January, 2001 web edition

Arrestee's conviction for resisting arrest and harassment of an officer did not preclude his claim against officer for excessive use of force; plaintiff was still not entitled to a new trial on his excessive force claim when he failed to object to jury instructions limiting its consideration to events occurring prior to his handcuffing by the officer.

            A police officer went to a man's home in response to a complaint about his failure to remove snow on the road in front of his house. When the officer informed the man that he would be issued a ticket, a fight ensued, during which the man allegedly threw punches against the officer and the officer used pepper spray in response.

            The officer further stated that when he drew his baton, the man reached towards a kitchen counter and grabbed the handle of a knife, a statement that the man disputed. The officer then allegedly stated that he would have to shoot if he was attacked with a knife, following which another fight occurred. A second officer entered the house and assisted in restraining and handcuffing the man, who was then taken out of the house. The arrestee later claimed that his head was repeatedly banged against the police car outside.

            He was charged with resisting arrest and harassment of an officer in the second degree. He was found guilty of both charges by a jury, but nevertheless sued the officer for excessive use of force. The trial court ruled that the jury should only consider what happened after the plaintiff was handcuffed, since his convictions for striking the officer and resisting arrest precluded a finding of excessive force prior to the handcuffing.

            The jury found no liability on the part of the officer. On appeal by the plaintiff, a federal appeals court ruled that the finding of guilt on the charges of resisting arrest or harassing an officer did not necessarily preclude a subsequent claim of excessive force.  "The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer. It is clear, therefore, that there is no inherent conflict between a conviction for resisting arrest or harassment of a police officer and a finding that the police officers used excessive force in effectuating the arrest."

            However, in this case, the court also found no basis for vacating the judgment against the plaintiff. "Although the jury was instructed in a manner that restricted consideration of the claim of excessive force to the events subsequent to the handcuffing," the plaintiff did not object to the instructions, but rather actually expressly stated that he was satisfied and had no objections or requests. Since he consented to the jury instructions that he now challenged, and "points to no evidence that would have been received but for the district court's view of the preclusion issue, we find no basis for the directing of a new trial." Sullivan v. Gagnier, No. 99-7207, 225 F.3d 161 (2nd Cir. 2000).

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

Officer's shooting and killing of mentally disturbed man who came towards him armed with two machetes did not constitute disability discrimination; if disturbed individual was "denied access to medical services," it was because of his violent, threatening behavior, not because he was mentally disabled.

            The brother of a mentally disturbed forty-year-old man called 911 to report that the man had "just flipped his wig" and was in the house threatening their father with a machete. Two officers were dispatched to the scene and on their arrival were informed that the suspect was no longer in the house but had disappeared into the woods behind the house. They were told that the suspect was "mental" and had the "mind of a child."

            Family members allegedly told the officers that they did not wish for the man to be arrested, but only wanted him to be transported to a hospital so he could received medical attention. The officers left after being unable to located the man. One of the officers later returned in response to another 911 call, reporting that the man had returned and was now armed with two machetes.

            The man came toward the officer and ignored orders to drop his weapons. The officer stated that the man raised one of the machetes as if to throw it at the him, whereupon he shot and killed him. The parents of the decedent sued the officer and the county which employed him, arguing that there had been an unnecessary use of deadly force and that the defendants had denied their son public emergency services on the basis of disability discrimination in violation of the Americans With Disabilities Act (ADA) and Rehabilitation Act. They also asserted a claim for wrongful death under Tennessee state law.

            The trial court granted a motion for summary judgment on the disability discrimination claims, ruling that the plaintiffs had failed to produce any medical evidence that their son was a "qualified individual with a disability" or had been denied any "public services because of his disability." A jury returned a verdict in favor of the defendants on all other claims.

            A federal appeals court upheld this result. While there was "no doubt that their son was disabled under the ADA," the plaintiffs "have failed to produce any evidence that he was denied either access to a public service," or if he was denied access, "that such denial was because of his disability." The plaintiffs requested and received police assistance. While they wanted their son taken to a medical facility, it would have still been necessary for the officer to disarm him before he could be transported anywhere.

            The officer's "failure to disarm, or take the decedent under control, was not because he was inadequately trained to deal with disabled individuals, but because the decedent threatened him with a deadly weapon before he could subdue him. Thus, if the decedent was denied access to medical services it was because of his violent threatening behavior, not because he was mentally disabled." Thompson v. Williamson County, Tenn., No. 99-5458, 219 F.3d 555 (6th Cir. 2000).

