April, 2001 web edition

Police supervisor who dispatched officers to a field where a youth was threatening to kill himself had no liability for the youth's subsequent death based on his failure to issue detailed commands via radio to those on the scene; no "coverup" was shown simply based on his instructions to two officers to prepare a joint report rather than writing individual accounts, when he had no reason to think any crime had occurred.

            A police lieutenant dispatched a number of officers to a recreational field after learning that a young man there had threatened to kill himself. Officers on the scene found the youth holding a rifle pointing to his own chin. They talked to him, and ultimately, when it appeared he would shoot himself, struggled with him, getting the rifle away from him, although he did fire at least one shot into the air. As the struggle with him continued, he ultimately was shot and killed with a bullet from one of the officers' guns. It was later claimed by the officers that the decedent must have somehow obtained the officer's gun and shot himself, and by the decedent's family that this wasn't possible and that one of the officers must have shot and killed him, whether accidentally or intentionally.

            The decedent's estate sued the officers on the scene for violation of federal civil rights. Also included as defendants, however, were two police lieutenants. The first was the lieutenant who dispatched the officers to the field and listened to their dispatches over the radio, arriving on the scene only after the shooting and death. The second was a lieutenant otherwise uninvolved in the incident, who arrived after the shooting and death to participate in the investigation.

            A federal appeals court has held that both of these supervisors were clearly entitled to qualified immunity. It noted that while he was listening to the officers' radio dispatches, and in theory could have issued orders, the officers' dispatches did not really give a "blow-by-blow" account of what was happening. "In fact, a strong argument could be made that it would have been objectively unreasonable for" this lieutenant to have issued directives from afar in a delicate, life-and-death situation, based his orders solely on the incomplete information conveyed in scattered radio transmissions."

             The court also rejected the claim that he somehow was liable for participating in a "conspiracy" or "cover-up" of what happened. The plaintiff attempted to make much of the fact that, rather than asking two individual officers involved in the incident to write individual reports, he made them cooperate with him in preparing a joint report.

            The court noted that the lieutenant stated that he thought the officers were upset, and indeed took them to the hospital for possible treatment. "Whether or not any constitutional right is implicated by the preparation of a joint report when a supervisory officer has some reason to believe a crime has occurred," the court said, "there is no clearly established constitutional law requiring the supervisor to make sure that police officers write individual reports of an incident that the supervisor reasonably believes does not involve a criminal investigation."

            In this case, the decedent had threatened to kill himself, and the lieutenant was told that evidently he had succeeded in doing so, accidentally obtaining an officer's gun during the struggle. In these circumstances, there was nothing objectively unreasonable about how he proceeded.  The appeals court found that the second lieutenant who arrived on the scene had even less to do with the incident, and was also entitled to qualified immunity. Ford v. Moore, No. 99-9303L, 99-9305, 99-9315, 237 F.3d 156 (2nd Cir. 2001).

Text: <www.tourolaw.edu/2ndCircuit>. [Cross-reference: Arrestee Suicide/Suicide by Cop; Public Protection: Disturbed Persons].

Two troopers acted reasonably in grabbing, disarming, and restraining a man who was talking to another trooper with a knife in his hand; they could legitimately believe, based on what they saw, that the man was a threat to the other trooper's life, even if, in actuality, he only had the knife in order to cut up a chicken for lunch.

            An employee of a gaming establishment located next door to a restaurant went to the restaurant to borrow a knife to cut up the chicken which a co-worker had brought to share for lunch. A highway trooper who exited the restaurant at the same time had a drug dog with him and the employee approached the trooper to talk to him about the dog, which had "caught his attention." The trooper did not see the knife, but did "back away," possibly because the employee was "invading" his "personal space."

            Two other troopers exited the restaurant and observed the man talking to their co- worker, as well as the knife in his hand, and the trooper backing away. They believed that this was a dangerous and threatening situation, and it reminded one of them of another trooper whose throat had been cut a few years back. Believing that a confrontation was taking place, they told the man to drop the knife.

