May, 2000 web edition

Finding, in juvenile delinquency proceeding, that 15-year-old recklessly endangered the life of an officer precluded him from relitigating this fact in a federal civil rights lawsuit against the officer for shooting him.

            A fifteen year old juvenile got into a stolen vehicle in a parking lot just as police officers, tipped off that stolen vehicles were being stored there, drove into the lot, blocking the exit with their vehicles. The officers asserted that when they exited their vehicles and tried to make an investigatory stop of the juvenile, he drove his vehicle directly and them, and that one of them shot him in the head in self-defense. (The juvenile claimed that the officers shot at him without provocation as his vehicle was rolling to a halt).

            The youth was adjudicated a delinquent on charges of reckless endangerment and possession of stolen property. He then filed a federal civil rights lawsuit against the officers and the county, claiming excessive use of force in his shooting. The trial court ruled that the prior adjudication of delinquency on the charge of reckless endangerment precluded him from pursuing his claim of excessive force, under the principle of "collateral estoppel."

            Despite the fact that the juvenile proceeding was a state proceeding, and the civil rights claim was under federal law and in federal court, the finding that the juvenile recklessly endangered the life of an officer mandated this result, since it was the same issue as required to decide the federal claim. The officer was entitled to use deadly force against a grave risk of death caused by the juvenile's actions.

            Because the juvenile did not claim that he was deprived of a full and fair opportunity to defend against the reckless endangerment charge, he could not now relitigate the factual findings that proceeding resulted in. The court rejected the argument that its findings could not be used in this fashion because they were juvenile proceedings, finding that the civil lawsuit by the plaintiff directly "put at issue facts determined in his previous juvenile delinquency adjudication." Green v. Montgomery, 43 F. Supp. 2d 239 (E.D.N.Y. 1999). [Cross- references: Firearms: Intentional Use].

Man allegedly beaten unconscious on the street by police officer and then left there had a clearly established right to medical assistance; officers were not entitled to qualified immunity on denial-of-medical-care claim.

            A man for whom there was an outstanding arrest warrant ran away when he encountered two police officers. In a federal civil rights lawsuit he filed after the incident, he asserted that one of the officers then beat him into unconsciousness with a flashlight, after which the officers left the man on the street with a group of his friends, rather than calling an ambulance or taking him to the station. The plaintiff later suffered a stroke caused by trauma to one or both of his vertebral arteries, and now has no control over his body, with only the ability to move his eyes up or down.

            The defendant officers argued that the plaintiff had no substantive due process right to medical care and that they were entitled to qualified immunity from this claim. The trial court did not agree. The court noted that the plaintiff essentially alleged that one of the officers rendered him unconscious and helpless, and then left him in the care of his drunk friends. By rendering him unconscious, the officer "did effectively cut off all avenues of aid" that the plaintiff could "seek for himself." The officers' alleged abandonment of him on the street "even after his friends asked them to call an ambulance could also constitute deliberate indifference" to his serious medical needs, which they had allegedly caused.

            The plaintiff had a clearly established right to be protected against such a "state- created" danger, the court ruled. Regalado v. City of Chicago, 40 F. Supp. 2d 1009 (N.D. Ill. 1999).

Man arrested for disorderly conduct by New York state park police officer could not sue for false arrest or malicious prosecution when a citation issued to him was "adjourned in contemplation of dismissal," since this was not viewed as a termination in his favor under state law.

            A New York man claimed, in a federal civil rights lawsuit, that he was "harassed and verbally abused" in a state park by a park police officer. The officer allegedly spotted him in the park and ordered him to leave since the park was closed. He claimed that he began to leave but that the officer arrested him instead, later issuing him two summonses for disorderly conduct.