Full Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross- references: Firearms: Intentional Use].

Family of woman killed by her estranged husband could assert a claim for violation of equal protection based on alleged failure to provide police protection because of gender, regardless of whether they could show that this failure helped cause the murder or indeed caused any actual harm at all; nominal damages could still be awarded if a constitutional violation without actual harm was proven.

            The family of a woman killed by her estranged husband in California filed a federal civil rights lawsuit against the county sheriff and several of his officers, claiming that they provided the wife with inadequate police protection because she was a woman, in violation of her right to equal protection of law.

            In a complex series of incidents, various disputes between the decedent and her husband were brought to the attention of the authorities, and the lawsuit claimed that their responses were inadequate. The trial court granted summary judgment for the defendants, ruling that there was no showing that their alleged misconduct caused the decedent's murder.

            In reversing, a federal appeals court found that the trial court "erred as a matter of law in concluding that the alleged constitutional deprivation was the murder" of the decedent. "It is well established that 'there is no constitutional right to be protected by the state against being murdered by criminals or madmen.' There is a constitutional right, however, to have police services administered in a nondiscriminatory manner--a right that is violated when a state actor denies such protection to disfavored persons." Therefore, the alleged constitutional deprivation in the case was the alleged denial of equal police protection to the decedent.

            The question of whether the alleged denial of equal police protection caused the murder, or was at least a factor in allowing it to take place "may have some relevance to the amount of damages" that the plaintiffs are entitled to recover, but "it has no effect on the issue of whether they can demonstrate" that the defendants' conduct could support a cause of action for violation of constitutional rights. "A plaintiff may prove a violation of Sec. 1983 without demonstrating that the deprivation of his or her constitutional rights caused any actual harm," and in such instances must be awarded nominal damages "as a symbolic vindication of her constitutional right."

            The plaintiffs, therefore, could prevail on their claim and receive at least nominal damages if they proved that the defendants violated the decedent's right to equal protection, "irrespective of whether" their conduct caused the decedent's death. Macias, Estate of, v. Ihde, #99-15662, 219 F.3d 1018 (9th Cir. 2000).

Text: <www.ce9.uscourts.gov/opinions>. [Cross-reference: Damages: Nominal; Public Protection: Crime Victims].

Arrest of store customer for writing check returned for insufficient funds, when made pursuant to a valid arrest warrant, was "presumptively made with probable cause"; in the absence of a showing of fraud, perjury, or the misrepresentation or falsification of evidence, her false arrest claim must be dismissed.

            After a customer's check was returned for insufficient funds, a representative of a department store signed an information/complaint. The local police department sent the customer a letter, informing her of this prosecution and requesting that she appear at the police station to handle the matter within three days, warning that a warrant for her arrest would be issued if she failed to do so. Five days later, a town justice issued a warrant for her arrest, and she was arrested pursuant to the warrant. Charges were later dismissed.

            She sued the town, alleging false arrest. Granting the town's motion for summary judgment, the trial court noted that "an arrest pursuant to a valid warrant is presumptively made with probable cause," which can be rebutted only by a showing of "fraud, perjury, or the misrepresentation or falsification of evidence." Since no such showing could be made in this case, the claim for false arrest brought under 42 U.S.C. Sec. 1983 "must be dismissed." Martinetti v. Town of New Hartford Police Dept., 112 F. Supp. 2d 251 (N.D.N.Y. 2000).

Los Angeles reaches $975,000 settlement with relatives of 55-year-old mentally ill homeless woman who was shot and killed by an officer as she allegedly lunged towards him with a 12-inch screwdriver.

            A 55-year-old mentally ill homeless woman, standing just over 5 feet tall and weighing 102 pounds, was stopped by two police officers on bicycle in Los Angeles, seeking to determine whether the shopping cart she was pushing was stolen. One of the officers subsequently shot and killed her, asserting that she had lunged towards him with a 12-inch screwdriver.

            Relatives of the woman filed a federal civil rights lawsuit against the city, arguing that deadly force was not required under the circumstances as she did not actually pose a deadly threat to the officer, and that city police officers were ill equipped to handle incidents involving mentally ill people. The city's Police Commission, by a 3-2 vote, found that the shooting was in violation of departmental policy, and a deposition given by a witness to the shooting from across the street, a veteran LAPD motorcycle officer, indicated that he did not believe that the shooting was justified.

