August, 2001 web edition

U.S. Supreme Court rejects "catalyst theory" for the award of attorneys' fees in federal lawsuits; a plaintiff, in order to be entitled to an attorneys' fee award must receive a court judgment on the merits or a court-ordered consent decree; a voluntary change in the behavior of the defendant will not suffice.

            In an important decision on the awarding of attorneys' fees in federal lawsuits, the U.S. Supreme Court has rejected the argument that plaintiffs can qualify to receive such awards as "prevailing plaintiffs" on a "catalyst theory," without being awarded either a judgment on the merits or a court-ordered consent decree. While the immediate case involved alleged violations of the federal Fair Housing Amendments Act and Americans With Disabilities Act against a state welfare agency, rather than a federal civil rights claim under 42 U.S.C. Sec. 1983 against law enforcement defendants, the reasoning of the Court's opinion would appear to be equally applicable to Sec. 1988 claims for attorneys' fees in Sec. 1983 cases.

            The "catalyst theory," which a number of federal appeals courts had adopted, awarded attorneys' fees to a plaintiff in instances where the filing of the lawsuit arguably brought about a voluntary change in the defendant's conduct, and the plaintiff therefore arguably achieved their goals or obtained their desired relief without the court ruling on the merits of their claim.

            The Supreme Court ruled that the "catalyst theory" is not a permissible basis for the award of attorneys' fees under the FHAA and ADA. Parties in litigation in the U.S. are expected to bear their own attorneys' fees in the absence of an "explicit statutory authority" for an attorneys' fee award. While Congress has employed the legal term "prevailing party" in numerous statutes authorizing awards of attorneys' fees, the Court noted, a "prevailing party" is "one who has been awarded some relief by a court." Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848, 121 S. Ct. 1835 (2001).

Text: <www.findlaw.com/casecode/supreme.html>.

Military police officer who shoved protester into a van while arresting him at the scene of a speech by the U.S. Vice President at a military based was entitled to qualified immunity; U.S. Supreme Court rules that inquiry on qualified immunity is whether an officer would have clearly known that his use of force was improper under the particular circumstances faced, not merely whether the use of force is ultimately judged reasonable.

            A military police officer was sued for alleged federal civil rights violations by an animal rights demonstrator he arrested during a speech by then Vice President Gore at an army base. The plaintiff claimed, among other things, that excessive force was used against him in the process of the arrest.

            In this case, Katz v. United States, #98-16298, 194 F.3d 962 (9th Cir. 1999), full text: <http://www.ce9.uscourts.gov/opinions>. cert. granted sub. nom., Saucier v. Katz, #99- 1977, 121 S. Ct. 480 (2000), an appeals court refused to grant the defendant officer qualified immunity, based on the plaintiff's claim that the officer shoved him into a van "roughly." The appeals court ruled that the test for determining, as a factual matter, whether the officer's use of force was objectively reasonable, as a jury would do following trial, was identical with a required step in the qualified immunity analysis--determining whether a reasonable officer could have believed, in light of the clearly established law, that his conduct was lawful. Under this analysis, the appeals court found that the officer was not entitled to qualified immunity,  but that instead a jury should decide whether the amount of force used was appropriate under all of the circumstances.

            The U.S. Supreme Court has now held that this analysis was improper. Instead, if the law did not put an officer on notice that his conduct would be "clearly unlawful," summary judgment based on qualified immunity is appropriate.

            "A court required to rule upon the qualified immunity issue must consider, then, this threshold issue: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" If no constitutional right would have been violated were the allegations established, "there is no necessity for further inquiries concerning qualified immunity." But if a violation could be argued, the next step is to ask whether the right was "clearly established," a question that must be examined "in light of the specific context of the case, not as a broad general proposition."

            It is not sufficient, the Court emphasized, just to say that it is clearly established that the Fourth Amendment prohibits the use of objectively unreasonable force, but rather, to defeat qualified immunity, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right" in the situation faced. In this case, the Court found, the officer did not know the "full extent of the threat" the plaintiff posed or how many other persons there might be who, in concert with the plaintiff, "posed a threat to the security of the vice president." It "cannot be said there was a clearly established rule that would prohibit using the force petitioner did to place respondent into the van to accomplish these objectives."

