November, 2000 web edition

New York jury awards over $3 million to 51-year-old woman mistakenly arrested by undercover police officer as drug suspect; $2.75 million of award was for alleged excessive use of force by officer, who plaintiff contended did not identify himself as police and $250,000 was awarded for false arrest.

            A 51-year-old woman alleged that she was grabbed by an undercover New York police officer when she was walking to a bus to go to the dentist one morning. He allegedly dragged her to an unmarked car and forced her in, without identifying himself as police. When she resisted him, she claimed he beat her and that this resulted in various injuries on her arms and legs. The officer denied using the kind of force that would have resulted in the alleged injuries and bruising. He stated that he stopped and arrested the woman because she matched the description of a woman involved in a drug transaction, based on a radio report from another officer. He also asserted that he had identified himself as an officer.

            Charges against the arrestee were later dropped when the other officer indicated that she was not the suspect sought. She then sued the arresting officer for violation of her civil rights. A federal jury in New York awarded a total of over $3 million to the plaintiff, including $2.75 million on her claim of excessive force, $250,000 for false arrest, and $7,500 in punitive damages against the officer.

            The jury was shown photographs of bruises on the plaintiff's arms and legs which allegedly resulted from the incident. The trial court declined to allow the defendant to present evidence of his exoneration by the police department's review board, which examined the incident. An appeal was anticipated in the case. Morales v. Leone, U.S. Dist. Ct. S.D.N.Y. October 5, 2000, reported in The New York Times, National Edition, p. C26 (Oct. 6, 2000). [Cross-reference: False Arrest/Imprisonment: No Warrant].

Plaintiffs who were awarded $250,000 in compensatory damages for an officer's shooting and killing of a motorist were also properly awarded $297,645 in attorneys' fees and $13,642.40 in costs; trial court did not abuse its discretion by awarding attorneys fees to plaintiffs who retained several attorneys to work on the case.

            A Connecticut motorist was shot and killed by a police officer who was on foot patrol. The officer asserted that the motorist had attempted to strike him with his vehicle, which the motorist's family denied, suing the officer, the chief of police, and the city.  A jury found in favor of the plaintiff, awarding $250,000 in compensatory damages, but no punitive damages. The trial court then awarded $297,645 in attorneys' fees and $13,642.40 in costs. An intermediate Connecticut appeals court upheld this result, rejecting the argument that the trial court had abused its discretion in awarding this amount of attorneys' fees.  In particular, it rejected the argument that the plaintiffs were only entitled to $59,512.50 in attorneys' fees, based in part on the fact that the plaintiffs had several attorneys.

            The appeals court noted that it was not aware of any "law prohibiting a court for awarding fees for services performed by multiple attorneys who work together to prosecute a civil rights action." Laudano v. City of New Haven, #No. 18498,  755 A.2d 907 (Conn. App. 2000).

Full text: <www.jud.state.ct.us/external/suppapp/aro.htm>. [Cross-reference: Firearms Related: Intentional Use].

Plaintiff was entitled to the full $40,000 in damages found by jury in false arrest case, despite jury finding that he was 60% at fault for the damages for failure to identify himself; court rules that, since jury also found that police had no basis to arrest plaintiff at all, his failure to identify himself could not be used to reduce the city's liability.

            Two police officer engaged in undercover narcotics work in New York believed a man was behaving suspiciously and was making a "loud commotion" in the neighborhood, drawing attention to their covert narcotics operation. In lieu of arresting him, they wanted to issue a "desk appearance ticket" to him, but they arrested him when he refused to divulge his name or present identification. He sued the city for false arrest, and a jury found that the officers did not have reasonable cause to believe that he was obstructing government administration or engaging in disorderly conduct.

            At the same time, the jury found that the plaintiff contributed to the damages by refusing to give his name and date of birth, and assessed the percentage of fault as 60% on the plaintiff and 40% on the officers. They then awarded $40,000 in damages. The trial court rejected the city's argument that the damages to be paid should be reduced based on the jury's finding that the plaintiff was 60% at fault.