            A month later, one of the disorderly conduct charges was dismissed, and the other was "adjourned in contemplation of dismissal (ACD)" and ultimately dismissed. He sued the officer and the state for false arrest and malicious prosecution. Granting judgment for the defendants, a federal trial court noted that the "ACD" termination of a prosecution "is not considered a termination of prosecution in plaintiff's favor under New York law" and therefore could not be the basis for a lawsuit for either false arrest or malicious prosecution. The court also found that the two disorderly conduct charges brought were "not distinct," barring a claim for false arrest or malicious prosecution on either one. Bowles v. State of New York, 37 F. Supp. 2d 608 (S.D.N.Y. 1999). [Cross-references: Defenses: Malicious Prosecution].

Officers and city were not liable for false arrest or malicious prosecution to man arrested pursuant to valid arrest warrants for theft and criminal trespass, despite the fact that he was not actually the person named in the warrants; arrestee had the same first and last name as suspect sought, lived at the address named in the warrant, and generally fit the description of the suspect.

            Two police officers went to a residence to execute arrest warrants charging a man with theft and criminal trespass. A man who lived there had the same first and last name as the suspect sought in the warrant, but a different middle name. The warrant only stated a middle initial, however, rather than a full middle name.

            The officers arrested the man, despite his objections that he had not stolen anything. He spent four hours in jail until he made bond. When the case was called for trial, an employee of the store from which the theft was made informed the court that the arrestee was not the person depicted in his store's security videotape and was not the person named in the arrest warrant, so all charges against him were dismissed.

            He sued the city and its officers for false arrest and false imprisonment. An intermediate Alabama appeals court upheld summary judgment for the defendants. It noted that, under Alabama law, a claim for false arrest or false imprisonment cannot be based on an arrest made pursuant to a valid arrest warrant. Further, the court found that the officers had probable cause to make the arrest, barring a claim for malicious prosecution, as the arrestee had the first and last name corresponding to that in the warrant and lived at the address named in it. Further, he closely matched the physical description of the suspect wanted. Montgomery v. City of Montgomery, No. 2971214, 732 So. 2d 305 (Ala. Civ. App. 1999). [Cross- reference: Malicious Prosecution].

Officers not liable for failure to release arrestee after they allegedly learned he was not the suspect in an attack; arrestee was taken into custody under valid warrant and officers did not have authority to release him without a judicial order.

            A security guard at a private company reported that a man came to the company premises and attacked him, stating that he was a recently terminated employee, that he and his family had been "destroyed" by the company, and, brandishing a weapon, said that he wanted to "kill everyone" working on the premises. Officers who investigated obtained the name of the only recently terminated employee, and were told that the vehicle driven by the assailant matched the one driven by this ex-employee. The physical description furnished by the security guard also matched that of this ex-employee, and an arrest warrant was obtained.

            Three days after the ex-employee was arrested, his brother approached the security guard at work and presented a photograph of the arrestee. The security guard stated that this was not the man who assaulted him. The two went to the county courthouse to notify authorities of this fact. They met a police officer in the parking lot there who told them that they would have to return on a workday, since it was Sunday. The following day was a holiday, so they ultimately returned on Tuesday, a full six days after the arrest, and met with the county undersheriff. The next day, they spoke to a deputy sheriff, who arranged a line-up, at which the security guard did not identify the arrestee as his assailant. A hearing before a judge was then arranged, and held two days later, at which time the judge ordered the arrestee released.

            Having spent nine days in custody, the arrestee then filed a federal civil rights lawsuit against the police officer and deputy sheriff, asserting that they violated his rights by failing to "promptly" seek his release when they learned that he was not the assailant. The trial court granted summary judgment to the defendants.

            The court noted that the plaintiff was properly arrested pursuant to a valid arrest warrant. The defendants did not have any power to release the plaintiff without a judicial order. The plaintiff spent five days in jail after authorities were notified of the problem, but only three of these were "working" days, and during that time a line-up was conducted and a previously unscheduled judicial hearing was arranged and held.

            There was no indication that the defendants purposely delayed the plaintiff's appearance before the judge, and they had no control over the court's docket. Two days after the lineup may have "been the earliest date" on which to bring him before the judge, so the court found that this appearance was "reasonably prompt." Miller v. Bd. of County Commissioners of County of Rogers, 46 F. Supp. 2d 1210 (N.D. Okl. 1999). [Cross-reference: False Arrest/Imprisonment: Warrant].