            The Court noted that it was uncontested that the officer's "shove" of the plaintiff into the van was "not so excessive that" he suffered "hurt or injury." The officer was therefore entitled to qualified immunity, given the "urgency" of the need to protect the vice president and restore order. Saucier v. Katz, No. 99-1977, 121 S. Ct. 2151 (2001).

Text: <www.findlaw.com/casecode/supreme.html>. [Cross-references: Assault and Battery: Physical; Defenses: Qualified Immunity; First Amendment].

Officer was entitled to qualified immunity from claim that he kicked an arrestee "very hard" in his foot while making a custodial arrest for a vehicle offense.

            A New Mexico motorist claimed that during his custodial arrest for a vehicle offense, the arresting officer kicked him "very hard" in his foot, resulting in a bone spur injury, although he did not resist arrest. A federal appeals court has ruled that the defendant officer was entitled to qualified immunity on the excessive force claim.

            The claim that the officer "kicked his foot 'very hard' does not contravene the Fourth Amendment's reasonableness standard. In reviewing excessive force claims, we acknowledge that '[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chamber, violates the Fourth Amendment'." In making an arrest, officers may "use some degree of physical coercion or threat thereof to effect it." The court cited Dixon v. Richer, 922 F.2d 1456 (10th 1991) (noting that what the plaintiff characterized as a "kick" could be characterized as a "reasonable act" intended to prepare arrestee for a pat down). Gross v. Pirtle, No. 00-2130, 245 F.3d 1151 (10th Cir. 2001).

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

Federal jury awards $50,000 in damages to motorist allegedly stopped without justification and illegally searched and battered by officer.

            A black trucker from Georgia claimed, in his civil rights lawsuit, that he was stopped by an Ohio highway patrolman on a concocted basis of making an improper lane change. When the motorist refused to sign the ticket, he was also charged with resisting arrest, and the officer allegedly "battered" him. All charges were later resolved in favor of the motorist.

            A federal jury found that there was no legitimate reason for the initial stop and that the officer was liable for an illegal search and battery of the plaintiff, awarding him $25,000 in compensatory and $25,000 in punitive damages. Morrison v. Simmons, No. 98-CV-560, U.S. Dist. Ct. Dayton, Oh., June 2, 2001, reported in The National Law Journal, p. A7 (June 25, 2001). [Cross-references: Search and Seizure: Vehicle].

Vehicle passenger who negotiated the return of some of his personal papers seized by an officer during a vehicle stop was not a "prevailing party" in his federal civil rights lawsuit when there was no settlement on the constitutional claims concerning the legality of the search and seizure; standard for award of attorneys' fees was the same under Massachusetts state law as it was under federal statute.

            A Boston police officer stopped a vehicle and ultimately arrested the driver on an outstanding fugitive warrant. The officer also searched and questioned a passenger in the vehicle because he resembled the person pictured on the driver's photo identification. During a search of the passenger, identification bearing a different name than the one the passenger gave was found and seized by the officer, as well as some personal papers and files, including the death certificate of the passenger's mother and some mortgage papers.

            Following alleged repeated refusals by the police department to return the seized items, the passenger filed a federal civil rights lawsuit seeking their return and charging that the search and seizure was unlawful. After some of the items were returned following negotiations between the parties, the plaintiff passenger voluntarily dismissed his lawsuit.

            He did, however, also then file a motion seeking an award of attorneys' fees under 42 U.S.C. Sec. 1988, claiming to be a "prevailing party." The trial court has rejected that claim, noting that there had been no enforceable judgment, settlement, or agreement on the central constitutional issues in the case. Further, while the "catalyst" doctrine was still in effect within the First Circuit at the time of the court's decision, Rivera-Rosario v. U.S. Dep't of Agric., #99-1553, 202 F.3d 35 (1st Cir. 2000), full text: <http://www.law.emory.edu/1circuit>, this doctrine requires, the trial court noted, "an enforceable judgment or comparable relief through a consent decree or settlement, which was not the case. Additionally, some of the plaintiff's belongings are still being retained by the police.

