someone seeking such information declare that the request is being made for one of five designated purposes, and that the address will not be used directly or indirectly to sell a product or service. The statute allows access to the information to journalists, scholars and private investigators.

            A federal appeals court ruled that the statute unconstitutionally restricts commercial speech, in violation of the First Amendment, upholding an injunction against the statute's enforcement. Reversing, the U.S. Supreme Court ruled that the publishing company was not entitled to prevail on a "facial" challenge to the state statute (without showing specifically how their own particular rights were infringed by the statute as applied).

            On its face, the Court ruled, the statute in question did not abridge anyone's right to engage in speech, but rather was merely a law "regulating access" to information in the government's hands. Indeed, the Court noted, the state of California would not violate the First Amendment if it decided not to give out arrestee information at all. The company could not assert claims based upon the statute's alleged effect on parties not before the Court, such as its customers. Los Angeles Police Dept. v. United Reporting Publishing Corp., #98-678, 120 S. Ct. 483 (1999).

     Text: <http://www.law.vill.edu/Fed-Ct/sct.html>. [Cross-references: First Amendment; Freedom of Information; Search and Seizure: Media Access].

Mere conclusion in complaint that officials inadequately supervised officers and prosecutors was insufficient to state a civil rights claim, absent any concrete evidence of this; alleged town policy of deliberate indifference to the rights of the public could not be based on a single incident.

            A Massachusetts man was arrested and prosecuted for disorderly conduct at a Presidential campaign rally. He sued the town's police chief and town manager, claiming that both of them were aware of his allegedly wrongful arrest and prosecution, and that both of them were liable for failure to adequately supervise officers and/or prosecutors.  He also claimed that the town was liable for maintaining policies which demonstrated deliberate indifference to his rights.             Granting summary judgment to the individual defendants and to the town, the trial court noted that the plaintiff "has provided no evidence" to support his "conclusory allegations" of inadequate supervision and deliberately indifferent policies. "Brash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient."

            Further, in terms of municipal liability, the plaintiff failed to provide evidence of any prior similar incidents. An unlawful policy or custom "cannot be established on the basis of a single event alone." Altman v. Kelly, 36 F. Supp. 2d 433 (D. Mass. 1999). [Cross-reference: Governmental Liability: Policy/Custom].

Police officers did not violate dog owner's property rights when they shot and killed her pit bull, which had just bit a woman and was coming towards them and ambulance attendants in a menacing manner; city did not act with deliberate indifference to plaintiff's rights by limiting training to situations involving mad dogs with rabies.

            A woman in Detroit was bitten by pit bull terrier who was running loose in her neighborhood in Detroit. Police officers came to the scene and the woman identified the dog to them. When an ambulance arrived, the pit bull allegedly jumped to its feet and assumed an aggressive stance.

            The dog allegedly ran straight towards the officers and ambulance attendants, and the officers shot and killed it. The owner of the dog sued the city and two officers involved in the incident, claiming that she was improperly deprived of her property (the dog) without due process of law, since the officers "failed to provide her with notice and an opportunity to be heard prior to depriving her of" the pit bull.

            The defendant city argued that the officers acted in accordance with a state law allowing a law enforcement officer to kill a dog which the officer sees in the act of attacking persons or livestock. The plaintiff argued that the city had inadequately trained the officers as to how to deal with dogs in such situations, and therefore had acted with deliberate indifference towards her property rights.

            Rejecting this claim, the court noted that the dog bit a woman, inflicting injuries requiring medical treatment, and there was testimony that the dog subsequently menaced the officers and ambulance attendants.  Rather than deliberate indifference to situations with dogs, the court found, "the police training manual does address situations involving mad dogs afflicted with rabies." The plaintiff failed to present any evidence "tending to show a 'direct causal link' between" any municipal policy and the alleged constitutional deprivation.