            While the man claimed that he immediately dropped it, one of the troopers claimed that the man first turned towards them, at which point one trooper grabbed his left arm and the other grabbed his right wrist. They handcuffed him with his hands behind his back. The entire incident took 30-45 seconds, and the man was frisked, questioned, and then released without any charges being made.

            The man filed a federal civil rights lawsuit against the two troopers who restrained him, claiming that the force used to restrain him was excessive.

            A federal appeals court found that the defendants were entitled to qualified immunity. Under the circumstances, even if mistaken, they could reasonably have believed that their fellow officer's life was in imminent danger. Indeed, the plaintiff conceeded that. "No reasonable and competent law enforcement officer could conclude" that the troopers's actions under these circumstances were excessive. Lawson v. Hulm, No. 99-41388D, 223 F.3d 831 (8th Cir. 2000).

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

New York appellate court reduces total damages awarded for emotional distress, false arrest, and malicious prosecution from jury's award of $250,000 to $135,000, including reduction in punitive damages from $100,000 to $50,000.

            A New York arrestee sued the county and county officials, claiming that she had suffered intentional infliction of emotional distress, false arrest, and malicious prosecution. She asserted that she experienced humiliation and a deprivation of liberty, as well as damage to her reputation when she was arrested, handcuffed, booked, fingerprinted, and then prosecuted.

            A jury awarded her $50,000 for diminution of earnings, $25,000 for loss of reputation and humilitation, and $75,000 for intentional infliction of emotional distress. It also awarded her $100,000 in punitive damages against one county official. A New York intermediate appellate court found that the award for loss of reputation and humiliation should be reduced to $10,000, since there was "little objective evidence" that the events cause any "significant damage to her reputation."

            The court also ruled that the damages awarded for emotional distress were excessive and should be reduced to $25,000, and that the punitive damages awarded "deviates materially from what would be reasonable in this case," with $50,000 being sufficient. Lynch v. County of Nassau, 717 N.Y.S.2d 248 (A.D. 2000).

Text: <www.courts.state.ny.us/reporter/Decisions.htm>. [Cross-references: Damages: Punitive; Emotional Distress; False Arrest/Imprisonment: No Warrant; Malicious Prosecution].

Psychological evaluations of officer conducted at the behest of his employer were not privileged from discovery in federal civil suit, since they were not "confidential," being disclosed to the employer.

            An Ohio police officer was being sued in federal court, and the plaintiff sought to conduct a deposition of a psychologist retained by his employer, the city, who had conducted psychiatric evaluations of the officer in connection with his employment.

            The officer sought a protective order from the court prohibiting the disclosure of the psychologist's records and testimony concerning him. He argued that any communication he had with the psychologist, as well as her records, are privileged under the psychologist-patient privilege, as recognized by the U.S. Supreme Court in Jaffee v. Redmond, #95-266, 518 U.S. 1 (1996), Full text: <www.findlaw.com/casecode/supreme.html> (psychotherapist-patient confidential communications and records are privileged from compelled disclosure under Rule 501 of the Federal Rules of Evidence).

            The court declined to apply Jaffee in the immediate case, noting that anything that the psychologist learned from the officer was based on evaluations at the behest of his employer, and she subsequently disclosed any information learned to the employer. Since the communications were disclosed to the employer, they were not "confidential." Phelps v. Coy, 194 F.R.D. 606 (S.D. Ohio 2000).

Detainment of arrestee for up to 72 hours after he was found incompetent to stand trial for purposes of evaluating whether civil commitment for mental illness was warranted did not violate his due process rights; he had no established right not to be subjected to "more onerous" conditions, as a criminal defendant, than other candidates for civil commitment.