            The court further held that the meaning of "prevail" was the same for purposes of Massachusetts Gen. Laws ch. 12 Sec. 111 as it is for 42 U.S.C. Sec. 1988, so the plaintiff was not entitled to attorneys' fees under state law any more than he was under federal law. Richardson v. City of Boston, 135 F. Supp. 2d 60 (D. Mass. 2001).

N.Y. court finds that $150,000, rather than $500,000 award by jury, was the maximum permissible award for past pain and suffering for plaintiff in false arrest lawsuit who suffered a torn rotator cuff but was able to work without corrective surgery and control his pain with aspirin.

            A New York arrestee was awarded $500,000 for past pain and suffering by a jury in his false arrest and civil rights lawsuit, based on his having sustained a torn rotator cuff during the arrest. A New York intermediate appeals court has ruled that an award of $150,000 for the past pain and suffering was the maximum amount a jury could have reasonably awarded as a matter of law, given the fact that "although the injury had limited the ability of plaintiff to work as a farmer and continued to cause him pain, he was able to work without corrective surgery and was able to control his pain with aspirin." The court therefore ruled that it would grant a new trial on damages for past pain and suffering only, if the plaintiff does not stipulate to a reduction to $150,000. Hafner v. County of Onondaga, 723 N.Y.S.2d 574 (A.D. 2000).

Text: <www.courts.state.ny.us/reporter/Decisions.htm>.

Jury award in shooting by off-duty officer reduced from $29 million to $3.095 million; city's "bad-faith" failure to make payments under structured settlement results in court order accelerating payment of entire amount.

            A pedestrian shot by an off-duty New York police officer while walking near a bank which was robbed was awarded $29 million by a state court jury. Later decisions by an intermediate state appeals court and agreement between the parties have reduced the damages to $3,095,558.64, which was to be paid out over time in a structured settlement. Finding that the city's "prolonged failure" to comply with the amended judgment was not the result of "excusable neglect," but rather part of a "bad-faith effort to delay compliance for monetary advantage, the appeals court has now ordered the city to accelerate payment of the entire amount of the judgment. Summerville v. City of New York, 723 N.Y.S.2d 208 (A.D. 2001).

Text: <www.courts.state.ny.us/reporter/Decisions.htm>. [Cross-references: Firearms Related: Intentional Use; Off-Duty/Color of Law].

A police dog is not a "person" who can be sued for violation of civil rights under color of state law; federal appeals court also upholds enforceability of plaintiff's release agreement which barred his suit against officer.

            Can a police dog be sued for damages for violation of federal civil rights? A federal court has said no, pointing that 42 U.S.C. Sec. 1983 imposes liability only on any "person" who acts under color of state law. Further, while another federal statute, the Dictionary Act, 1 U.S.C. Sec. 1, identifies several species of non-human "persons"--including corporations, partnerships, societies and joint stock companies--"dogs are not on this list, whether or not they act under color of state law."

            The ruling came in a lawsuit filed by an Indiana man who alleged that the police K-9 dog, Frei, attacked him "without warning" and that a police officer then shot him after he had dropped his own weapon and lay unarmed on the ground. The officer involved in the incident stated that the plaintiff fled from him after being stopped for speeding and then opened fire with an unlicensed handgun, and that use of the dog was part of the force necessary to subdue him. The plaintiff pled guilty to attempted battery with a deadly weapon, possession of a handgun by a convicted felon, and possession of a handgun within 1,000 feet of a school.

            The appeals court also speculated, in its decision about whether a ruling that the dog was a "person" who could be sued would result in the dog having to be served with process, having the right to retain an attorney or else engage in "self-representation," and pointed to a prior ruling that a cat is not a "person" for purposes of the 14th Amendment, 710 F.2d 1542 (11th Cir. 1983). It also noted that the only possible assets that K-9 Frei had which the plaintiff could hope to recover were his awards for valor.

            The court's opinion also found it unlikely that an award of damages would be available against the dog even if he were held to be a person, since, under Anderson v. Creighton, 483 U.S. 635 (1987), "if a reasonable person in the defendant's position would not have understood that what he was doing violated the Constitution, damages are unavailable. Must we then ask whether a reasonable dog in Frei's position should have understood that he was violating" the plaintiff's constitutional rights.