            The plaintiff's argument that she should have had "notice and an opportunity to be heard" under emergency circumstances, did not violate her rights. "To suggest otherwise would lead to ludicrous and impractical results." Hooper v. City of Detroit, 50 F. Supp. 2d 689 (E.D. Mich. 1999). [Cross-reference: Dogs; Governmental Liability: Policy/Custom; Property].

Police department's action of purchasing patrol wagons without safety nets and using them to transport detainees did not constitute deliberate indifferent to a substantial risk of serious harm; no federal civil rights liability for injuries detainee suffered when thrown about by vehicle motions after being placed in wagon with his hands cuffed behind his back.

            An intoxicated detainee was rendered a quadriplegic when he was thrown about by vehicle motions after being placed with his hands cuffed behind his back in a police wagon. He was thrown forward and suffered his injuries when he struck the bulkhead of the passenger compartment.

            He filed suit against various police department officials and against the manufacturer and seller of the patrol wagon. Claims against the manufacturer/seller were either dismissed or settled. A federal appeals court has upheld summary judgment in favor of the police department defendants.

            The court ruled that the purchase of patrol wagons without safety nets and the manner in which arrestees were transported in these wagons were not policies that "obviously presented a 'substantial risk of serious harm.'" Additionally, the court noted that the city's police department had guidelines in place which instructed officers to exercise caution when transporting individuals in the patrol wagon, including such suggestions as driving cautiously, place on the floor any prisoner whose physical condition "would not permit them to protect themselves from falling," and "advise prisoners to sit at the front of the wagon or on the floor." Even if these guidelines "may not have been adequate to prevent injuries, their failures, if any, constitute negligence at most," and not the "deliberate indifference" to a known substantial risk of serious harm that was required for federal civil rights liability in this context. Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).

     Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Disability Discrimination].

Louisiana trial court properly awarded $90,000 lump amount (to be reduced by 1/3 for plaintiff's degree of fault) to motorist allegedly injured by "too tight" handcuffing after he attempted to leave the scene while officer was writing traffic tickets; state Supreme Court rules, however, that motorist was not entitled to an additional $89,600 for psychiatric expenses, since therapy concerned many matters, such as his marriage and father's death.

            When a Louisiana police officer stopped a motorist for speeding and tailgating on an interstate highway, the motorist allegedly attempted to leave the scene as the officer was writing out some tickets. The officer removed the motorist from his car, handcuffed him and placed him in the back of the police car. The motorist complained that the handcuffs were too tight. After a brief period, the officer removed the handcuffs, issued four traffic tickets, and told the motorist he was free to go.

            The motorist then filed a lawsuit in state court against the officer and the city, claiming that the handcuffing resulted in physical injury in the form of numbness and swelling of his left hand and in severe weakness and muscle aches and pains, which was eventually diagnosed as rhabdomyolysis (destruction of muscle tissue accompanied by the release of the oxygen- carrying red muscle pigment myoglobin into the blood).

            After a bench trial, the court found the plaintiff to be partially at fault in the incident, assessing his fault at 33.3%, but rendering judgment in his favor and against the defendants. Damages were set at $90,000, but were not itemized into general and special (out-of-pocket) expenses. In an unpublished opinion, an intermediate Louisiana appeals court ruled that the plaintiff should have been awarded an additional $86,900 for psychiatric expenses, raising the total award to $176,900.

            The Supreme Court of Louisiana set aside this additional $86,900 in damages, ruling that the trial court acted within its sound discretion in refusing to award that amount for the psychiatric expenses. The court noted that the plaintiff had concerns about his divorce, the death of his father, the breakup of his marriage, his rhabdomyolysis condition, and a decline in his income. Based on this evidence, there could be a reasonable finding that his "emotional state was so fragile that the handcuffing incident may have required him to undergo psychiatric care." But this did not mean that the defendants were liable for all of the psychiatric expenses, since some of them could be found to be "so far attenuated from defendants' conduct as to warrant their exclusion from the award."