Miami reaches $2.5 million settlement in death of 72-year-old man in his bedroom during SWAT team raid on his apartment in which 122 shots were fired; officers asserted that decedent fired two shots at them after they properly knocked and announced they were executing search warrant; plaintiffs asserted that gun and drugs were "planted" by officers to "coverup" misconduct, and that officers did not properly announce their identity as police.

            A street narcotics unit of the Miami city police department obtained a search warrant for an apartment based on information that they had seen an individual there give someone a plastic bag which had cocaine in it. A SWAT team surrounded the apartment building at night to serve the warrant. According to the officers, they knocked and announced their presence and then pushed in the door, in response to which an occupant of the apartment, a 72-year-old widower, fired two shots at them.

            Officers armed with semi-automatic handguns fired 122 shots in response, hitting the occupant nine times. He was hit in the neck, shoulder, abdomen, testicles, legs, left arm and hand, and died. The shots which hit him went through the bedroom door. A .38 revolver which had been fired twice was found on the man's chest, and a small container of cocaine, allegedly thrown out of the bedroom window as police arrived, was found outside the building.

            The decedent's family, in a federal civil rights lawsuit over the shooting, alleged that the officers did not properly announce their identity as police before breaking into the apartment. The decedent's 14-year-old daughter, present in the apartment at the time, made two 911 calls from the apartment bathroom during the raid, reporting that someone was breaking in.

            The plaintiffs disputed the officers' version of the incident, arguing that no fingerprints or fingerprint smudges were found on the gun which the decedent allegedly fired. The plaintiffs also stated that no photographs of the gun at the scene were produced by the police. They argued that the cocaine was "planted" on the premises, also pointing to the lack of photographs showing the drug bag on the scene, and the absence of any fingerprints on the glass container of cocaine or the plastic bag it was in. Plaintiffs further pointed to the fact that the street narcotics unit which obtained the search warrant was dismantled a year and a half after the raid, following claims that undercover officers in the unit had "planted" a gun and made untruthful statements to "coverup" misconduct in the shooting of a homeless man.

            The plaintiffs also claimed that a police department Internal Affairs unit logbook for police shootings only indicated a total of five shots being fired in the incident, despite the 122 shots that were actually fired. Without any admission of liability on the part of the city, a $2.5 million settlement was reached between the parties. Brown v. City of Miami, U.S. Dist. Ct. Miami, Fla., reported in The National Law Journal, p. A10 (March 27, 2000). [Cross- reference: Search and Seizure: Home/Business].

Arrests and threatened arrests of anti-abortion protesters on highway overpass for alleged violation of a state statute prohibiting "loitering" violated their First Amendment rights as overpass was similar to a public street and therefore a public forum; officer was entitled to qualified immunity, however, as he relied on the constitutionality of the statute, acted on the orders of his supervisor, and believed that the protesters represented a hazard to traffic safety; no showing of official policy or custom as required for municipal liability.

            A police officer in Virginia was notified by his dispatcher that there was a group of anti-abortion protesters located on an overpass. After informing his supervisors of the ongoing protest, he was instructed to proceed to the scene and order all protesters to either leave or face charges under a state statute prohibiting loitering on certain bridges designated by the Commissioner of the state department of transportation.

            The officer made copies of the state statute which he distributed to the protesters at the overpass. The officer later stated that, based on his observations, he believed that the way the protesters displayed their signs, they were intentionally attempting to distract cars traveling below the overpass on the Interstate highway. Most of the protesters stopped their demonstration after being threatened with arrest, but two did not and were, in fact, arrested.

            The protesters filed a federal civil rights lawsuit challenging the constitutionality of the statute as applied to them, and the trial court granted a preliminary injunction against the enforcement of the statute to prevent such protests. The suit also sought damages against the officer in his official and individual capacity.