            The court rejected the argument that the city could be held responsible vicariously for the actions of its dog as an "employee," noting that there is no vicarious liability under 42 U.S.C. Sec. 1983, and that the dog was not an "employee" in any event. It also rejected a "failure-to-train" claim against the city, and noted that under Indiana state law, the plaintiff could only sue a dog's owner, and not a dog.

            Claims by the plaintiff against the police officer who arrested him were barred by a "mutual release" he previously signed, which the appeals court ruled was enforceable. The court rejected the argument that enforceability of the release depended on the plaintiff obtaining a better plea bargain than the one he received, since the release is silent on that issue. Dye v. Wargo, No. 00-3250, 2001 U.S. App. LEXIS 12102 (7th Cir.).

Text: <www.kentlaw.edu/7circuit/>. [Cross-references: Defenses: Release Agreements].

$9.9 million settlement in lawsuit for false arrest/imprisonment and defamation brought by couple arrested in their home without a warrant and charged with multiple child sexual molestation offenses, only to have most of their accusers recant that accusation even before a preliminary hearing.

            A $9.9 million settlement has been reached in a lawsuit filed by a couple who were arrested and prosecuted on child molestation charges and publicly identified as having been involved in multiple instances of abusing children, only to have most of their accusers later recant the accusations. The plaintiffs were arrested in their home at gunpoint by sheriff's deputies without a warrant, investigating claims of sexual molestation made by several neighborhood children.

            The lawsuit alleged that the plaintiffs were "paraded before a screaming mob" after their arrest. Another couple living on the same block, who did not know this couple, were also arrested for child molestation charges. The sheriff's department issued a press release to the local daily newspaper and to wire services identifying the plaintiffs by name.

            According to the plaintiffs, none of the children were ever in either house and the charges of molestation were not "credible." Over a dozen felony charges were filed, and the plaintiffs were kept in custody without bail for 16 days. Upon release, their reputation in the community was such that they allegedly had to sell their house and leave the neighborhood. All but two of the children recanted their accusations before a preliminary hearing, and the judge at that hearing, at which only one child testified, dismissed all charges, stating "this is too incredible to be believed." According to the plaintiffs' attorney, the children had made accusations which included claims that the couple "boiled and ate babies."

            The lawsuit, initially filed by both couples, sought damages for false arrest, false imprisonment, and defamation. A first trial resulted in a jury award of $2.5 million,  but  new trial was granted. A second trial resulted in a $7.5 million jury award, which was also overturned for a new trial on damages. The other couple settled for $4 million prior to the third trial, and a jury awarded the first couple $13.5 million after a trial in October 2000. The trial judge lowered that award to $7 million, but also awarded approximately $3 million in attorneys' fees. The county settled the case for $9.9 million following mediation. Valentin v. County of Los Angeles, No. C529739 (Los Angeles Super. Ct.), reported in The National Law Journal,  p. A13 (May 28, 2001). [Cross-references: Defamation].

Officer had arguable probable cause to arrest flea market vendors for unlawful sale of goods with unauthorized trademarks, based in part on low prices of goods bearing "Nike" trademarks, and was entitled to qualified immunity; absolute immunity protected a second officer from claims based on his testimony at preliminary hearing.

            An Alabama police officer arrested two men who sold him two "Nike" pendants at a flea market. They were charged with the sale of goods with unauthorized trademarks, but a grand jury later declined to indict them and the charges were not pursued. They sued the arresting officer, and a second officer who testified against them at their preliminary hearing, claiming Fourth Amendment violations.

            A federal appeals court has ruled that the arresting officer had arguable probable cause to make the arrest and was therefore entitled to qualified immunity. He was sold two items bearing a well-known trademark at prices which, in his opinion, were below what he would have expected a similar, legitimate item to cost, and numerous other sellers were engaged in selling trademark-infringing items in nearby booths. Indeed, the fact that the items sold infringed the Nike trademark was confirmed by a private trademark infringement investigator accompanying the officer, who represents various corporations in sting operations with local police departments. Further, the fact that the items were infringing "is undisputed."

            While an element of the offense of selling trademark infringing items under Alabama state law is that the seller do so "knowing that the trademark has been used without the owner's consent," the appeals court rejected the argument that the officer did not have arguable probable cause because he had not obtained admissions from the arrestees that they "knew that the pendants infringed Nike's trademark before he arrested them."