            A portion of the $90,000 awarded by the trial court as a lump sum "is presumed to include a portion of the psychiatric expenses sought by plaintiff." Bryan v. City of New Orleans, No. 98-1263, 737 So. 2d 696 (La. 1999).

Text: <http://www.lasc.org/news/newsindex.html>. [Cross-reference: Damages: Compensatory].

Illinois federal jury awards $28 million, ($18 million on excessive force claim and $10 million for denial of medical care), to PCP user who suffered an incapacitating stroke after an officer allegedly knocked him down.

            A 34-year-old man had been using PCP and drinking alcoholic beverages at a party. Police were summoned to break up a fight there in which he was involved. The man ran from the officers, and one officer allegedly "hit him from behind, knocked him down and wrenched his head." The officer contended that he had simply handcuffed the man, and then let him go at the urging of his friends.

            In any event, the man was left at the party. He lost consciousness and suffered a "brain- stem stroke" which left him a "quadriplegic," conscious, but unable to eat, talk, or interact with others. In a lawsuit filed against the city, he asserted that excessive force was used against him, and that officers on the scene ignored his friends' request that an ambulance be called for him after he lost consciousness. A number of hours later, his friends determined that he was paralyzed. He now requires around-the-clock care.

            A federal jury in Illinois awarded the plaintiff a total of $28 million. The award was divided into $18 million for excessive use of force, and $10 million for denial of medical treatment.

            The trial judge rejected the city's argument that the plaintiff's injuries could have resulted from his use of PCP. He ruled that the theory that the plaintiff's injuries were caused by the drug were too speculative to be evidence in the case.

            The city was also prevented from bringing up evidence of fights that the plaintiff had been involved in, since the trial judge ruled that these fights were not "of the sort to cause an injury" to his brain stem.

            The city was also prevented from raising its contention that many of the witnesses at the party were street gang members and therefore biased against police officers. Regalado v. Chicago, No. 96-C-3634, U.S. Dist. Ct. (N.D. Ill. Oct. 25, 1999), reported in The National Law Journal, p. A10 (Nov. 22, 1999).

A finding of probable cause at a preliminary hearing did not bar arrestee's later lawsuit for false arrest when trial judge heard evidence not available to the police officer at the time of arrest; plaintiff arrestee, therefore, was not barred from pursuing his federal civil rights claim.
            A California man arrested for rape "with a foreign object" was in jail for almost four months before the prosecution, on its own motion, dismissed the charges against him. He subsequently filed a federal civil rights lawsuit against the arresting officer, the city, and the county.

            The defendants argued in the trial court that a finding of probable cause at the plaintiff's preliminary hearing barred his assertions of false arrest in the lawsuit, under the principles of "collateral estoppel" preventing relitigation of the identical issue between the same parties in a subsequent proceeding.

            An intermediate California appeals court rejected this argument in this case, noting that the trial judge in the criminal case had received evidence that was not the same as the evidence available to the officer at the time of the arrest.

            In particular, the complaining witness testified that, in addition to a photo lineup, she identified the plaintiff twice in a live lineup conducted at the jail, lineups that occurred after the arrest. Accordingly, the question of whether there was probable cause at the time of the arrest was not actually decided in the preliminary hearing, and the plaintiff was not barred from pursuing his claims.

            In many cases, the appeals court acknowledged, a finding of probable cause at a preliminary hearing would bar the relitigation of probable cause at a subsequent proceeding, when only the evidence known to the officer at the time of the arrest was presented, citing Haupt v. Dillard, 17 F.3d 285 (9th Cir. 1994); Morley v. Walker, #97-16883, 175 F.3d 756 (9th Cir. 1999), full text: <http://www.ce9.uscourts.gov/opinions>.; Coogan v. City of Wixom, 820 F.2d 170 (6th Cir. 1987); and Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984).