            The Los Angeles City Council approved a $975,000 settlement in the case. Mitchell v. Los Angeles, U.S. Dist. Ct. Los Angeles, settlement, reported in Los Angeles Times, Metro Section, p. 1 (Dec. 16, 2000).

Federal trial court rules that motorist's gesture of displaying his middle finger to an officer driving by was protected First Amendment speech; officer was not entitled to qualified immunity and could be held liable for arresting motorist for disorderly conduct.

            A motorist in Arkansas, driving by an officer's car, displayed his middle finger in an upward gesture several times, in a manner popularly known as "flipping someone off," "the bird," or "giving someone the finger." The officer stopped the motorist, and the motorist apologized to the officer, explaining that he thought the police vehicle was being driven by another officer with whom he had a personal dispute. The officer issued the motorist a ticket for disorderly conduct. An Arkansas court found the motorist not guilty of this charge, ruling that the gesture was protected First Amendment speech.

            The motorist subsequently sued the officer for violation of his constitutional rights. The federal trial court granted the motorist's motion for summary judgment on liability, rejecting the officer's claim for qualified immunity at the same time. It ruled that First Amendment free speech protection for such a gesture was "clearly established" on August 6th, 1998, so that a reasonable officer would not have believed that he could arrest the motorist for this gesture, standing alone.

            The court found that the gesture utilized by the motorist, while "crude, insensitive, offensive, and disturbing" to the officer's sensibilities, was "not obscene under the relevant Supreme Court precedent, did not constitute fighting words, and was protected as 'free speech' under the First Amendment to the United States Constitution." Further proceedings will determine the amount of damages to be awarded. Nichols v. Chacon, 110 F. Supp. 2d 1099 (W.D. Ark. 2000). [Cross-references: Defenses: Qualified Immunity; False Arrest/Imprisonment: No Warrant].

Federal trial court rules that a California sheriff is a county official rather than state official and therefore could be sued in his official capacity for damages under 42 U.S.C. Sec. 1983 on claim that he had a policy or custom which encouraged deputies to "violate the civil rights of women"; lawsuit based on deputy's alleged rape of woman in her home, where he came to investigate domestic violence complaint, could proceed.

            A California woman asserted, in her federal civil rights lawsuit, that she was raped by a deputy sheriff when he came to her home to investigate a report of domestic violence. The lawsuit further asserted that the county and sheriff have a de facto policy or custom of encouraging their law enforcement officers "to violate the civil rights of women," specifically, that the county and sheriff permitted this and other similar conduct by deputies and failed to property recruit, train, or discipline the deputy or other officers involved; and refused to prosecute the plaintiff's husband as part of a "cover up."

            The county and sheriff argued that the claims against them should be dismissed because the sheriff and deputy acted on behalf of the state in their law enforcement capacity and the sheriff was immune under the Eleventh Amendment because a sheriff is a state agent and therefore not a "person" within the meaning of 42 U.S.C. Sec. 1983.

            The defendants' motion was based on McMillian v. Monroe County, 520 U.S. 781 (1997), finding that an Alabama sheriff could not be sued under section 1983 for intimidating witnesses into making false statements because the sheriff was exercising state authority. Under McMillian's analysis, the inquiry as to whether a sheriff is a state or local official should not be made as a categorical "all or nothing" determination, as a sheriff may act for the State and the county in different capacities. Secondly, the inquiry "depends upon an analysis of state law that looks beyond how the State labels a sheriff and to the definition of a sheriff's actual functions under the relevant state law."

            Denying the motion to dismiss claims against the sheriff in his official capacity, the trial court ruled that a California sheriff was a county official who could be held liable in an official capacity lawsuit for damages under Sec. 1983, rather than a state official immune from such a claim. California law, the court reasoned, defines sheriffs as county employees, elected within and by the county. They are required to "attend upon and obey state courts only within their county," unlike Alabama sheriffs who are "subject to the supervision of any court in the state, even those outside their county." Unlike Alabama sheriffs, whose salary is set by the state legislature, the salary of a sheriff in California is set by the county board of supervisors.

            Further, while any judgment against a sheriff in Alabama would be paid by the state, any judgment against a sheriff in California would be paid from county funds. Roe v. County of Lake, 107 F. Supp. 2d 1146 (N.D. Cal. 2000). [Cross-reference: Sexual Assault].

N.Y. state trooper was liable for compensatory and punitive damages for failure to turn over exculpatory materials to prosecutor which he developed during internal and criminal investigation of fellow trooper being prosecuted for allegedly striking his former girlfriend; investigating officer determined that criminal charges against trooper were not justified, but failed to disclose exculpatory evidence or his report.