            The trial court found that the officer's actions violated the plaintiffs' First Amendment rights. Their "peaceful picketing and protesting on the pedestrian overpass" constituted "normally protected First Amendment speech." The overpass was "most akin to a public sidewalk or street, and therefore must be considered as a traditional public forum." The court found that the demonstrators were not "loitering" under an "ordinary definition of what it means to 'loiter'." The statute in question applies to loitering, "not protesting," and "in any event, did not apply to the bridge where the plaintiffs were protesting."

            The officer was entitled, however, to qualified immunity in his individual capacity. While the plaintiffs had a "clearly established right" to "protest their individual beliefs on [a] traditional public" forum without "fear that their actions" would lead to an arrest for loitering, the court nevertheless found that the officer's actions could be viewed as objectively reasonable.

            He relied on the "authority of the legislature and its enactment of constitutional laws." He was reasonable in his assumption that the statute was constitutional and, based on the circumstances and language of the statute, in assuming that it applied to the conduct of the plaintiffs, even if it did not. Further, he was not a "renegade police officer that located an obscure and unused statute and made an impromptu decision to enforce the law," but rather acting on the basis of his immediate supervisor's specific instructions. The court further noted that the officer believed that the protesters were causing a traffic safety hazard. For purposes of qualified immunity, the issue was not whether they actually were doing so, but whether the officer reasonably believed they were.

            Finally, the court noted that the officer "remained calm, acted professionally, and courteously undertook the arrest of the protesters after warning each protester  and providing each protester with a copy of the statute prior to any arrests."

            The court also found that the plaintiffs were not entitled to proceed with their official capacity claim against the officer. First, he was not an official policy maker, or final decision maker, for the city which employed him. Secondly, the allegations in the complaint were insufficient to set forth facts showing that the actions alleged occurred "pursuant" to the city's official policy or custom. Lyttle v. Brewer, 77 F. Supp. 2d 730 (E.D. Va. 1999). [Cross- references: Defenses: Qualified Immunity; False Arrest/Imprisonment: No Warrant; Governmental Liability: Policy/Custom].

An arrestee's failure to challenge a forfeiture proceeding concerning $11,000 he gathered to use for bail money precluded him from asserting, in a Federal Tort Claims Act lawsuit, that he had a property interest in the money at the time he claimed it was "illegally seized."

            A D.C. man was arrested by Secret Service agents for engaging in a scheme of credit card fraud. To secure his pretrial release, he claimed that he had arranged for relatives and friends to provide $11,000 in cash, Western union money transfers, and postal money orders to "help in his criminal defense," and that he had decided to use this money to post his bond.

            The prosecution argued that the $11,000 did not derive from legitimate sources and the trial court refused to allow the defendant to use it for a bail bond. The day before the judge's ruling, however, a U.S. Postal Inspector seized the money from the bondsman to whom the arrestee had entrusted it. The Postal Service then initiated an administrative forfeiture proceeding against the funds. While the arrestee received notice of the proceeding, he did not participate in it, and the funds were forfeited. He also pled guilty to one count of credit card fraud.

            He then filed a lawsuit under the Federal Tort Claims Act (FTCA), asserting that the Postal Inspector's seizure of the $11,000 was illegal and that the U.S. government was therefore liable for "conversion" of the money. Granting summary judgment to the government, the trial court ruled that the plaintiff's failure to challenge the forfeiture proceeding barred him from arguing that he had a property interest in the money at the time of its seizure. The federal forfeiture statute provides that the title to property subject to forfeiture is regarded as having vested in the government on the date of the act for which the forfeiture was ordered, and "relates back" to that date. Bazuaye v. U.S., 41 F. Supp. 2d 19 (D.D.C. 1999). [Cross-reference: Federal Tort Claims Act].

City was entitled to summary judgment on claims that it inadequately trained and supervised two officers where the plaintiffs presented no evidence of any municipal policy or custom allowing unlawful dwelling entry or the use of excessive force during arrests.

            Two police officers went to a man's residence to arrest him pursuant to six outstanding arrest warrants. They entered the residence, where they took the suspect into custody. In his federal civil rights lawsuit against the officers and the city, he claimed that they first pounded loudly on the door and yelled racial epithets, frightening his children, and, upon entering the residence, abused him verbally and assaulted him physically, threatening his life.