            The appeals court did, however, uphold summary judgment for the defendants in the lawsuit, in a section of its opinion not authorized for publication. McCutchen v. City of Montclair, #E022025, 87 Cal. Rptr. 2d 95 (Cal. App. 1999).

Text: <http://www.courtinfo.ca.gov/opinions/> [Cross-reference: False Arrest/Imprisonment: No Warrant].

Officer did not violate clearly established rights of husband by insisting, correctly, on estranged wife's right, under Florida law, to assistance in entering jointly owned home, from which she had been excluded by husband, in order to recover medications and other personal items.

            A husband in Florida told his wife to leave their home. His wife requested two police officers to accompany her to the home to assist with retrieving medications and other personal items. The husband initially refused to allow his wife or the officers to enter the residence, but delivered his wife's medications to one of the officers outside the door.

            An additional officer who arrived on the scene. The husband allegedly closed the front door, which struck this officer. The officer allegedly pushed the door open, entering the house and struggling with the husband, in an attempt to arrest him for battery and resisting arrest. Criminal charges against the husband were subsequently dismissed.

            The arrestee brought a federal civil rights lawsuit against the officer. An intermediate Florida appeals court ruled that the officer was entitled to qualified immunity from liability under these circumstances.

            Having excluded his wife from the home, the husband was under the impression that she was required to obtain a court order for reentry.

            However, the officers who assisted his wife believed, correctly, that the wife was entitled to assistance in peacefully entering her home, which was jointly owned by both spouses. Accordingly, the officer did not violate any clearly established rights by rendering such assistance. Montague v. Cooley, 735 So. 2d 511 (Fla. App. 1999). [Cross-reference: Domestic Violence].

Federal appeals court rules that federal civil rights claim for illegal search of home only accrued after criminal charges against homeowner were dismissed when an award of damages for illegal search would necessarily imply invalidity of any potential conviction; one-year statute of limitations ran from date of dismissal rather than date of search.

            Police officers in Kentucky conducted a number of searches of a homeowner's residence. Three of the searches were warrantless, while the fourth was conducted pursuant to a warrant obtained on the basis of the first three searches. He was then prosecuted on federal drug charges. The trial court ruled that the second and third warrantless searches were illegal, and removed all references to evidence uncovered in them from the affidavit for the search warrant, finding that it then lacked information sufficient to provide probable cause. The charges against the homeowner were then dismissed.

            The homeowner then filed a federal civil rights lawsuit against various defendants involved in the searches and prosecution. The trial court, applying Kentucky's one-year statute of limitations for personal-injury actions, found that the limitations period began to run on the date of the search, not the date the criminal charges were dismissed, and therefore dismissed the lawsuit as untimely. It was filed almost exactly one year after the dismissal of charges, but approximately three years after the allegedly illegal searches.

            A federal appeals court reversed, reinstating the lawsuit. Since the only evidence that was to be introduced against the plaintiff in the criminal case against him was evidence discovered during the allegedly illegal search, a decision in a federal civil rights lawsuit in the plaintiff's favor would necessarily have implied the invalidity of any possible conviction on the criminal charges. In Heck v. Humphrey, 512 U.S. 477 (1994), the appeals court noted, the U.S. Supreme Court held that there could be no liability for damages under federal civil rights law when a standing conviction had not yet been set aside.

            While the Heck v. Humphrey decision involved a convicted prisoner, the appeals court reasoned that it should apply the same rule in the immediate case. It therefore found that the rule in Heck applied "pre-conviction as well as post-conviction." Therefore, the plaintiff could not bring his action for damages related to the criminal proceeding brought against him until a disposition in that prosecution had been reached. The correct date for the running of the statute of limitations was therefore the dismissal of the criminal charges. Since the plaintiff brought his lawsuit within one-year of that dismissal, his lawsuit was timely.