            A New York state trooper was arrested for harassment in the second degree after his former girlfriend accused him of striking her and pushing her to the ground. Another state trooper had conducted both a criminal and an internal investigation leading to the arrest. He placed a compelled statement from the officer and other evidence including a statement from the complainant, in the personnel file, along with his written report, based on all the evidence, concluding that the criminal charge against the officer was not substantiated. While the information in the personnel file was "largely exculpatory" and contained statements of witnesses, the investigating officer failed to turn over the file or his report to the prosecutor's office prior to the criminal prosecution of the trooper.

            The trooper subsequently sued the investigating officer for malicious prosecution, and a jury awarded compensatory and punitive damages. This result was upheld on appeal. The appeals court rejected the defendant officer's claim that he was not required to turn the plaintiff's personnel file to the prosecutor because the prosecutor's office never requested it.

            It further held that the trial court properly denied the defendant officer's motion to dismiss the complaint on the ground that statements given by a police officer under threat of dismissal are protected by privilege against self-incrimination and are automatically immunized from use in criminal proceedings. "While those statements and derivative evidence may not be used" by the prosecution against the officer in a criminal proceeding, "the police department must share information contained in the file when the information contains exculpatory information.

            "That is especially true where, as here, defendant conducted both a criminal and an internal investigation." Further material in a personnel file that is "relevant to the guilt or innocence of the defendant must lose its privilege of confidentiality."

            While there was probable cause to initially arrest the plaintiff officer on the basis of the complainant's initial statement, that probable cause was "subsequently dissipated when defendant learned of exculpatory material during his investigation." Since he concluded in his internal report that the charge against the plaintiff officer was not substantiated, but did not share that information with the prosecutor, it was established that the criminal proceeding against the plaintiff was continued in the absence of probable cause, as required for liability for malicious prosecution. Kemp v. Lynch, 713 N.Y.S.2d 790 (A.D. 2000).

Owner of property containing tree from which limb fell onto road could not be held liable for accident in which motorist struck officer summoned to the scene because the limb was blocking traffic; tree and its limb did not cause the officer's injuries when motorist stated that her inability to see officer before striking him was based on poor visibility from "fog" inside her vehicle and rain.

            A tree limb fell on the street in a Louisiana municipality. An officer was called to the scene because the tree limb was obstructing traffic. The officer walked onto the street to replace a flare in the roadway that had fallen, which was approximately fifty feet from where the tree limb was lying in the street. Immediately after replacing the flare, the officer was struck by a motorist's vehicle, suffering severe injuries as a result.

            The injured officer and his wife filed a lawsuit for damages against the owner of the property on which the tree was located.  Ruling that the property owner was entitled to summary judgment, an intermediate Louisiana appeals court found that the tree and the limb which fell from it had nothing to do with the accident which occurred. The motorist who struck the officer testified that her failure to see the officer was based on fog inside her vehicle which caused her windshield to haze, and the rain outside which further obstructed her view. Far from the tree limb blocking her view or its presence distracting her, her testimony was that she did not even see it. Ashy v. Migues, No. W99-1498, 768 So. 2d 97 (La. App. 2000).

Text: <http://www.lasc.org/news/newsindex.html>.

Officer's alleged threat to tell 18-year-old man's grandfather that he was gay would have violated the constitutional right to privacy; federal appeals court rejects officer's motion for qualified immunity despite lack of specific prior caselaw on the subject, ruling that the general right to privacy was clearly established and covers all "intimate facts of a personal nature."

            Two Pennsylvania police officers questioned two young men parked in a car in a high- crime area with the headlights off. The two youths, 18 and 17, admitted that they were parked there in order to have sex, and they were both arrested for underage drinking. At the police station, one of the officers allegedly told the 18-year-old that if he did not tell his grandfather that he was gay that the officer would reveal the information to him. The officer also lectured the two youths, telling them that the Bible counseled against homosexual activity.

            The 18-year-old later killed himself at home after he was released from custody. His mother filed a federal civil rights lawsuit against the municipality, the officers, and the police chief, asserting that the officers' actions violated the decedent's constitutional right to privacy. The officers also denied making the threat to disclose the information themselves.

            The trial court denied summary judgment to the defendants on this claim and also ruled that the officers were not entitled to qualified immunity since their conduct, if as alleged, violated a clearly established right to privacy at the time of the incident, in 1997.