            An arrestee, found incompetent to stand trial on a misdemeanor charge, was sent to a state psychiatric center and held for a period of up to 72 hours in order to allow a determination of whether civil commitment was warranted. He filed a federal civil rights lawsuit against the official responsible for his confinement, asserting that it was improper. This claim was rejected by a federal appeals court, which ruled that the "nature and duration" of his confinement bore a reasonable relationship to the need to evaluate his possible mental illness, and therefore did not violate his due process rights. The court also found that the defendants were entitled to qualified immunity, as it was not clearly established in 1994 that he had an equal protection right, as a criminal defendant, not to receive treatment "more onerous" than that given to other candidates for civil commitment. Charles W. v. Maul, No 98-9290, 214 F.3d 350 (2nd Cir. 2000).

Text: <www.tourolaw.edu/2ndCircuit>.

N.Y. officers did not violate man's due process rights by handcuffing him and taking him to a psychiatric hospital for evaluation on the basis of information obtained from his wife that he was a schizophrenic who was not taking his medication and was hearing voices.

            N.Y. police officers did not violate a man's due process rights when they transported him to a state psychiatric hospital to be evaluated as possible threat to himself. Officers handcuffed him, based on information given by his wife that he had a history of schizophrenia, was not taking his medication, and was hearing voices. The court noted that the state's mental hygiene law does not "provide any specific procedure or hearing prior to being transported to a hospital or psychiatric emergency program," so that the plaintiff was not entitled to any process before being transported. Mawhirt v. Ahmed, 86 F. Supp. 2d 81 (E.D.N.Y. 2000).

Police officer had grounds for brief investigatory stop of a vehicle, but once a search of the vehicle revealed no evidence of criminal activity, taking the driver to the station and holding her for hours while obtaining and executing a search warrant for her friend's hotel room was unreasonable, as was seizing and detaining for hours her mother and brother when they came to the station, in the absence of any evidence of their involvement in any crime.

            A woman ejected several friends of her daughter from being house guests after police, armed with a search warrant came to the home and discovered marijuana in their possession. The daughter and her boyfriend took the friends to a local hotel, where they rented two rooms. A police officer stopped the daughter's vehicle as it drove from the hotel, where he had received reports that drug sales were occurring. He was given permission to search the car, but found nothing illegal. He nevertheless told the daughter and her boyfriend that they needed to come to the police station, placing both of them in the squad car. The mother, a social worker for the county, heard about the stop of her daughter over a police scanner, and went to the station accompanied by her teenage son.

            When she arrived at the station, the officer asked her about alleged drug activity occurring at the hotel. She denied any knowledge of any illegal activity, but the officer told both the woman and her son that they could not leave as he was attempting to procure a search warrant for the hotel rooms, and he feared that they would warn hotel occupants of the impending search. The woman and her son were held approximately three hours, until a search of the suspected hotel rooms failed to reveal any evidence of high-volume drug trafficking, and only the remnants of a single marijuana cigarette. And, despite the complete absence of any evidence tying the woman's daughter to any illegal activity, she was not released from the police station until 6 hours had elapsed.

            The mother and her son and daughter filed a federal civil rights lawsuit in state court for false arrest, and the trial court dismissed the claims, finding that the seizure was reasonable to prevent notification of the impending search.

            An intermediate Iowa appeals court reinstated the lawsuit. While there was a justification for the original investigatory stop of the daughter's vehicle, the justification for any detention ceased when the search showed no evidence of criminal activity. The officer's actions in transporting the daughter to the police station and holding her for several hours, as well as detaining her mother and brother when they arrived, if true, violated the Fourth Amendment. The daughter's detention at the station for hours "was clearly not the brief investigatory stop" authorized by the circumstances.

            And the court noted that the persons detained were not occupants of the hotel rooms, so it did not constitute a brief detention while the search was being conducted.  "The Fourth Amendment does not permit unreasonable seizures as long as they are considered brief. The brevity of their detention is a matter to be addressed in the award of damages." Collins-Draine v. Knief, No. 98-789, 617 N.W.2d 679 (Iowa App. 2000).

Text: <www.iowabar.org/IowaCourtof+Appeals.nsf>.