            Arguable probable cause "does not require an arresting officer to prove every element of a crime or to obtain a confession before making an arrest, which would negate the concept of probable cause and transform arresting officers into prosecutors." The second defendant officer was entitled to absolute immunity from the plaintiff's claim that he lied in his testimony at the preliminary hearing. Scarbrough v. Myles, No. 00-14063, 245 F.3d 1299 (11th Cir. 2001).

Text: <www.law.emory.edu/11circuit/index.html>. [Cross-references: Defenses: Absolute Immunity; Defenses: Qualified Immunity].

$3.5 million settlement in shooting death of man who grabbed an unloaded rifle when members of a SWAT team entered his home while executing a search warrant.

            A police SWAT team raided a Kansas home to execute a search warrant based on a confidential informant's allegation that he had bought cocaine at the home. The man whose home it was allegedly woke up and grabbed an unloaded rifle in response to their entry. He was shot by an officer in the shoulder, later dying of the wounds. It was disputed where the decedent had pointed the gun. No drugs were found in the raid, and a federal civil rights lawsuit alleged that the officers had not told the decedent to drop the gun prior to firing at him.

            The decedent's wife and 16-year-old daughter were detained during the raid while the search of the house was conducted. In addition to alleging excessive use of force, the plaintiffs raised Fourth Amendment issues regarding how officers announced themselves upon entry and whether the confidential informant was properly relied upon in obtaining the warrant, as well as false arrest claims by the wife and daughter, taken into custody during the raid, but ultimately having no charges filed against them. A $3.5 million settlement was reached prior to trial. Heard v. Board of County Commissioners of Miami County, No. 00-2173-JWL, U.S. Dist. Ct. (D. Kan.), reported in The National Law Journal, p. A6 (May 14, 2001), and in 44 ATLA Law Rptr. No. 5, p. 170 (June 2001).

Motor vehicle exception to governmental immunity for negligence under Pennsylvania law applies to cars, but not to bicycles; pedestrian struck by officer riding a bicycle on the sidewalk in violation of a city ordinance could not sue city and officer for damages.

            A Philadelphia police officer on bicycle patrol was riding on the sidewalk in violation of a city ordinance when he struck and injured a 74-year-old pedestrian, who sued the city and officer alleging negligence per se. The trial court ruled that the lawsuit was barred by governmental immunity, and an intermediate state appeals court agreed, ruling that a motor vehicle exception to governmental immunity applied only to motor vehicles (referred to as "self-propelled" vehicles in the law) and not to bicycles which are "instead propelled by human power." While stating that its own ruling was "seemingly unjust," the appeals court said that the language of the vehicle exception was clear: "bicycles are vehicles, but not motor vehicles." Harding v. City of Philadelphia, No. 2189 C.D. 2001, 2001 Pa. Commw. LEXIS 349. [Cross-reference: Defenses: Governmental Immunity].

Officers investigating child sexual abuse allegations had a duty, under Washington state law, to avoid negligence in doing so; appeals court reinstates lawsuit by parents arrested but later acquitted of involvement in child sex ring; improper interrogation techniques during interviews with children alleged.

            An intermediate Washington state appeals court has held that there is a duty to avoid negligence in the investigation of child abuse claims in that state, and that officers who fail to do so, as well as the agencies which employ them, can be held liable for resulting damages. The decision came in a suit involving parents who were arrested and charged with child sexual abuse following an investigation of an alleged "sex ring." All parents were ultimately either acquitted or had charges against them dropped. The lawsuit was brought by both the parents and their children.

            The lawsuit claims that police officers, along with state caseworkers, negligently conducted interviews during the investigation which involved using tactics like threatening interviewees with prison terms, criminal charges and permanent family separation. Children were allegedly interviewed in the presence of other children, and an officer allegedly "yelled at a child and called her a liar until she fabricated stories of abuse to appease him." One plaintiff's daughter was interviewed at her school for five hours, with the officer threatening that her mother would be arrested unless the child disclosed sexual abuse.