            The lawsuit asserted that the city failed to adequately train and supervise the officers. Upholding summary judgment for the defendant city, a federal appeals court found that the plaintiffs "presented no evidence upon which a reasonable jury could find that the City had maintained some policy or custom allowing unlawful dwelling entry or the use of excessive physical force during arrest." Indeed, the court found that the plaintiffs presented "mere allegation" on this issue. There was also "no evidence" that the City "either on this occasion or in the past failed to investigate and discipline the use of excessive force by its police personnel where such discipline was justified." Brown v. Shaner, #97-4406, 172 F.3d 927 (6th Cir. 1999).

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

New York trial judge properly exercised discretion in denying arrestee's motion to compel production of arresting officer's employment records and district attorney's entire file on the arrest in arrestee's lawsuit claiming assault by officer.

            A New York arrestee sued the city for an alleged assault by the arresting officer. He filed a motion seeking to compel the city to produce the employment records of the officer and to compel the county district attorney, a non-party in the case, to produce the entire file prepared by his office regarding the underlying arrest and trial of the plaintiff.

            An intermediate New York appellate court ruled that the trial court properly refused to order the district attorney to produce his files, since the plaintiff failed to show that the information sought to be discovered from this nonparty could not be obtained from other sources. The appellate court also upheld the trial court's exercise of discretion in denying the motion to compel the city to produce the officer's employment records. Tsachalis v. City of Mount Vernon, 690 N.Y.S.2d 746 (A.D.N.Y. 1999). [Cross-reference: Assault and Battery: Physical].

Evidence that occupants of a motor vehicle worked in the "adult entertainment industry" and that one of them was a prostitute who had worked in a legal brothel was irrelevant to issues in federal civil rights lawsuit over officer's detention of them following a vehicle stop and search of their possessions; introduction of evidence would also be prejudicial; state law emotional distress claim did not alter result.

            A Utah highway patrol officer stopped a motor vehicle. The occupants later filed a federal civil rights lawsuit challenging his detention of them following the stop, as well as his search of the vehicle and of their luggage and one of their purses. The trial court ruled that the officer violated the Fourth Amendment rights of all plaintiffs by illegally detaining them following the vehicle search. Remaining for trial were the claims related to the searches, as well as a claim that two female occupants were not allowed the right to relieve themselves during the detention.

            The plaintiffs made a motion to exclude evidence that two of them worked in the "adult entertainment industry" and that one of them was a prostitute who had worked at a legal brothel. The defendants argued that the plaintiffs' professional employment was relevant to evaluation of the damages alleged by them, which required examination of their physical and mental histories, especially in light of state law claims for intentional infliction of emotional distress which were also asserted in the lawsuit.

            The trial court agreed to the plaintiffs' motion, ruling that the "occupational and related activities" of the plaintiffs were "completely irrelevant" to the issue of whether the officer could have reasonably believed his conduct was proper or that he had consent for the search of the vehicle. The court noted that the plaintiffs' professional background was "unknown" to the officer at the time of his alleged illegal actions, and that introduction of it into evidence would be substantially prejudicial.

            The judge found the evidence of the plaintiffs' occupations "irrelevant and prejudicial" to the state law emotional distress claim as well. The court ruled that the plaintiffs, on direct examination, could refer, if they wished, to their occupation as being in "the entertainment business." That "should be the full extent of the evidence unless the plaintiffs further open the door." Skultin v. Bushnell, 82 F. Supp. 2d 1258 (D. Utah 2000). [Cross-reference: Emotional Distress; Search and Seizure: Vehicle]

Alabama city, accused of causing a man's arrest in another county by failure to recall an arrest warrant, was entitled to have venue of lawsuit moved to county in which it was located and in which its allegedly wrongful acts had occurred.

            An arrestee brought a lawsuit against an Alabama city after he was arrested in another city on a warrant for failure to appear in court on a traffic ticket. He had previously paid the fine for the traffic violation and for the failure to appear charge, and the court had issued a warrant-recall order, but, for unknown reasons, the recall order was not carried out. He sued for false arrest, bringing the lawsuit in the county where he had been arrested.