            "Just as a convicted prisoner must first seek relief through habeas corpus before his Sec. 1983 action can accrue, so too should the defendant in a criminal proceeding focus on his primary mode of relief--mounting a viable defense to the charges against him--before turning to a civil claim under Sec. 1983." Shamaeizadeh v. Cunigan, #98-5451, 182 F.3d 391 (6th Cir. 1999).

     Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.

            EDITOR'S NOTE: For other decisions applying the rule in Heck to certain pre- conviction situations, see Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996) (statute of limitations did not begin to run until plaintiff's murder conviction was reversed on appeal); and Covington v. City of New York, #96-2026, 171 F.3d 117 (2d Cir. 1999), full Text: <http://www.tourolaw.edu/2ndCircuit>. (agreeing with Third Circuit that Heck rule is applicable to accrual of claims that, if successful, would necessarily imply the invalidity of a potential conviction on a pending criminal proceeding).

Detective exercised his discretion by deciding not to pursue investigation of alleged domestic violence until the following morning; city was not liable for facially neutral domestic violence policy when it could not be shown that woman, shot and killed by her ex-husband, had been treated differently than male victims of domestic violence.

            Throughout a couple's relationship and marriage, and following the dissolution of the marriage, the man allegedly harassed, threatened, and physically abused the woman. The local police department had knowledge of his pattern of violent behavior towards his ex-wife and her family and responded to several 911 calls from her residence requesting assistance. Incidents involved an alleged sexual assault, the firing of a pistol, and other misconduct, which resulted in the man's conviction of three misdemeanor charges.

            After a restraining order was entered against him, the man allegedly "continued and intensified" his pattern of harassment, and allegedly threatened to kill her. The woman spoke to a police detective one evening, and he encouraged her to stay at her mother's house and return to the police station the next morning to discuss pursuing felony charges against her ex- husband. A misdemeanor warrant for violation of the protective order she had sworn out earlier was never served on her ex-husband.

            She did not return to the police department, and her ex-husband shot and killed her four days later. The estate of the deceased woman filed a lawsuit against the detective and city, asserting both federal and state claims. The trial court ruled that the detective was entitled to discretionary function immunity. He was under no statutory duty to take an immediate action, and he did not act willfully, maliciously, or in bad faith in making the decision to postpone the investigation of the decedent's complaint overnight.

            The court also found that the city's "facially neutral rule" for addressing domestic abuse cases was not discriminatory against women when there was no evidence that it had either a discriminatory purpose or else a history of being applied in a discriminatory manner.  The policy in question requires that officers make an arrest based on probable cause for events in domestic abuse situations which occurred outside their presence only after giving both the defendant and the victim Miranda warnings, and having all statements made in the presence of both the defendant and victim.

            While this rule treats domestic violence situations different than non-domestic violence situations, the court found that its purpose was to "help victims of domestic violence by facilitating the warrantless arrest of aggressors" and "safeguarding the admissibility of statements made by aggressors." The plaintiff could not show that the decedent was treated differently than a male victim of domestic violence.

            The court therefore granted summary judgment on all claims against the detective, and for the city on the federal civil rights claims against it. It declined to exercise jurisdiction on a state law claim that the city was liable for failure to protect the plaintiff's decedent because of a "special relationship" between the police department and her based on the facts of this case. The court ruled that this was a "novel and complex issue of state law" which would be more appropriately decided by an Alabama state court. Williams v. City of Montgomery, Alabama, 48 F. Supp. 2d 1317 (M.D. Ala. 1999). [Cross-reference: Public Protection: Crime Victims].

UPDATE Danish mother who left sleeping infant outside restaurant in carriage was not falsely arrested, New York federal jury finds, but still awards her $66,400 in damages for post-arrest damages, including alleged police department practice of failing to advise foreign arrestee of their right to seek assistance from their country's consulate; $1 each awarded to woman and the father of her baby for strip search.