Arresting officers failure to fill out a probable cause affidavit and submit it to a magistrate within 48 hours as required by Louisiana law did not entitle arrestee to damages against sheriff for his detention, as his admission within that period that he had violated his parole provided grounds to hold him in continued custody.

            A Louisiana man out on parole was arrested by city police officers for carrying a concealed weapon by a felon and for disturbing the peace through public intoxication. He was booked into the parish jail. Within 48 hours, he waived his right to a preliminary hearing on the parole violations and pled guilty, admitting that "probable cause exists to believe" that he committed a crime. He was ultimately sentenced and served his time.

            He subsequently filed a lawsuit for damages against the sheriff's office and the sheriff, alleging that after being arrested by the police, he was held in jail illegally because the arresting officers did not complete a 48-hour affidavit of probable cause and submit it to a magistrate within that time. He claimed that he told the sheriff that his detention was illegal, but the sheriff did "nothing to help him get out of jail."

            A Louisiana trial court and an intemediate appeals court were both similarly unimpressed with the plaintiff's reasoning. The appeals court noted that any omission in promptly completing the affidavit, as required by state law in cases of warrantless arrest, was the obligation of arresting officers and the sheriff could not be held liable for it. Further, the plaintiff was not harmed by this failure in any event, since his formal admission of guilt of parole violation charges within 48 hours gave the sheriff grounds to hold him. Colquitt v. Claiborne Parish Sheriff's Dept., 765 So. 2d 471 (La. App. 2000).

Jury award of $17.9 million to family of New York officer accidentally shot by his partner set aside; New York's highest court holds that the requirements of a police department internal manual cannot be the basis for civil liability by the city since it does not establish clear legal duties and is not part of a "duly-enacted body of law or regulation."

            Two New York City police officers were involved in arresting some drug suspects. One of the officers had a revolver out, pointing upward, with his index finger touching the trigger guard, because he was unsure whether the suspects were armed. In an escape attempt, one of the suspects suddenly slammed into this officer, causing the gun to fly from his hand. He reflexively grabbed the revolver and, while he was attempting to regain his grip, it discharged, resulting in his partner's death. The shooting was determined to be accidental and not in violation of departmental guidelines, and no discipline was imposed.

            The surviving wife and children of the deceased officer filed a wrongful death lawsuit against the shooting officer, the police department, and the city. The lawsuit asserted claims for negligence and violation of N.Y. General Municipal Law Sec. 205-e, which authorizes recovery for negligent failure to "comply with the requirements of any of the statutes, ordinances, rules, orders and requirements" of any city department.

            Specifically, the plaintiffs claimed a violation of Procedure 104-1(k) of the Police Department Patrol Guide, which at the time stated that to "minimize the possibility of accidentally discharging a weapon, firearms shall not be cocked and should be fired double action." At trial, there was evidence that the gun had been cocked and its hammer had been depressed, making it easier for the weapon to discharge. A jury awarded $17.9 million in damages. The highest court in New York has now agreed with an intermediate appellate court decision setting aside the jury award, and ruling that statutory liability could not be based on a violation of the Patrol Guide.

            The court noted that in most cases the "firefighters' rule" bars recovery of damages by firefighters and police officers "for the very situations that create a need for their services." One exception to this is General Municipal Law Sec. 205-e(1) allowing recovery for failure to comply with "any" governmental requirement. But the court held that this refers to a "duly- enacted body of law or regulation," and not to internal manuals such as the Patrol Guide.

            "It is not a body of law or regulation establishing clear legal duties that should serve as a basis for civil liability of municipalities" as a matter of public policy. While "some of its provisions are couched in mandatory terms, the Patrol Guide does not prescribe the specific action to be taken in each situation encountered by individual officers, but rather is intended to serve as a guide for members of the Police Department." Galapo v. City of New York, No. 138, 2000 N.Y. LEXIS 3584. [Cross-reference: Police Plaintiff: Firearms Related; Police Plaintiff: Firefighters' Rule].