            A federal appeals court panel upheld this result by a 2-1 vote, finding that clearly established law protects persons against forced disclosure of their sexual orientation. "It is difficult to imagine a more private matter than one's sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity." Despite the absence of prior caselaw specifically on the issue of whether the forced disclosure of sexual orientation violates the right to privacy, the court ruled that the "confidential and private nature of the information was obvious, and because the right to privacy is well-settled, the concomitant constitutional violation was apparent notwithstanding the fact that the very action in question had not previously been held to be unlawful." The right to privacy encompasses all "intimate facts of a personal nature."

            A dissenting judge on the panel agreed that the alleged conduct would have violated the youth's right to privacy, but believed that qualified immunity should apply because of the lack of prior caselaw specifically on the subject. Sterling v. Borough of Minersville, No. 99-1768, 232 F.3d 190 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-reference: Defenses: Qualified Immunity].

Illinois jury awards $50 million to parents of youth who died of an asthma attack after 911 emergency call was made; response time of up to 8-1/2 minutes by paramedics stationed at firehouse one block away, alleged understaffing of dispatchers, and failure to provide CPR instructions were all pointed to, based on which jury found "willful and wanton" misconduct.

            An Illinois jury awarded $50 million in damages to the parents of a 19-year-old man who died of an asthma attack after a call was made to the 911 emergency response phone system. The lawsuit, filed in state court, was based on an allegedly slow response to the call, which was first received by the police department and then properly switched to the fire department. Fire department operators did not answer the call until the 14th ring.

            A second call after the youth stopped breathing was not picked up by the operator until the 26th ring. The lawsuit further asserted that the operator, in violation of applicable regulations, did not offer instructions on applying CPR, which resulted in the father, as he tried to apply mouth-to-mouth resuscitation forcing air into his son's stomach, instead of his lungs.

            Paramedics who arrived at the home took several minutes to arrive despite their location at a firehouse only one block away. The plaintiffs argued that the response time was eight minutes, while the city argued that it was between four and six minutes.

            The trial included expert witness testimony that the youth could have lived if medication and assisted breathing had been provided sooner. At the time of the 911 call, three fire department 911 dispatchers were on duty, instead of the five required. A supervisor, who could have helped, was taking a lunch break.

            Plaintiffs in the lawsuit requested $10 million in damages, but the jury awarded five times that amount, and determined that the response by 911 personnel constituted "willful and wanton" misconduct. The award was reportedly the largest personal injury or wrongful death judgment against the city of Chicago ever. An appeal by the city was anticipated. Gant v. City of Chicago, No. 97-L-3579 (Nov. 30, 2000, Cir. Ct., Cook Co., Ill.), reported in The National Law Journal, p. A12 (Dec. 18, 2000).

            EDITOR'S NOTE: In American National Bank & Trust Co. v. City of Chicago, #86215, 735 N.E.2d 551 (Ill. 2000), full text: <www.state.il.us/court>, the Illinois Supreme Court found that a complaint adequately alleged willful and wanton misconduct in a 911 liability case similarly involving an asthma attack. In that case, the asthma victim herself made the call and informed the dispatcher that she lived on the third floor of the building. While the operator replied that paramedics were on the way, they did not try to keep the caller on the line.

            Two paramedics went to the building, having been told to look for a "heart attack" victim. Let into the building by a neighbor, they knocked on a third floor door, but went away after receiving no response. They returned to the apartment later in the day in response to an emergency call. This time, someone let them into the apartment and they found the asthma victim lying dead on the floor. The lawsuit asserted that the front door of the apartment had been unlocked all along and that the paramedics acted negligently, willfully and wantonly in failing to try to open the door. Rejecting arguments that the defendants were immune from liability under a state Emergency Medical Services System Act, the Illinois Supreme Court found that the allegations, if true, were sufficient to support a claim for willful and wanton misconduct defeating the immunity.

Brief detention of residence occupants during execution of proper search warrant was not unlawful; supervising officer was entitled to official immunity under Georgia state law for discretionary action in detaining occupants.

            A search warrant was obtained for a residence from which it was suspected that drugs were being sold. The warrant expressly authorized officers to conduct a diligent search of the premises "and of the persons found therein." At the time the search warrant was executed, seven persons were inside the house. Officers discovered and confiscated crack cocaine and arrested two individuals. Three other occupants of the residence, the father of one of the arrestees, his wife, and his 12-year-old son brought a lawsuit against a police captain who they claimed falsely imprisoned them during the search.