            "Where there is no evidence of criminality, a party has a right to refuse to respond to police inquiry," the court stated. Since the jury "determined that the police did not have reasonable cause to believe that plaintiff had committed a crime," they had "no right to issue a desk appearance ticket to plaintiff, and plaintiff had no obligation to respond to the police." The fact that he could have avoided arrest by identifying himself "is of no moment." The court therefore awarded the plaintiff the full $40,000 of damages found by the jury. Scott v. City of New York, 699 N.Y.S.2d 642 (N.Y. City Civ. Ct. 1999). [Cross-reference: False Arrest/Imprisonment: No Warrant]

Arrestee who claimed that officers beat him while he was handcuffed, despite the lack of resistance on his part, did not have to show direct monetary losses to recover compensatory damages; damages could be based on pain and suffering or emotional distress, and, even without actual injury, he might be entitled to nominal damages.

            A Georgia man was leaving a police station when an officer arrested him for disorderly conduct. In a federal civil rights lawsuit he subsequently filed, he claimed that officers then slammed his head against the pavement until he was knocked unconscious and that this was unprovoked. In the trial of the lawsuit, he did not offer into evidence any medical bills or claim that he missed work or that he incurred any other direct monetary loss as a result of the officers' alleged conduct.

            The trial court granted the defendant officers judgment as a matter of law because the plaintiff failed to present any evidence of damages. A federal appeals court has reversed, holding that the arrestee was not required to present any evidence of a direct monetary loss in order to establish that he had suffered a "compensable injury." He could, the court noted,  show compensable injury through evidence of physical pain and suffering or demonstrable mental and emotional distress. Further, even if he was not able to prove "actual injury," if he demonstrated a violation of his constitutional rights, he was entitled to seek nominal damages.

            The appeals court also rejected the argument that the officers were entitled to qualified immunity in the case on the excessive force claim, since the plaintiff contended that the officers beat him even though he was handcuffed and did not struggle with them, resist them, or attempt to flee. Slicker v. Jackson, No. 99-10592 (11th Cir. 2000).

Text: <www.law.emory.edu/11circuit/index.html>. [Cross-references: Assault and Battery: Physical; Damages: Nominal].

Prosecutor's statements to a newspaper following murder suspect's acquittal could not be the basis for a defamation lawsuit under California state law since they only expressed opinions protected under the First Amendment and could not be interpreted as statements of facts; even if defamatory, they could not be the basis for a federal civil rights lawsuit; prosecutor was a state, not county, official for purposes of a wrongful prosecution claim.

            A murder suspect was found guilty at trial, but was granted a new trial. The defendant later contended that the prosecution hired a blood spatter expert who examined four blood spots at the scene of the crime and "attempted to hide" this expert from him, because his conclusions undermined the prosecution's case and meant that the murderer was someone else. The prosecution went forward to a second trial, at which time the defendant was found not guilty by the jury. Following the acquittal, the prosecutor made a statement to a reporter disagreeing with the defense's evaluation of the genetic evidence, and stating that the case was essentially the same as at the first trial, and that "this just proves that cases, unlike fine wine, get worse rather than better, with age."

            The defendant then filed a federal civil rights lawsuit against the county, claiming wrongful prosecution and defamation under both state and federal law. The federal trial court granted summary judgment to the county, a result upheld by a federal appeals court.

            The court found that the prosecutor's statement following the verdict was protected opinion under the First Amendment, and therefore could not be the basis for liability for defamation under California state law. The statement could not be interpreted as stating any actual facts, and merely indicated the prosecutor's views. Further, even if the statements were viewed as defamatory, this would not violate any federal right of the accused, so they could not be the basis for a federal civil rights lawsuit.