            A Danish citizen flew into the U.S., along with her 14-month-old daughter, to visit the baby's father, a Danish citizen living in New York. The couple stopped for drinks at a restaurant and left the baby, who was sleeping in a carriage next to a chain link fence surrounding cafe seating on the adjoining sidewalk. They then went inside the restaurant, sitting in a window table where they were able to see the carriage, which was six feet away. They later claimed that this was a common practice in their country. The couple was arrested and the baby was taken into foster care. Charges against them were later dropped, and the baby was returned to them.

            Their lawsuit asserted claims for false arrest, but the trial court dismissed a malicious prosecution claim,  since the manner in which the criminal case was dismissed, an "Adjournment in Contemplation of Dismissal" (ACD) is not an unqualified dismissal. A favorable termination for the criminal defendant is a necessary element of a malicious prosecution claim. See Sorensen v. City of New York, 1999 U.S. Dist. LEXIS 10927 (S.D.N.Y.), reported in Liability Reporter No. 322, p. 155 (October 1999).

            Following a jury trial, the mother and father were both found to not have been subjected to false arrest. The jury did, however, award a total of $66,400 in damages on a claim against the city asserting that it had a practice of failing to inform arrestees from foreign countries of their right to seek assistance from their consulate. The awarded was divided into $6,400 in compensatory and $60,000 in punitive damages. Evidence in the trial indicated that the city's police department failed to provide this information in tens of thousands of arrests per year. The city will seek to overturn the award, particularly the award of punitive damages, concerning which a city attorney stated that "the law is very clear that punitive damages may not be awarded against the city." Sorensen v. City of New York, U.S. Dist. Ct., S.D.N.Y., reported in The New York Times, p. A23 (Dec. 15, 1999). [Cross-reference: Damages: Punitive; Malicious Prosecution].

Aggressive campaign of seizing allegedly intoxicated individuals and taking them to detoxification facility for treatment evaluation without probable cause that they were dangerous to themselves or others violated Fourth Amendment.

            A city police department began a campaign of aggressively referring intoxicated persons to a alcohol detoxification facility. It adopted a general order that officers with contact with "any individual who exhibits any potential of intoxication" should take them to be evaluated by "detox center staff for consideration of detox treatment." Under the order, the monthly referrals to the center went from 32 a month to 85 per month.

            The order was modified later to allow the seizure of intoxicated individuals and take them to the detox center only when the officer had probable cause that the person was incapacitated and dangerous to others or to himself. A number of persons seized under the prior version of the order sued the city and a number of city officials, as well as the detox center, claiming that their Fourth Amendment rights had been violated.

            The trial court granted summary judgment for the defendants. Reversing, a federal appeals court noted that "The Fourth Amendment is not limited to criminal cases, but applies whenever the government takes a person into custody against her will." In this case, "the seizure of persons for detoxification in this case is closely analogous to a criminal arrest and requires application of the probable cause standard." This requires showing that the person seized for detoxification treatment are a "danger to himself or others."

            The appeals court noted that the seizures in question included several instances in which individuals were seized while in an allegedly intoxicated condition in or near their homes, including one man seized from his front porch, one woman seized from her home while preparing for bed, one man sleeping in his car (who was later seized from his home), and one plaintiff who claimed that on all but two or three of the 13 times he was seized the seizures occurred in his home while he was sleeping, after consuming as few as two to four beers.

            The appeals court rejected arguments that the officers were entitled to qualified immunity, finding that the seizure of intoxicated persons for treatment without probable cause violated clearly established law. Anaya v. Crossroads Managed Care Systems, Inc., #97-1358, 195 F.3d 584 (10th Cir. 1999).

     Text: <http://www.kscourts.org/ca10/>. [Cross- reference: Public Protection: Intoxicated Persons].

Denying photographer access to accident scene to take photographs did not violate his First Amendment rights; newsmen have no constitutional right of access to crime or disaster scenes when the general public is excluded.