New Jersey reaches $12.9 million settlement with four occupants of a vehicle who claimed they were stopped on the highway by state troopers because of "racial profiling," three of whom were shot by troopers when the vehicle began to back up while the troopers approached on foot.

            The state of New Jersey has reached a $12.9 million settlement with four occupants of a motor vehicle who claimed that they were pulled over on the highway by state troopers solely because they were minorities (three black and one Hispanic). The troopers claimed that the vehicle was stopped for speeding. They fired on the vehicle and its occupants, alleging that the driver put it in reverse as the officers approached it on foot. The driver later stated that backing up was accidental and not intended to injure the officers. While their bullets did not hit the driver, all three of the other occupants of the van were wounded, with two of them hospitalized for thirteen days and the third hospitalized for two.

            Plaintiffs in the lawsuit claimed that New Jersey state troopers stop overwhelmingly disproportionate numbers of minorities in vehicle traffic stops. The plaintiffs were on their way to a local college at the time of the incident.

            At the same time as the settlement in this case was announced, the state's attorney general ordered the dropping of criminal cases against 128 other minority defendants who claimed that their arrests were also tainted by "racial profiling." Brown v. New Jersey, U.S. Dist. Ct., Trenton, N.J., settlement reported in The New York Times, p. A12 (Feb. 3, 2001). [Cross-reference: Racial Discrimination].

Federal appeals court panel, by 2-1, rules that merely pointing a gun at the head of an unarmed arrestee, if he did not pose a threat, could constitute a violation of the Fourth Amendment even if unaccompanied by other force, and that officers were not entitled to qualified immunity, since this was "clearly established"; full federal appeals court grants rehearing to review issue.

            A retired police officer living in a rural area of California in a farmhouse saw two dogs attacking and killing his livestock in his fenced-in property, and took out his shotgun and shot both dogs, killing one and wounding the other. He then walked off his property to the public road, looking for the wounded dog. The dogs turned out to belong to his neighbor, who argued with him, and then called police. Six police cars arrived on the scene, and the ex-officer was arrested. A number of officers pointed guns at him in the process and one thrust his gun three or four feet from the arrestee's head, despite the fact that he was no longer carrying the shotgun.

            He was later released when it was determined that he had violated no law. He sued the officers and the county alleging false arrest and excessive use of force. The jury found that the length of the plaintiff's detention was reasonable under the circumstances, but divided four to four on the question of whether the force used was reasonable. The trial judge then granted judgment to the defendants as a matter of law, finding that the officers were entitled to qualified immunity.

            By a 2-1 vote, a three judge panel of a federal appeals court reversed, finding that the officers were not entitled to qualified immunity, and that pointing a gun at an unarmed arrestee's head under these circumstances could constitute excessive use of force under clearly established law.

            It was disputed whether the officers believed that the arrestee posed a threat to them or the public, with the plaintiff asserting that he was walking towards the officers in a "calm an collected manner," and that they had ample time to see that he was not carrying the shotgun. The officers claimed that he appeared "agitated" and could have been concealing a weapon, and that he posed a potential threat. Since a jury could determine that the officers' conduct was unreasonable, it was inappropriate to decide the case as a matter of law.

            The dissenting judge argued that the precise question involved in the case, whether "merely pointing a weapon at a suspect, unaccompanied by the use of physical force, can give rise" to a federal civil rights claim for violating the Fourth Amendment, had not previously been decided, and that a prior case, McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1984), relied on by the majority, was different, since other physical force was used, including throwing arrestees to the floor. The full federal appeals court has subsequently granted a rehearing en banc. Robinson v. Solano County, No. 99-15225, 218 F.3d 1030 (9th Cir. 2000), rehearing en banc granted, 229 F.3d 931 (9th Cir. 2000).

Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-reference: Defenses: Qualified Immunity].

Officer's alleged conduct of driving 57-61 miles per hour in a 25 m.p.h. zone, without lights and sirens, while responding to a non-emergency radio call, was not conduct that "shocked the conscience"; no liability for officer or employer for collision with motorist's vehicle.