            The appeals court overturned the dismissal of claims for negligent investigation, ruling that a state statute, RCW 26.44, imposes a mandatory duty on officers and other governmental employees to investigate charges of child abuse. The court ruled that holding law enforcement agencies to a standard of negligence in child abuse investigations will encourage "careful, thorough investigations, which support the public policy of protecting children from child abuse while at the same time preventing unwarranted interference in the parent-child relationship." The court stated that if negligent investigation is proven on the part of individual officers, "their employers may be held vicariously liable." Rodriguez v. City of Wenatchee, # 43812-3-I, 994 P.2d 874 (Wash. App. 2000). [Cross-reference: Interrogation].

Text: <www.courts.wa.gov/opinions/>.

Woman and her minor daughter stated claims for "outrage" and civil rights violation based on "substantial evidence" that officer made obscene calls to their home and their claim that he engaged in "stalking" and "harassing" conduct; officer was not entitled to qualified immunity under Alabama law.

            A woman and her minor daughter claimed that a police officer made obscene phone calls to their home, including calls allegedly made while on duty when he knew the woman's husband was not at home because he saw the husband leave to go fishing. They also claimed that the officer began to "follow" the woman, engaging in "stalking" and "harassment," and that the calls continued after they changed their phone number, when the officer, to whom they allegedly reported the problem with the calls, was purportedly the only one to whom they had given the new number.

            An intermediate Alabama appeals court overturned a trial court's grant of summary judgment to the defendant officer. It found that there was "substantial evidence from which a jury could reasonably determine" that the officer was making the obscene telephone calls. The court also rejected the defendant officer's argument that he was entitled to qualified immunity. "Before a public official is entitled to qualified immunity, the court first must find that he acted within the scope of his discretionary authority," and "clearly, making obscene telephone calls is not within the scope of a police officer's discretionary authority."

            The court ruled that plaintiffs stated claims against the officer for outrage under Alabama state law and for violation of federal civil rights under 42 U.S.C. Sec. 1983. Woodley v. City of Jemison, #2980275, 770 So. 2d 1093 (Ala. Civ. App.), cert. denied, #1982266 (Ala. 2000).

Text: <www.findlaw.com/11stategov/al/alca.html>.

Shooting and killing by sheriff's deputy of Ohio man's pet lioness, allegedly after the escaped animal was tranquilized and returning to the barn from which it had roamed, stated a claim for unreasonable seizure of property, on which the sheriff was not entitled to qualified immunity.

            An Ohio man living in an unheated barn on his property with a number of animals he considers his family dialed 911 to report that someone had broken into his barn and released some of his animals. The animals which were loose included three of his dogs, a Siberian tigress, and his pet lioness, named "Nila."

            The county sheriff allegedly responded by telling the caller that "either he or I was going to leave this county," and ordering his deputies to shoot the lioness if they saw it. The lioness later was seen apparently walking to return to the barn, and the owner shot it with a tranquilizing dart. In a federal civil rights lawsuit he filed against the sheriff, he claims that the sheriff prevented him from giving the animal a second shot, and instead ordered his deputies to kill the animal. Deputies allegedly stuck a rifle to her head and shot and killed it while she was "within feet of the barn she had gotten out of."

            A federal trial court has ruled that the shooting of the pet lioness was a "seizure" of the plaintiff's property and that the defendant sheriff (and the unknown shooter who actually shot the animal, allegedly in response to the sheriff's orders) was not entitled to qualified immunity from the suit.

            "The killing of the lioness is the destruction of property, which qualifies as a 'seizure' under the Fourth Amendment." Accepting the plaintiff's version of events as true, "a trier of fact certainly could find that the killing of the lioness was an 'unreasonable' seizure under the Fourth Amendment." The court "cannot say that a reasonable officer would not have known that shooting a tranquilized lioness in the head, from point-blank range, while the animal was only feet from its barn constitutes an 'unreasonable' seizure in violation of the Fourth Amendment."

            The court acknowledged that the shooting and killing of a "loose exotic animal, even one that is a pet" could be justified if it were killed while it "prowled the neighborhood" and posed a "public danger," but not under circumstances where the animal was tranquilized, the owner was in a position to further tranquilize it, and the shooting allegedly took place within feet of the barn from which the animal had escaped "and to which she was returning." Newsome v. Erwin, 137 F. Supp. 2d 934 (S.D. Ohio 2000). [Cross-references: Defenses: Qualified Immunity; Firearms Related: Intentional Use].