            The appeals court also held that the prosecutor was a state, rather than a county, official for purposes of deciding to proceed with the criminal prosecution of the accused, so the county could not be liable under federal civil rights law for any alleged wrongful prosecution. This was because the state's Attorney General, rather than the county, had the authority to oversee the prosecutor's conduct concerning the investigation and prosecution of crimes. Weiner v. San Diego County, #98- 55752, 210 F.3d 1025 (9th Cir. 2000).

Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-references: Defenses: Absolute Immunity; Governmental Liability: Policy/Custom].

Officers were entitled to qualified immunity for using force they reasonably thought necessary to attempt to remove large 350 pound motorist/arrestee from his vehicle, even if they were erroneous in that belief.

            When a motorist pulled up to a drive-through banking window, he noticed a police car with a flashing light behind him. He did not obey a police order to get out of his truck, however, because he was blocked by the drive-through window. When he finished his banking, an officer ordered him to pull forward and informed him that he was under arrest.

            When the motorist asked for permission to drive his truck to the police department, the officer stated that he was under arrest for disorderly conduct. The motorist attempted to drive away, saying he would meet the officer at the station, but other officers used their vehicles to block his truck. The arresting officer jerked open the truck door and handcuffed the motorist, pulling on his arm by the unattached handcuff while ordering him out of the truck. The motorist could not get out of the truck, however, because the officer was pulling him off balance, and because of his size, 350 pounds, which required that he use both hands to slide himself out from behind the steering wheel.

            Other officers, therefore joined in trying to help pull the motorist out of the truck, bending his wrist backward in the process. The officers were unable to get him out because of his size, and ultimately he got himself out after one of them stopped pulling on his arm. He sued the officers for excessive force he claimed that they used in removing him from the vehicle. A federal appeals court ruled that the officers were entitled to qualified immunity. They could objectively have a reasonable belief that they were not using excessive force, even though that belief may have been erroneous. Under the circumstances, they could have believed that the motorist was resisting arrest, and that it was not unreasonable to pull and push him while bending his wrist in an effort to remove him from the truck. McGruder v. Heagwood, No. 99-1238, 197 F.3d 918 (8th Cir. 1999).

Officers' actions in detaining an autistic youth for questioning after he reportedly acted strangely while trespassing in a homeowner's garage was a proper investigatory stop; ensuing confrontation with youth and his subsequent arrest for assaulting an officer were not a violation of either the Fourth Amendment or federal disability discrimination statutes.

            A man encountered a tall, skinny, shirtless teenager walking up his driveway and entering his garage. The teenager walked up to a cage in the garage containing a number of kittens and started talking incoherently to them, making animal noises and reaching into the cage. The youth did not respond to inquiries from the homeowner, including a request for his name, but did ultimately stated, in response to questions about where he lived, first "Death Valley, California," and then "In Hell."

            The homeowner was ultimately able to back the youth out of his garage and down his driveway, where further attempts to communicate resulted in the teenager screaming out the names of professional wrestlers. The homeowner called 911 and police arrived on the scene. They ultimately found the teenager, who had wandered away at the time, and found him unresponsive. He sat on an officers motorcycle without permission and then pushed an officer when the officer pushed him off the bike. A struggle ensued during which the youth resisted the officer, spit on him, and bit him.

            Several other officers assisted in subduing the youth. Ultimately, his parents arrived on the scene and informed the officers that the boy was autistic. A further brief struggle with the boy followed. He was charged as a juvenile for assaulting officers, but released to his parents, since the officers believed that a night in the detention center would be detrimental to him given his mental disorder and aggressive behavior.

            A federal civil rights lawsuit was filed against the officers and the county, alleging a violation of the Fourth Amendment right to be free of unreasonable seizure, as well as claims of excessive force, and disability discrimination in violation of the Americans With Disabilities Act (ADA).

            A federal appeals court upheld the rejection of all of these claims.