            The defendant city, accused of having caused the arrest by failure to recall the arrest warrant, asked that the venue of the lawsuit be transferred to the county in which it was located. The Supreme Court of Alabama ruled that the city was entitled to this transfer of venue, when the acts or omissions by the city which allegedly caused the damages occurred in that county. The court rejected the plaintiff's argument that venue was proper in the other county since a city in that county was where he was arrested, and his lawsuit also named as a defendant the city which arrested him. While ordinarily in Alabama, venue for a lawsuit is proper against all defendants as long as it is proper against any defendant, this rule does not apply to municipalities, who have a statutory right to venue in the county in which "the municipality is located" or in which the "act or omission complained of occurred." Greensboro, Ex Parte, Re: Ridgeway v. City of Butler, No. 1971738, 730 So. 2d 157 (Ala. 1999). [Cross-references: False Arrest/Imprisonment: Warrant].

California highway patrol officer owed a duty of reasonable care to occupants of a motor vehicle that he ordered to pull over to highway's center median rather than right shoulder; appeals court reinstates personal injury lawsuit by vehicle occupants injured when an oncoming truck struck their vehicle from behind.

            A California appeals court has ruled that a law enforcement officer "has a duty of reasonable care to the occupants of a motor vehicle when the officer stops the vehicle for a traffic violation." The case involved a California Highway Patrol officer who stopped a vehicle for allegedly speeding. The officer motioned the driver to stop in the 10-foot wide center divider median area on the highway, rather than on the side of the highway.

            As the officer walked back to his motorcycle after writing a number of citations, he saw a pickup truck drifting into the center median toward him and the stopped vehicle. While he waved at it and jumped up and down, trying to attract the attention of the truck's driver, the truck proceeded partly in the median area. The officer dove over the concrete median barrier and out of the way, and the truck struck the rear of the stopped vehicle. A number of occupants of the vehicle were seriously injured and they sued the officer and the state Highway Patrol. They argued that the officer should have stopped them on the right shoulder of the road, rather than on the center median.            The trial court granted summary judgment for these defendants, ruling that the officer did not owe the plaintiffs a duty of reasonable care. Reversing, an intermediate California appeals court noted that it had not found any prior California cases which explicitly ruled on the issue of a law enforcement officer's duty of reasonable care in stopping traffic violators, although some cases "implicitly hold that the duty exists."

            Finding that there was a duty of care, the appeals court rejected the defendants' argument that the plaintiffs had to show a "special relationship" existed between them and the officer at the time, "because they allege misfeasance" based on the officer's acts, "which allegedly created a risk of harm and made their position more vulnerable." While the officer may not have had any duty to stop the plaintiffs' on the right shoulder "as a matter of law," the issue was whether he "used reasonable care in stopping the car in the median area," which was a triable issue of material fact for the jury to decide. "Factors to be considered are divider width, traffic speed, traffic density, and other surrounding circumstances." The ultimate question was "are the hazards of conducting the stop in the center divider more or less than moving the violator across multiple freeway lanes?"

            The appeals court also rejected the argument that the officer's actions were protected by discretionary immunity. The officer's decision to stop the vehicle for a traffic violation and to direct the driver to stop in the median area was an "operational or ministerial decision, rather than a discretionary decision protected by immunity," since discretionary acts protected by that immunity "have consistently been interpreted by California courts to include only those acts of public employees that are basic policy-making decisions," rather than those that "merely implement a basic policy already formulated." Lugtu v. California Highway Patrol, #D032518, 2000 Cal. App. LEXIS 216, 94 Cal. Rptr. 2d 113.

Text: <http://www.courtinfo.ca.gov/opinions/>. [Cross-reference: Search and Seizure: Vehicle].

Arizona city owed a duty to a motorist injured on a state roadway by a piece of metal lying there despite a state statute giving the state the exclusive obligation to maintain the roadway; city's officers routinely patrolled the roadway and allegedly routinely removed such dangers or reported them to state authorities and therefore might be liable for failure to do so in this instance.