            When a fatal traffic accident occurred in Alabama, a freelance photographer went to the scene for the purpose of taking pictures of the wreck for a local newspaper. A sergeant with the local police department was working at the accident site to secure it until a state trooper arrived. He told the photographer, when he arrived, that he could not take pictures, and made him move away, threatening him with arrest if he took another picture.

            The photographer subsequently sued the city and the officer, asserting that these actions violated his First Amendment right. Rejecting this claim, and finding the defendant officer entitled to qualified immunity, the trial court found that the officer's actions "violated no constitutional rights." It noted that there was no prior caselaw addressing the subject of whether failure to allow access to an accident scene so a newsperson could take photographs was a First Amendment violation.

            The court also pointed out that the U.S. Supreme Court, in Brazburg v. Hayes, 408 U.S. 665 (1972), has specifically held that "[newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded." Kinsey v. City of Opp, 50 F.2d 1232 (M.D. Ala. 1999).

Arrestee who joked at courthouse security checkpoint about whether he looked like "the Unabomber" stated claim for violation of his First Amendment rights in claiming he was arrested in retaliation for telling the joke.

            A man entered a New Jersey courthouse for a hearing in a civil lawsuit where he was acting as his own lawyer. As part of his evidence, he brought a cardboard box containing a water filtration system. Security at the checkpoint in the entrance asked him what he had in the box. He voluntarily handed the box over, but, in a "joking manner," said "What do I look like, the Unabomber." The box was inspected and given back to him and he was told that he should not be talking like that around the courthouse.

            A sheriff's officer entered the courtroom to which he went and seized him forty-five minutes later. He was ultimately charged with a "Terroristic Threat" and "Creating a False Public Alarm." These charges were later downgraded to petty disorderly person offenses, of which he was found guilty. The conviction was later overturned on appeal. The arrestee then filed a federal civil rights lawsuit against the county, the sheriff, and a number of sheriff deputies, claiming that the arrest was in retaliation for his exercising his First Amendment rights in joking about being the "Unabomber."

            A federal trial court agreed that the plaintiff stated a claim. While his "joke" regarding the security measures at the courthouse may have been "in poor taste, given that it came close on the heels of the arrest of the actual 'Unabomber'" his comment could not be reasonably be construed as "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Arrest and prosecution of him in retaliation for making this joke could violate his First Amendment rights.

           The court ordered further discovery to help determine whether the true motive for the arrest was retaliatory or not. Palma v. Atlantic County, 53 F. Supp. 2d 743 (D.N.J. 1999).

Illinois jury awards $5 million to university student struck and injured by speeding car driven by housing authority police officer.

            A Chicago university student was struck while crossing the street by a vehicle driven by a housing authority police officer. He suffered 14 fractures and a closed head injury leading to mild range impairment. He sued the housing authority and the officer and was awarded $5,026,962.89 in damages by an Illinois state jury. The officer's commander determined that he was speeding at the time of the collision. Gilchrist v. Benford, No. 96-L-1707, Circuit Ct., Cook County, Ill., reported in Chicago Daily Law Bulletin, p. 3 (December 7, 1999).

Police officer use of a racial epithet in response to a request for his name and badge number did not, standing alone, constitute a violation of the equal protection rights of the person so addressed; claim that another officer engaged in choking suspect during and after search of his mouth for drugs reinstated because of disputed facts.

            Does a police officer's use of a racial epithet, standing alone, constitute a violation of the equal protection rights of the person so addressed? "No," according to a federal appeals court.

            The plaintiff in a federal civil rights lawsuit was subjected to a pat-down search, a search of his car, and a search of his mouth by an officer who was investigating an alley location where drug dealing was suspected. The officer decided to conduct the mouth search based on the way that the suspect was talking, leading him to believe that he had something concealed there. The plaintiff claimed that the officer began choking him during and after the mouth search.