Deputy who shot a hostage during a shootout with store armed robbers did not violate hostage's Fourth Amendment or Fourteenth Amendment rights.

            During a shootout with armed robbers at a grocery store, a sheriff's deputy accidentally shot one of the hostages the robbers had taken. The injured hostage filed a federal civil rights lawsuit against deputies and their supervisors, alleging violation of his Fourth Amendment and Fourteenth Amendment due process rights.

            Granting summary judgment for the defendants, the trial court found that there was no Fourth Amendment "seizure" of the hostage, since the deputy did not intend to shoot him, but rather did so by accident and intended to shoot the robbers. The court also noted that the hostages were not being used as human shields by the robbers at the time, and were on the ground five to seven feet away from the nearest robber when the deputies opened fire.

            The court also rejected the due process claim, since the deputies did not employ force in a malicious or sadistic manner that "shocked the conscience," but instead tried to react as best they could to a "tense, uncertain, and rapidly evolving situation" in which they were forced to make "split-second decisions" and balance the need to stop the robbers with the possible risks to hostages. Lee v. Williams, 138 F. Supp. 2d 748 (E.D. Va. 2001). [Cross- reference: Firearms Related: Accidental Use; Firearms Related: Intentional Use].

Federal appeals court rejects class action racial profiling lawsuit against Illinois State Police; plaintiffs failed to provide adequately reliable statistics of either the race of motorists stopped in drug interdiction program or of the racial composition of motorists on Illinois state highways; defendant agency's training materials tell officers not to make stops based on racial profiling.

            A federal appeals court has rejected claims in a class action lawsuit against the Illinois State police that its "Operation Valkyrie," a drug interdiction unit, engaged in unlawful "racial profiling" that constituted a practice of stopping, detaining, and searching African-American and Hispanic motorists based on their race and without legally sufficient cause or justification. In doing so, it upheld summary judgment for the defendant agency by the trial court.

            The unit focuses on fighting drugs by stopping vehicles for legitimate traffic violations and then using a list of 28 indicators, such as maps from drug source cities or states, air fresheners, too little or too much luggage for the stated length of a trip, etc. Officers who spot such indicators ask permission to search driver's vehicles.

            The named plaintiffs in the class action lawsuit were a Hispanic motorist stopped in 1999 for failure to signal a lane change and an African-American motorist who claimed that he was stopped and searched on three occasions in 1993, without violating any traffic laws. The plaintiffs offered statistics which they alleged proved "systemic racial profiling," and that white motorists who engaged in identical driving were not stopped.

            The appeals court held that the use of "impermissible racial classifications in determining whom to stop, detain and search," if proven, "would amount to a violation of the equal protection clause of the 14th Amendment." However, to show such a violation, the plaintiffs must "prove that the defendants' actions had a discriminatory effect and were motivated by a discriminatory purpose." While statistics may be used to prove that the plaintiffs were treated differently than similarly situated motorists of another race, the court found that the statistical evidence presented did not support an inference of racial profiling.

            The plaintiffs did not tell the court how many Valkyrie field reports there are or how many were analyzed. While there was a document stating that there were 306 field reports completed by Valkyrie officers in 1992, the plaintiffs only conducted a "random sample" of this data. "There is no indication of the total number of stops this is being compared to, thus it is impossible to tell if this sample size is sufficiently large to be reliable."

            The court was also concerned about the absence of a "benchmark" to measure the plaintiffs' statistics. The plaintiffs compared the numbers they derived from the field reports "with the representation of whites, African-Americans, and Hispanics ostensibly in the Illinois population and on Illinois roads" based on the 1990 census. The court stated that it was "widely acknowledged" that the census "fails to count everyone," and that the undercount is "greatest in certain subgroups of the population, particularly Hispanics and African- Americans." Accordingly, "these population baselines are simply insufficient to determine the racial makeup of motorists on Illinois highways."