            A Pennsylvania police officer was travelling in his vehicle at an "excessive" rate of speed" while responding to a non-emergency radio call concerning "assist on a suspicious vehicle parked unoccupied." Entering the street from a parking lot, a motorist made a left hand turn and the officer's vehicle collided with him, resulting in injuries. The motorist sued the the officer and the township which employed him, alleging a violation of his federal civil rights.

            These claims were rejected by the trial court. While the officer's alleged actions of driving between 57 and 61 miles per hour in a 25 m.p.h. zone without lights and sirens on a crowded roadway may have been "negligent and reckless," they did not "shock the conscience," as required for federal civil rights liability in this context pursuant to County of Sacramento v. Lewis, 523 U.S. 833 (1998). The court also found no liability on the part of the township for inadequate training. Leddy v. Township of Lower Merion, 114 F. Supp. 2d 372 (E.D. Pa. 2000).

Even if the techniques used to interview child complainants were improper and coercive, nursery school teacher indicted and prosecuted for alleged sexual abuse of children could not recover damages since these interrogation techniques did not violate her own constitutional rights; prosecutors were entitled to absolute immunity for presenting children's testimony to grand jury and at trial.

            A child attending a nursery school in New Jersey told a nurse at his doctor's office that he had been sexually abused by his female teacher. An investigator with a state child welfare agency was assigned to investigate this and similar accusations made by four other children at the school, and interviews of each of the children were conducted by the director of the child abuse unit at the prosecutor's office, and other personnel. Evidence developed during the interviews was presented to the grand jury and resulted in a total of one hundred and sixty- three criminal charges being filed in three separate indictments.

            While there initially was a conviction of the teacher on 115 counts of aggravated assault, sexual assault and other offenses, the conviction was reversed on appeal based on questions about the reliability of the methods used to interview the children. The charges against the teacher were ultimately dismssed.

            The teacher sued prosecutors and law enforcement investigators for malicious prosecution. A federal appeals court upheld summary judgment for the defendants. The plaintiff's claim that the defendants used improper and coercive interview techniques with the child witnesses, even if true, did not violate her own constitutional rights. The court noted that the only use of the allegedly improperly obtained statements against the plaintiff was the presentation of the children's testimony before the grand jury and at the criminal trial. Until the children testified against her, the plaintiff's constitutional right to due process "was not violated by the techniques used to interview the children."

            Further, the prosecutors were entitled to absolute immunity for presenting the evidence to the grand jury and at trial. Michaels v. New Jersey, #99-5486, 222 F.3d 118 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross References: Defenses: Absolute Immunity; Malicious Prosecution].

Dismissal of criminal charges on statutory speedy trial grounds was a "favorable termination" of the charges in favor of the accused, sufficient to allow them to pursue a malicious prosecution lawsuit, highest court in New York rules.

            The highest court in New York state has ruled that the dismissal of criminal trespass charges on statutory speedy trial grounds constituted a "favorable termination" of the criminal prosecution sufficient to allow a plaintiff to pursue a malicious prosecution claim. While the case involved charges initiated by a private party, the reasoning of the court would also apply in malicious prosecution lawsuits against law enforcement personnel in that state.

            A termination of criminal charges is not favorable, the court stated, if the charges are withdrawn or the prosecution abandoned as part of a compromise with the accused. In this case, the court found, the dismissal was granted as a matter of statutory right based on the prosecutor's inaction, and the evidence showed that the arrestee was "eager" to vindicate herself by attempting to prove her innocence at trial. Smith-Hunter v. Harvey, 712 N.Y.S.2d 438 (N.Y. 2000).

Federal appeals court rules that hog-tie restraints should not be used when it presents a significant risk to a suspect's health or well being because of diminished mental capacity, whether based on intoxication or a mental condition; officers were individually entitled to qualified immunity, but inadequate training claims against city could go forward in lawsuit over death of naked man who died after being restrained with hog-tie.