            It found that the first officer's initial attempt to detain the youth to ask him some questions was a proper investigatory stop. The officer had been informed that the youth had trespassed onto private property and also that he had seemed to not be able to comprehend where he was. The officer also had reason to suspect that the youth may have been intoxicated, based on a statement made to him by a witness on the scene that the boy might be "on drugs or drunk" and was "acting weird or crazy and just went running through the woods." It was therefore reasonable for the officer to stop the teenager and try to "assess the situation."

            The appeals court also found that the use of force was objectively reasonable under the circumstances. The officer's action in pushing the youth off of his motorcycle was not excessive, since he was "surely not constitutionally required to permit an individual suspected of being intoxicated and having committed a trespass to control his police vehicle while" conducing an investigatory stop. The ensuing confrontation was also proper, in that the officers responded to the youth's own use of force against them. Despite his "fierce resistance," the officers did not pepper spray him or use their batons against him, and ultimately four officers were required to restrain him and stop him "from harming not only the officers but himself."

            The officers were never told by the youth that he was autistic. "Moreover, in the midst of a rapidly escalating situation, the officers cannot be faulted for failing to diagnose" it themselves. Indeed, "the volatile nature of a situation may make a pause for psychiatric diagnosis impractical and even dangerous." Even after his parents informed the officers of the youth's disorder, the officers acted reasonably. "Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual."

            Finally, the appeals court found no merit in the disability discrimination claim. Since the officers acted reasonably under the totality of the circumstances, including taking the youth's disability into account once it was known, they did not discriminate against him on the basis of his disability. He was "not arrested because of his disability," but rather because there was probable cause to believe that he assaulted a police officer." Therefore, the "stop, the use of force, and the arrest" were not by reason of his disability, but because of his "objectively verifiable misconduct." Such "reasonable police behavior is not discrimination." Bates v. Chesterfield County, Va., #99-1663, 216 F.3d 367 (4th Cir. 2000).

Text: <http://www.law.emory.edu/4circuit>. [Cross-references: Assault and Battery: Physical].

Police officers who forcibly broke down the door to a man's apartment without a warrant and entered to arrest him for domestic battery were entitled to qualified immunity; even though the facts did not adequately indicate the existence of exigent circumstances justifying a warrantless entry, they could reasonably have thought it did, based on a 911 call by a woman in the apartment which was twice disconnected.

            Police officers broke down the door to a man's apartment without a warrant, and arrested him for domestic battery. They took this action in response to a disconnected 911 call from a woman at the apartment. The 911 dispatcher had called back, and a woman had answered, but the phone was then taken away from her.

            The woman who placed the call claimed that she had not said or implied to the 911 dispatcher that she was being beaten or that there was any emergency at the residence. The arrestee sued the officers for violation of his federal civil rights.

            The officers stated that they gave three warnings, and knocked for several minutes before forcibly entering, and that they saw marks on the woman's arms consistent with her being beaten or shoved (which the plaintiff also denied).

            Granting qualified immunity to the defendant officers, a federal trial court first stated that if the facts were as stated by the plaintiff, the circumstances did not support a finding of exigent circumstances justifying a warrantless entry into the apartment. The plaintiff claimed that the officers broke down the door after only a few knocks without identifying themselves or explaining the purposes of their visit, on the basis of a 911 call where the caller did not identify herself.

            However, the trial court also found that the "unlawfulness of the alleged conduct would not have been apparent," in light of the 911 call, which a "reasonable officer might have plausibly thought" showed that exigent circumstances existed. In this case, "evidence that a woman's 911 call was twice disconnected would be enough to explain a reasonable mistake about the existence of exigent circumstances." The defendant officers were therefore entitled to qualified immunity. Sanders v. Marovich, 102 F. Supp. 2d 926 (N.D. Ill. 2000). [Cross- reference: Defenses: Qualified Immunity; False Arrest/Imprisonment: No Warrant].

Jury award of $120,000 to New York arrestee upheld when the identification of the suspect sought for a crime was at issue; officers could not be said, as a matter of law, to have acted reasonably in making the arrest.