            A motorcyclist in Arizona was injured when he struck a "piece of metal" while riding on a state roadway. He sued the state of Arizona as well as the city in which he had been riding at the time, claiming that their negligent failure to maintain the roadway in a safe condition caused his accident and injuries.

            The city moved to dismiss the claims against it on the grounds that it had no legal duty to the plaintiff. Under Arizona Revised Statutes sections 28-332(A) and 28-7043(D), the city argued, the state had the exclusive responsibility to maintain the roadway in question in a safe condition. The trial court agreed and dismissed the claims against the city.

            On an appeal by both the plaintiff and the defendant state, an intermediate Arizona appeals court reversed, reinstating the claims against the city. The court noted that prior state caselaw provided that a city could be held liable to the general public for negligence in maintaining a state highway if the plaintiff could prove that the city actually exercised control over the highway.

            In this case, however, the plaintiff did not assert that the city performed any maintenance on the highway or put any improvements on it. Instead, the complaint merely alleged that the city had officers who patrolled the highway.

            The plaintiff alleged that the city was liable because its officers failed to correct or report the hazardous road condition (the metal) which caused the injuries, and that, while patrolling the state roadway, the city police "routinely 'removed dangerous conditions'" or "informed the State of Arizona of dangerous conditions on the roadway." The piece of metal had allegedly been in the roadway for approximately four and one half hours, and the appeals court ruled that, if true, the city could be liable under this theory.

            The city had a duty to act "as would a reasonably careful and prudent police department in the same circumstances," including "taking action within a reasonable time to correct an obvious, if temporary, dangerous road hazard within the city limits." The scope of that duty and whether the city's officers were "negligent under the circumstances" was for the trier of fact to determine, the court concluded. McDonald v. City of Prescott, #1 CA-CV 99-0128, 2000 Ariz. App. LEXIS 40. http://www.state.az.us/co/opidx.htm

Female motorist who exposed her breasts and nipples outside her vehicle to a female and a male officer in order to show that she was not the suspect wanted in an arrest warrant (who had a tattoo on her breast) could not recover damages from the officers when she herself spontaneously engaged in the exposure and the officers did not order or demand that she expose herself in this manner then and there; officers were entitled to qualified immunity.

            A unanimous three-judge federal appeals court panel ruled that a female motorist's rights were not violated when she exposed her breasts to two officers--one male and one female--in order to show that she was not the suspect wanted in an arrest warrant for a female burglary suspect with the same name and birthdate and a chest tattoo as an identifying mark.

            A female officer stopped the motorist for speeding. Her twin nine-year-old sons were passengers in her vehicle. The officer learned, upon running a check on her driver's license that a person with the same name, date of birth, and general description was wanted on a felony warrant in another state. A male officer arrived on the scene to provide backup after the existence of the warrant was determined.

            The motorist got out of her vehicle and followed the female officer to an area behind her own vehicle and in front of the female officer's police car. The male officer was also then present. When informed of the warrant, the motorist told the female officer that she did not have any outstanding warrants in her name and had not been to Ohio, the state in which the warrant was issued. The officer then stated that there was one way to be sure that the motorist was not the person wanted in Ohio, and asked her if she had any tattoos. When she stated that she had none, the officer explained the person wanted in the warrant did have a tattoo on her breast.

            The motorist allegedly "adamantly refused" to go to the police station, telling the officers she would not go "downtown" because she had done nothing wrong. She later stated that she had been concerned about her children, and what would happen to them if she accompanied the officers to the police station. The female officer then allegedly began "insisting" that she would need to see the motorist's chest in order to confirm that she did not have a tattoo.

            While the motorist characterized the female officer's requests as "demands" to see her breasts "right then and there," she admitted that the officer never asked her to pull her shirt down. Instead, the officer only stated, "I need to see." The motorist herself grabbed the collar of her oversized tee shirt and pulled her shirt and bra down far enough to expose her breasts, including her nipples, to both officers. Seeing that the motorist had no tattoo on her breasts, the female officer radioed "as much" to her dispatcher and proceeded to write a speeding ticket. The male officer then left the scene.