            Without reliable data on "whom Valkyrie officers stop, detain and search, and without reliable data indicating the population on the highways where motorists are stopped, detained and searched, we can not find that the statistics prove that the Valkyrie officers' actions had a discriminatory effect on the plaintiffs," the court concluded.

            Training in the Illinois State Police program specifically cautions officers not to use racial profiling. The court found that "much of the evidence in this case" indicated that the defendant agency endeavors "to conduct police activity through means that respect constitutional rights. How to change public perception and demonstrate compliance with constitutional requirements is a matter the State of Illinois may wish to consider." Chavez v. Illinois State Police, #99-3691 & 00-1462, 2001 U.S. App. LEXIS 10560 (7th Cir.).

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

City officials were not required to first attempt to obtain building owner's consent to inspection of his building before attempting to obtain an administrative search warrant based on officer's affidavit that the building appeared to be "unsafe and dangerous."

            A Michigan police officer filed an affidavit to obtain an administrative search warrant for the entering and inspection of a building that appeared to be vacant and in disrepair, fearing that the building might be "unsafe and dangerous." Inspection of the unlocked building under the warrant resulted in the posting of a notice of unsafe and dangerous conditions on the property and the initiating of a proceeding to have the building either demolished or repaired to be made safe.

            The building owner filed a lawsuit against the city and county and a number of their employees, alleging violations of his constitutional rights. The trial court granted summary judgment to the defendants, finding that the officer's affidavit that he observed damage to the building, including broken windows and "missing or damaged facia and trim" making the building unsafe and dangerous was sufficient to provide probable cause for the administrative search warrant. The court rejected the argument that city officials were required to first attempt to obtain his permission before seeking the issuance of the warrant. Meloche v. City of West Branch, 134 F. Supp. 2d 859 (E.D. Mich. 2001).

Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,
                No. 99-1848, 121 S. Ct. 1835 (2001).[115]
Chavez v. Illinois State Police, #99-3691 & 00-1462, 2001 U.S. App. LEXIS 10560 (7th Cir.).[125-126]
Dye v. Wargo, No. 00-3250, 2001 U.S. App. LEXIS 12102 (7th Cir.).[119-120]
Gross v. Pirtle, No. 00-2130, 245 F.3d 1151 (10th Cir. 2001).[116-117]
Hafner v. County of Onondaga, 723 N.Y.S.2d 574 (A.D. 2000).[118]
Harding v. City of Philadelphia, No. 2189 C.D. 2001, 2001 Pa. Commw. LEXIS 349.[122]
Heard v. Board of County Commissioners of Miami County, No. 00-2173-JWL, U.S. Dist. Ct. (D. Kan.),
                reported in The National Law Journal, p. A6 (May 14, 2001).[121-122]
Lee v. Williams, 138 F. Supp. 2d 748 (E.D. Va. 2001).[124-125]
Meloche v. City of West Branch, 134 F. Supp. 2d 859 (E.D. Mich. 2001).[126]
Morrison v. Simmons, No. 98-CV-560, U.S. Dist. Ct. Dayton, Oh., June 2, 2001,
                reported in The National Law Journal, p. A7 (June 25, 2001).[117]
Newsome v. Erwin, 137 F. Supp. 2d 934 (S.D. Ohio 2000).[123-124]
Richardson v. City of Boston, 135 F. Supp. 2d 60 (D. Mass. 2001).[117-118]
Rivera-Rosario v. U.S. Dep't of Agric., #99-1553, 202 F.3d 35 (1st Cir. 2000).[117-118]
Rodriguez v. City of Wenatchee, # 43812-3-I, 994 P.2d 874 (Wash. App. 2000).[122-123]
Saucier v. Katz, No. 99-1977, 121 S. Ct. 2151 (2001).[115-116]
Scarbrough v. Myles, No. 00-14063, 245 F.3d 1299 (11th Cir. 2001).[120-121]
Summerville v. City of New York, 723 N.Y.S.2d 208 (A.D. 2001).[118]
Valentin v. County of Los Angeles, No. C529739 (Los Angeles Super. Ct.),
                reported in The National Law Journal,  p. A13 (May 28, 2001).[120]
Woodley v. City of Jemison, #2980275, 770 So. 2d 1093 (Ala. Civ. App.),
                cert. denied, #1982266 (Ala. 2000).[123]