            A New York man was arrested by police officers on the basis of information given to them by a private individual. He later sued the city for false arrest.

            Upholding an award for $120,000 for false arrest against the city, an intermediate New York appellate court noted that "ordinarily, 'information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest,'" but in this case "the identification of the accused was at issue."

            Because of this, it could not be said, as a matter of law, that the officers acted reasonably in arresting the plaintiff. The jury's verdict was not against the weight of the evidence presented, and the amount awarded did not "deviate materially from what would be reasonable compensation," so the jury's award was upheld. Mercado v. City of New York, 703 N.Y.S.2d 283 (A.D. Dept. 2000).

Thirty-minute detention of Hispanic male in handcuffs in police vehicle constituted a "de facto arrest" requiring probable cause, rather than an investigatory stop merely requiring reasonable suspicion when he did not have the name or birthdate of the suspect sought in a shooting and no weapon was found during a search.

            After a shooting took place at a Florida high school, a description of the suspect sought was issued to officers. The initial description of a "Puerto Rican male" was later revised to indicate that a "white male" with a specific name was sought. Deputy sheriffs who had received both descriptions approached a vehicle in which a Hispanic male was present, and ordered both him and his wife, who was driving the car, to exit the vehicle. The stop was initially made because the couple was in a white Honda, the same type of car believed to be driven by the suspect.

            They were placed in a police vehicle for half an hour, and the husband was placed in handcuffs. They were ultimately released after an officer involved in the investigation at the high school arrived on the scene and determined that the male was not the person sought. The detainee sued the county sheriff for false imprisonment and battery.

            The jury returned a verdict in favor of the sheriff, after the trial court instructed it that "reasonable suspicion" was the legal standard that the deputies had to meet in this case, rejecting the plaintiff's argument that the jury should be told that the deputies had to have probable case to continue detaining the plaintiff after a stop based upon the report of the shooting.

            Reversing for a new trial, an intermediate Florida appeals court ruled that the detention "went beyond the point" which was reasonable to confirm or allay the officers' suspicions. The officers found no weapons during their search. The name on the detainee's driver's license and his birth date did not match that of the suspect sought, and the officers were no longer on the lookout for a Hispanic male, but for a white male, after the second description was issued. Under these circumstances, holding him beyond a brief investigatory stop was a "de facto arrest, which required probable cause, particularly considering that he was in handcuffs. Melendez v. Sheriff of Palm Beach County, No. 98-1869, 743 So. 2d 1145 (Fla. App. 1999).

Federal appeals court rules that city's decision to deny a newspaper's request to have a hyperlink to its website on the city's website, if motivated by the viewpoint of the newspaper's website, may be violative of the First Amendment.

            Because a substantial number of law enforcement agencies have websites with hyperlinks to other organizations (such as AELE's site), "unlawful" censorship becomes an issue -- especially when the denied link is to an organization that is critical of the police or sheriff.

            A recent decision of the U.S. Court of Appeals, Sixth Circuit, sheds light on the censorship issue.

            The "Putnam Pit," a small free tabloid newspaper in the city of Cookeville, TN, frequently criticized city government and acted as a "self-appointed eye on government corruption." The newspaper also had a website on the Internet, located at http://www.putnampit.com. The newspaper sued the city, alleging violation of its federal civil rights, specifically its First Amendment rights, when it refused to establish a hyperlink from the city's website to the Putnam Pit website.

            The U.S. Court of Appeals for the Sixth Circuit recently held that denying the request for such a hyperlink could constitute a violation of the First Amendment, if based on the viewpoint of the newspaper.

            At the time the newspaper requested the link, the city website had links to several other for-profit and nonprofit entities, including a local college, two Internet service providers, a law firm, a local computer club, a local manufacturer, and a site with information about the city.

            The city denied the request on the basis that the newspaper and its website were "very controversial." The appeals court agreed that the city's website was not a traditional "public forum" for First Amendment purposes, such as a public street or sidewalk might be. Nor was it a "designated public forum," where the city had intentionally opened up a forum for communication among all members of the public. At the same time, establishing the website and allowing hyperlinks to some private entities established a "nonpublic forum."