            The motorist filed a federal civil rights lawsuit against the officers and the trial court ruled that they were entitled to qualified immunity from liability. The federal appeals court affirmed this ruling, while indicating that the judges were "dumbstruck at the officers' inability to better control the events surrounding this stop in order to avoid the resultant public exposure."

            Clearly, the officers were not obligated to simply believe the motorist when she stated that she was not the suspect, and let her go on her way. However, the circumstances did not empower the officers to conduct a "road-side strip search." But the officer "never asked her, or commanded her, to pull down her tee shirt." Telling the motorist to "pull down your shirt" would have been a "direct command," while "I need to see whether you have a tattoo" is "more open-ended, a statement of an eventuality which must occur before any confusion can be cleared up." The words used by the officer "left open for discussion the timing, place, manner, and extent of the search."

            It was the motorist herself who chose to "pull her shirt and bra down, she chose to pull them down far enough to expose her nipples, and she chose to pull them down while standing on the shoulder of a public street." The motorist admitted that she did not ask the male officer to leave or turn around prior to exposing her breasts. Nor did she say or do anything to indicate that she was about to expose her breasts. She did not request finding a different way of handling the situation, and did not question the propriety of exposing herself on the side of the road. She did not suggest that the female officer handle the search herself in the "relative privacy of the back of her cruiser," or even "mumble so much as an 'O.K.' to give the officers notice of what was about to happen."

            Any of these actions, rather than the "spontaneous one taken" by the motorist, would have led to the "officers exerting some level of control over the time, place, and manner of the exposure."

            Without a "scintilla of evidence tending to show that control," however, the appeals court failed to see how the motorist could "show the officers violated her constitutional rights." The motorist herself "controlled the time, place, and manner of the search," and therefore could not complain about how it occurred. Nelson v. McMullen, No. 98-6454, 207 F.3d 1202 (10th Cir. 2000).

Text: <http://www.kscourts.org/ca10/>. [Cross-reference: Defenses: Qualified Immunity; Strip Search].

CASES CITED

Bazuaye v. U.S., 41 F. Supp. 2d 19 (D.D.C. 1999).[72-73]
Bowles v. State of New York, 37 F. Supp. 2d 608 (S.D.N.Y. 1999).[68]
Brown v. City of Miami, U.S. Dist. Ct. Miami, Fla.,
                reported in The National Law Journal, p. A10 (March 27, 2000).[70-71]
Brown v. Shaner, #97-4406, 172 F.3d 927 (6th Cir. 1999).[73]
Green v. Montgomery, 43 F. Supp. 2d 239 (E.D.N.Y. 1999).[67]
Greensboro, Ex Parte, Re: Ridgeway v. City of Butler, No. 1971738, 730 So. 2d 157 (Ala. 1999).[75]
Lugtu v. California Highway Patrol, #D032518, 2000 Cal. App. LEXIS 216, 94 Cal. Rptr. 2d 113.[75-76]
Lyttle v. Brewer, 77 F. Supp. 2d 730 (E.D. Va. 1999).[71-72]
McDonald v. City of Prescott, #1 CA-CV 99-0128, 2000 Ariz. App. LEXIS 40.[76-77]
Miller v. Bd. of County Commissioners of County of Rogers, 46 F. Supp. 2d 1210 (N.D. Okl. 1999).[6970]
Montgomery v. City of Montgomery, No. 2971214, 732 So. 2d 305 (Ala. Civ. App. 1999).[68-69]
Nelson v. McMullen, No. 98-6454, 207 F.3d 1202 (10th Cir. 2000).[77-79]
Regalado v. City of Chicago, 40 F. Supp. 2d 1009 (N.D. Ill. 1999).[67-68]
Skultin v. Bushnell, 82 F. Supp. 2d 1258 (D. Utah 2000).[74]
Tsachalis v. City of Mount Vernon, 690 N.Y.S.2d 746 (A.D.N.Y. 1999).[73-74]