            At this point, a second officer arrived on the scene, and the suspect was then released. He then requested the police supervisor's name and the names and badge numbers of the officers on the scene. The second officer allegedly refused to give his supervisor's name and number to the plaintiff, adding "we are not going to tell you our names either boy. You can only have our badge numbers [...] nigger." Both officers deny that this statement was made.

            A federal appeals court, upholding summary judgment for the second officer on the basis of qualified immunity, ruled that these statements, even if made, "did not amount to conduct, such as harassment, that would deny" the plaintiff of equal protection of the laws.

            The plaintiff himself stated that the first officer stopped choking him before the second officer arrived, so that the equal protection claim based on the alleged statement was "completely unrelated" to the alleged choking incident. "We hold today that an officer's use of a racial epithet, without harassment or some other conduct that deprives the victim of established rights, does not amount to an equal protection violation."            Use of such an epithet is "strong evidence that a comment or action is racially motivated." But this alone does not show that the officer has deprived a person of "equal protection of the law." Where "the conduct at issue consists solely of speech, there is no equal protection violation."

            The court also commented that the plaintiff could still file a complaint with the police department. "The best way to take care of allegations that a police officer is racially intolerant in his association with members of the community is by instituting appropriate disciplinary measures within the police force, not by resorting to the judicial process." The appeals court also ruled that the first officer was improperly granted summary judgment, since the claim by the plaintiff that he choked him a second time because he complained about the mouth search raised a disputed issue of material fact. Williams v. Bramer, #98-10254, 180 F.3d 699 (5th Cir. 1999). Full Text: <http://www.law.utexas.edu/us5th/us5th.html>. [Cross-reference: Assault and Battery: Physical].

Altman v. Kelly, 36 F. Supp. 2d 433 (D. Mass. 1999).[19-20]
Anaya v. Crossroads Managed Care Systems, Inc., #97-1358, 195 F.3d 584 (10th Cir. 1999).[28]
Bryan v. City of New Orleans, No. 98-1263, 737 So. 2d 696 (La. 1999).[21-22]
Covington v. City of New York, #96-2026, 171 F.3d 117 (2d Cir. 1999).[26]
Gilchrist v. Benford, No. 96-L-1707, Circuit Ct., Cook County, Ill.,
                reported in Chicago Daily Law Bulletin, p. 3 (December 7, 1999).[30]
Hooper v. City of Detroit, 50 F. Supp. 2d 689 (E.D. Mich. 1999).[20]
Kinsey v. City of Opp, 50 F. Supp. 2d 1232 (M.D. Ala. 1999).[28-29]
Los Angeles Police Dept. v. United Reporting Publishing Corp., #98-678, 120 S. Ct. 483 (1999).[19]
McCutchen v. City of Montclair, #E022025, 87 Cal. Rptr. 2d 95 (Cal. App. 1999).[23-24]
Montague v. Cooley, 735 So. 2d 511 (Fla. App. 1999).[24]
Morley v. Walker, #97-16883, 175 F.3d 756 (9th Cir. 1999).[24]
Palma v. Atlantic County, 53 F. Supp. 2d 743 (D.N.J. 1999).[29]
Regalado v. Chicago, No. 96-C-3634, U.S. Dist. Ct. (N.D. Ill. Oct. 25, 1999),
                reported in The National Law Journal, p. A10 (Nov. 22, 1999).[22-23]
Shamaeizadeh v. Cunigan, #98-5451, 182 F.3d 391 (6th Cir. 1999).[25]
Sorensen v. City of New York, U.S. Dist. Ct., S.D.N.Y.,
                 reported in The New York Times, p. A23 (Dec. 15, 1999).[27]
Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).[21]
Williams v. Bramer, #98-10254, 180 F.3d 699 (5th Cir. 1999).[30-31]
Williams v. City of Montgomery, Alabama, 48 F. Supp. 2d 1317 (M.D. Ala. 1999).[26-27]