            In such "nonpublic forums," government may "impose restrictions if the regulation is reasonable," but "may not discriminate based upon the viewpoint of the speaker."

            Concretely, this meant that while the newspaper publisher had no "entitlement" to a link to the city's website, he "may not be denied one solely based on the controversial views he espouses, without regard for the forum's purpose and structure."

            The city had a legitimate interest in allowing only links that were consistent with the purpose of the site -- "providing information about city services, attractions, and officials," but could not impose such a restriction on the basis of viewpoint.

            The panel said: "In both designated public fora and nonpublic fora, the government may not discriminate based upon the viewpoint of the speaker. [...]  The city's establishment of a policy to limit the pool of persons who might be linked to the city's Web page is reasonable. The city has legitimate interests in keeping links that are consistent with the purpose of the site -- providing information about city services, attractions, and officials." [...]

            "Nevertheless, the requirement that websites eligible to be linked to the city's site promote the city's tourism, industry, and economic welfare gives broad discretion to city officials, raising the possibility of discriminatory application of the policy based on viewpoint." [...]

            "The city's actions, some of which appear to be tied to the city's interests, and others which appear less clearly relevant to the purpose of the city's website, lead us to REVERSE the district court's grant of summary judgment because [plaintiff] has raised a material issue of fact regarding whether the city discriminated against him and his website based upon viewpoint." Putnam Pit, Inc. v. City of Cookeville, #98-6438, 221 F.3d 834 (6th Cir. 2000).

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

Fact that a portion of school property was being used as a polling place did not convert the remainder of the premises into a public forum; police chief did not violate plaintiff's First Amendment rights by arresting her when she refused to leave school property where she had been collecting signatures on a petition on election day.

            Two persons on the grounds of a public school in Missouri on election day collecting signatures on an initiative petition drive. A special election for state representative was being held and the school was designated as a polling place. The school principal asked them to leave and one of them was arrested for refusal to do so. They sued the city police chief, who made the arrest, enforcing their ejectment from school property, claiming that this action violated their First Amendment rights.             Rejecting this claim, a federal appeals court found that the portion of the property where the plaintiffs were collecting their signatures was not a public forum despite the designation of the school as a polling place on that day. The remainder of the school building remained a nonpublic forum, except for those portions of the school that were necessarily open for voting purposes. School officials had the right to require visitors to request permission before using school property. Embry v. Lewis, No. 99-2238, 215 F.3d 884 (8th Cir. 2000).

Text: <www.wulaw.wustl.edu/8th.cir>.

Motorist's meritless "police brutality" lawsuit against officer, in which he tried to bribe witnesses to give fabricated testimony, was deliberately intended to injure the officer; debt arising from officer's lawsuit against the motorist for "vexatious litigation" therefore could not be discharged in bankruptcy.

            When a member of the public brings a meritless police brutality lawsuit against an officer, and the officer sues that individual for "vexatious litigation," can the debt which a judgment in that subsequent lawsuit results in be discharged through bankruptcy? "No," according to a recent decision of a federal bankruptcy court in Connecticut.

            A motorist driving a pickup truck was stopped by an officer after he was observed dumping the contents of several buckets into a trash receptacle. The officer was concerned because human body parts had recently been deposited in public receptacles in the area. When it was determined that the motorist had been dumping leaves, but did not have insurance or registration for his truck, no arrest was made, but towing of the vehicle from the scene was arranged. The motorist subsequently filed a "police brutality" lawsuit in state court, claiming that the officer had assaulted him.

            Two prospective witnesses for the motorist informed police that he had offered to "buy" their testimony, and he was subsequently arrested and convicted of witness tampering, and withdrew his lawsuit. Evidence supporting his arrest included recorded conversations between him and the witnesses.