            Wyoming police officers got a complaint about a man running around outside naked. Officers who arrived on the scene found the naked man on the exterior landing of an apartment building, jumping up and down, yelling, and kicking his legs in the air. An ambulance was called for, and officers tried to calm the man down and persuade him to come down the steps. When he did so, he attempted to go past the officers, in the struggle which occured, the officers wrestled him to the ground and handcuffed him face down. He did not respond to questions about what kind of drugs he had taken, but instead continued to yell and flail about.

            An officer who then arrived applied a nylon restraint around the man's ankles to abate the kicking, and the ankle restraint was fastened to the handcuffs with a metal clip, subjecting him to a "hog-tie," with the separation between his ankles and wrists one foot or less." The restraint was later removed when the man appeared to calm down before the ambulance came and began CPR. The man was pronounced dead at the hospital, with an autopsy showing a large amount of cocaine in his system.

            His brother sued the officers individually and the city, as well as the police chief, arguing that his brother died from positional asphyxia and that his position while on the ground contributed to his death. The defendants argued that the death resulted solely from cocaine abuse.

            Individual officers appealed a trial court's denial of qualified immunity.

            A federal appeals court did not reach the question of whether all "hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well- being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint."

            In this case, the decedent's "diminished capacity" was obvious, and the officers "surmised" that he had been taking some kind of drug. "We conclude and hold that the Fourth Amendment protection against excessvie force includes the protection of an individual's right to be free from a hog-tie restraint in situations such as the one confronting the officers herein."

            The individual officers, however, were entitled to qualified immunity as the law on the subject was not clearly established at the time of the incident, in 1996. The appeals court upheld, however, the denial of summary judgment to the city as to its alleged failure to train the individual officers adequately.

            The trial court had cited "evidence that the City failed to train its officers on the use of hobble restraints and that the City put such restraints in its police cars. The court also noted that high ranking officials were aware of positional asphyxia attributable to hobble restraints and of a doctor's report stating that 'deaths in police custody with hog-tie restraint[s] have been reported in medical literature a number of times.'" Based on this, there was a genuine issue of whether the city was deliberately indifferent in failing to conduct training in the use of the restraints. Cruz v. City of Laramie, No. 99-8045, 99-8049, 99-8050, 239 F.3d 1183 (10th Cir. 2001).

Text: <www.kscourts.org/ca10/>. [Cross-references: Administrative Liability: Training; Public Protection: Disturbed Persons].

Sheriff had no supervisory liability for deputy's theft of arrestee's gold ring when he had established a policy for safeguarding arrestee property as well as procedures to investigate complaints, and had no prior notice of deputy's alleged propensities.

            A Connecticut arresteee surrendered personal property, including a gold ring purchased for $525, to the sheriff's department when he was placed in a lockup at the courthouse. When he was released, his ring was not returned to him. A deputy sheriff was subsequently arrested and later pled guilty to the theft of the ring, and the ring was then returned to him. He then filed a federal civil rights lawsuit against the sheriff, seeking damages for the initial theft of his ring.

            The trial court granted the sheriff's motion to dismiss, finding that the sheriff had no supervisory liability for the theft of the ring. He had no direct participation in the incident, and had instituted a policy to collect and safeguard arrestee property, as well as implementing procedures to investigate complaints. He had no prior notice of the special deputy's alleged propensities and did not "authorize, permit, or ratify" his misconduct. Miller v. Kupchunos, 106 F. Supp. 2d 340 (D. Conn. 2000). [Cross-reference: Administrative Liability: Supervision].

Officer's alleged penetration of arrestee's vagina with his finger, squeezing of her hips and kneading of her buttocks with his ungloved hand while he searched her in her open nightgown in the street before putting her in the squad car violated clearly established Fourth Amendment rights when there was no justification for the search, and she was being arrested for a misdemeanor 2-day old noise ordinance violation.