            The officer then filed a lawsuit against the motorist, alleging that the civil rights lawsuit constituted "vexatious litigation." Two weeks later, the motorist filed a chapter 7 bankruptcy, seeking to avoid any debt arising out of the officer's lawsuit. The bankruptcy court ruled that the officer satisfied the burden of demonstrating that he had sustained some injury from the motorist's lawsuit, since he showed that a medical condition (Crohn's disease) which he previously suffered from had reappeared after the lawsuit was filed, which was attributed to stress. It further held that the evidence that the motorist had tried to bribe witnesses into giving fabricated testimony supported the conclusion that he deliberately intended to injure the officer and knew that he had filed a meritless lawsuit which was "willful and malicious."

            Debts arising from such willful and malicious misconduct may not be discharged in bankruptcy. Amaranto, Debtor, In Re,  252 B.R. 595, 2000 Bankr. LEXIS 1029, 2000 WL 1285632, Bankr. L. Rep. (CCH) P78,268 (Bankr. D. Conn. 2000).

Officers did not owe arrestee a duty to conduct a more thorough search which would have found a cigarette lighter in her coat, so that they could not be liable, on that basis, for her injuries when the lighter set her coat on fire; factual issues precluded summary judgment on her claim that they ignored her screams for help once the fire began.

            A woman arrested for criminal trespass to a motor vehicle was subjected to a search by a female officer once she was in custody. No weapons were found and no articles were taken from her at the time of the search. At the station, her left hand was cuffed to the wall of an interrogation room. She was screaming and yelling at officers, and was told to quiet down. A chair was removed from the room after she threw it.

            Following this, she took her coat off her right arm and tried to put it under herself as she began to sit on the floor. Before she got to the ground, she noticed a fire, and that she was burning. A cigarette lighter in her coat pocket allegedly ignited when she tried to remove her coat. She later explained that she had previously noticed that the lighter continued to release butane and burn even after attempts to extinguish it. She did not tell any of the officers that the lighter was in her pocket.

            She later sued officers, claiming that they violated her Fourth Amendment rights by failing to conduct a more thorough search and by handcuffing her to the wall. She also claimed that no one came to her aid for 10-15 minutes despite her screams, while officers asserted that they came to her assistance as soon as they heard her screaming. She suffered several injuries in the fire.

            The trial court ruled that the officers were entitled to qualified immunity on the Fourth Amendment claims. While police can lawfully conduct an inventory search, there is no clearly established law indicating that such a search is required or that officers owe a "constitutional duty to the arrestee to conduct a reasonable search" for the purpose of protecting the arrestee from injury. "The plaintiff has failed to present any authority to suggest a clearly established right to a more invasive search than a pat-down, or that any reasonable police officer would know that handcuffing a loud, abusive arrestee to a wall violated her constitutional rights." The court denied defendant officers qualified immunity on claims that they failed to respond to her cries for help, however, since there were disputed factual issues. "There obviously would be no immunity for failing to respond to plaintiff's cries that she was on fire" while in custody. Warren v. Swanson, 69 F. Supp. 2d 1047 (N.D. Ill. 1999).

Trial court could not presume that police officers' allegedly selective enforcement of criminal laws against the plaintiff were racially motivated; race discrimination lawsuit rejected, even if plaintiff's beliefs were sincerely held, in the absence of factual evidence to support them.

            A woman arrested by New York police officers sued them, asserting that she was selected for arrest based on her race. The trial court stated that, while it "does not doubt Plaintiff and her mother" sincerely believed that "this incident may have been racially motivated," there was no "factual basis" presented to support the claim.

            There were no facts showing selective prosecution or that the plaintiff was treated differently than other "similarly situated persons." Even if "selective treatment existed," there was nothing to establish that "it was motivated by an intention to discriminate on the basis of an impermissible racial consideration." The trial court could not "simply presume that the arresting officers' attitudes were racially biased without a basis in fact for such a conclusion," and therefore rejected the lawsuit in its entirety. Lane v. Shulman, 75 F. Supp. 2d 35 (N.D.N.Y. 1999).