            Two officers, one a trainee, went to a woman's house to arrest her under an arrest warrant for violating a town's misdemeanor noise ordinance two days before. The woman cooperated with the arrest, but upon being told that she was to be handcuffed, asked if she could get dressed, since she was only wearing a nightgown.

            This request was allegedly denied, and as she was handcuffed, the nightgown allegedly fell open below her chest because the buttons were misssing. The officer trainee allegedly searched the woman, despite her protest that she was not wearing any underwear. In her federal civil rights lawsuit against him, she claimed that, during the search prior to seating her in the squad car, he squeezed her hips, reached inside her open dress, "swiped" one ungloved hand, palm up, across her bare genitals, and slightly penetrated her vagina with his finger. Though she said she protested this, she claimed that he continued to ignore her objections and placed his ungloved hand "up into [her] butt cheeks" and kneaded them.

            The lawsuit asserted that this all took place on the street while other officers, her husband, several neighbors, and her five children observed. A federal appeals court upheld the denial of qualified immunity to the defendant officer. The court found that the search, as described by the plaintiff, would violate the Fourth Amendment. It was "highly intrusive without any apparent justification," and there was no claim by the officer that the search was conducted in this manner "because of a perceived threat to his or the other officers' safety." In fact, the officer "could not rely upon any type of security justification for this search, in that the dress was thin and was almost completely open, making any weapons immediately apparent."

            "Firmly rooted" precedent involving strip searches and body-cavity searches, the court found, should have made it apparent to the defendant, "as a reasonable officer" that his search violated the Fourth Amendment. "It is not a new rule of law that searches involving the public exposure, touching and penetration of an arrestee's genitalia are subject to limitations under the Fourth Amendment." Amaechi v. West, No. 00-1129, 237 F.3d 356 (4th Cir. 2001).

Text: <www.law.emory.edu/4circuit>. [Cross-reference: Strip Searches].

Amaechi v. West, No. 00-1129, 237 F.3d 356 (4th Cir. 2001).[62-63]
Brown v. New Jersey, U.S. Dist. Ct., Trenton, N.J.,
          settlement reported in The New York Times, p. A12 (Feb. 3, 2001).[57]
Charles W. v. Maul, No 98-9290, 214 F.3d 350 (2nd Cir. 2000).[54]
Collins-Draine v. Knief, No. 98-789, 617 N.W.2d 679 (Iowa App. 2000).[54-55]
Colquitt v. Claiborne Parish Sheriff's Dept., 765 So. 2d 471 (La. App. 2000).[55-56]
Cruz v. City of Laramie, No. 99-8045, 99-8049, 99-8050, 239 F.3d 1183 (10th Cir. 2001).[60-62]
Ford v. Moore, No. 99-9303L, 99-9305, 99-9315, 237 F.3d 156 (2nd Cir. 2001).[51-52]
Galapo v. City of New York, No. 138, 2000 N.Y. LEXIS 3584 (2000).[56-57]
Lawson v. Hulm, No. 99-41388D, 223 F.3d 831 (8th Cir. 2000).[52]
Leddy v. Township of Lower Merion, 114 F. Supp. 2d 372 (E.D. Pa. 2000).[59]
Lynch v. County of Nassau, 717 N.Y.S.2d 248 (A.D. 2000).[53]
Mawhirt v. Ahmed, 86 F. Supp. 2d 81 (E.D.N.Y. 2000).[54]
Michaels v. New Jersey, #99-5486, 222 F.3d 118 (3rd Cir. 2000).[59-60]
Miller v. Kupchunos, 106 F. Supp. 2d 340 (D. Conn. 2000).[62]
Phelps v. Coy, 194 F.R.D. 606 (S.D. Ohio 2000).[53-54]
Robinson v. Solano County, No. 99-15225, 218 F.3d 1030 (9th Cir. 2000),
          rehearing en banc granted, 229 F.3d 931 (9th Cir. 2000).[58]
Smith-Hunter v. Harvey, 712 N.Y.S.2d 438 (N.Y. 2000).[60]