Police chief was not entitled to qualified immunity for forcing bartender to submit to a frisk search of his person when there was no reasonable objective suspicion that the bartender was dangerous or had committed any crime; chief allegedly knew that bartender only pulled a pistol in self-defense after bar patron threatened to kill him for macing him while ejecting him from the premises.

            A police chief summoned to a bar by a report of a disturbance there placed one patron under arrest for having caused property damage in the bar. The bartender on duty, a former military police commander personally known to the police chief, had ejected this individual from the bar after he harassed a female patron, and had displayed a pistol to that patron when he returned, threatening to kill whoever maced him (which was the bartender).

            Other officers arrived on the scene, and the bartender, then alone in the closed premises, consented to their entry and to a search of the premises. When the search revealed a night stick and two empty mace containers, he revoked his consent to their presence and asked them to leave. He also denied the police chief's request that he consent to a body search. One of the other officers drew his gun on the bartender, and he was ordered to submit to a search. The bartender then volunteered that he had a pistol in a holster clipped onto his trousers' waistband. The weapon was seized, and he was placed under arrest for carrying a concealed weapon.

            The weapon was ultimately suppressed and the criminal prosecution against the bartender was dropped, with the trial court finding that the evidence was the fruit of an illegal search. The search was illegal, the court ruled, because there was no evidence that the officers felt that their safety was at risk or that the arrestee made any threats or took any action that could lead them to feel threatened. He subsequently sued the police chief and the other officers present for violation of his federal civil rights.

            The trial court granted summary judgments to the defendants, finding them entitled to qualified immunity. A federal appeals court reversed as to the police chief. The court reasoned that the police chief, assuming the plaintiff's allegations were true, knew that the plaintiff had utilized the weapon in self-defense, as authorized under state law, and legally carried a concealed weapon under the circumstances. Further, the police chief had no objectively reasonable suspicion that the plaintiff was potentially dangerous, as required to support a frisk search.

            The appeals court stated that the defendant police chief, according to the plaintiff's allegations, "elected to treat the crime victim as a criminal offender, on the apparent strength of vague accusations made by unidentified intoxicated persons in the club's parking lot" that the bartender had brandished a firearm around the barroom. The police chief knew that another man or men had incited disturbances at the bar, damaged property, and threatened the bartender, which compelled the bartender to order them from the premises and to file a criminal complaint against one of them.

            It upheld qualified immunity for another officer present at the scene, however, who merely responded to the police chief's request for assistance and who had no knowledge of the events which had occurred before his arrival on the scene. Painter v. Robertson, #98-3340, 185 F.3d 557 (6th Cir. 1999).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-references: Defenses: Qualified Immunity].

Amaranto, Debtor, In Re,  252 B.R. 595, 2000 Bankr. LEXIS 1029,
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Bates v. Chesterfield County, Va., #99-1663, 216 F.3d 367 (4th Cir. 2000).[166-168]
Embry v. Lewis, No. 99-2238, 215 F.3d 884 (8th Cir. 2000).[171-172]
Lane v. Shulman, 75 F. Supp. 2d 35 (N.D.N.Y. 1999).[173-174]
Laudano v. City of New Haven, 755 A.2d 907 (Conn. App. 2000).[163-164]
McGruder v. Heagwood, No. 99-1238, 197 F.3d 918 (8th Cir. 1999).[166]
Melendez v. Sheriff of Palm Beach County,
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Mercado v. City of New York, 703 N.Y.S.2d 283 (A.D. Dept. 2000).[169]
Morales v. Leone, U.S. Dist. Ct. S.D.N.Y. October 5, 2000,
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Painter v. Robertson, #98-3340, 185 F.3d 557 (6th Cir. 1999).[174-175]
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Weiner v. San Diego County, #98-55752, 210 F.3d 1025 (9th Cir. 2000).[165-166]