            An intermediate Georgia appeals court upheld summary judgment for the defendant captain. It noted that the brief detention of occupants of a residence during the execution of a lawful search warrant was lawful. In this case, the court pointed out, cocaine is a substance which is "easily concealed and may require some time to discover." The court further noted that in supervising the execution of the search warrant, the Captain was exercising a discretionary function, so that under state law he was entitled to immunity for the performance of his official duties, even if they had been performed negligently, as long as there was no evidence of "actual malice." White v. Traino, No. A00A0129, 535 S.E.2d 275 (Ga. App. 2000). [Cross-reference: Defenses: Official Immunity].

UPDATE: Federal appeals court rules that "perp walks"--parading arrestees  for the sole purpose of having them photographed--violates the Fourth Amendment.

            As previously reported, a federal district court in New York ruled that a police practice of "parading" an arrestee in front of television cameras and other reporters solely for the benefit of the media is a violation of the arrestee's Fourth Amendment rights. "This outrageous and unnecessarily humiliating procedure is an 'unreasonable seizure' as a matter of law," the court stated.

            The case involved a so-called "perp walk" of an arrestee who was allegedly taken out of the police station, placed into an unmarked car, driven around the block, and walked back into the precinct all at the request of the media, solely so that he could be photographed in custody. The judge found that this served no legitimate law enforcement function and was only designed to "humiliate" the plaintiff. Lauro v. City of New York, 39 F. Supp. 2d 351 (S.D.N.Y. 1999), reported in Liability Reporter No. 317, p. 77 (May 1999).

            A federal appeals court has now upheld that decision. "The interests of the press, and of the public who might want to view perp walks, are far from negligible. In this case, however, the press and the public were not viewing the actual event of" the arrestee "being brought to the police station, but rather, were offered a staged recreation of the event. Even assuming that there is a legitimate state interest in accurate reporting of police activity, that interest is not well served by an inherently fictional dramatization of an event that transpired hours earlier."

            "We conclude that" the "perp walk that occurred in the case before us not only intruded upon the privacy protected by the Fourth Amendment, but also lacked any legitimate law enforcement purpose, and hence was unreasonable." The appeals court also ruled, however, that a defendant police detective who staged the "perp walk" should be granted qualified immunity from liability, since there was no caselaw at the time of the incident, September of 1995, which clearly established the unconstitutionality of such actions. Lauro v. Charles, #99- 7239, 219 F.3d 202 (2nd Cir. 2000).

Full Text: <www.tourolaw.edu/2ndCircuit>. [Cross- reference: Defenses: Qualified Immunity].

City was liable for strip search of female arrestee in custody for violation of municipal code provision prohibiting possession of an unlicensed dog, since neither the arresting officer nor the matron who conducted the search suspected that she possessed weapons or other contraband.

            A female arrestee in New York claimed that she was improperly strip-searched in a police station. Her arrest was for possessing an unlicensed dog, a violation of the municipal code. During her arrest, she was asked to remove all of her outer garments, and while her underwear was still on, she was asked to lift her bra and expose her breasts. She filed a federal civil rights lawsuit asserting that this violated her rights under the Fourth Amendment.

            Ruling that the plaintiff was entitled to judgment as a matter of law on the issue of liability, an intermediate New York appellate court noted that "strip-searches of arrestees charged with misdemeanors or other minor offenses violate the Fourth Amendment to the U.S. Constitution unless there is a reasonable suspicion that the arrestee is concealing weapons or contraband based on the crime charged, and the circumstances of the arrest." In this case, the search was made "pursuant to an official policy that provided for the strip-search of all arrestees detained in a cell." The record indicated that neither the arresting officer nor the matron who conducted the search suspected that the plaintiff possessed any weapons or other contraband, so that the search was "unreasonable and in violation of the plaintiff's Fourth Amendment rights." Huck v. City of Newburgh, 712 N.Y.S.2d 149 (A.D. 2000). [Cross- reference: Governmental Liability: Policy/Custom].

Strip search of minor female, not named in search warrant, during search of trailer for marijuana, would not be reasonable absence particularized suspicion that she was concealing drugs on her person; deputy was not entitled to qualified immunity from liability.

            Deputy sheriffs executed a narcotics search warrant on a trailer. The warrant authorized the search of the trailer and of the person of the owner, who was suspected of marijuana possession. It did not authorize the search of any other person. A deputy observed a female who was not the trailer owner coming out of the bathroom in the trailer with a beer in her hand. She was a minor.

            He grabbed her arm and led her into the kitchen where officers had assembled four other occupants of the trailer. No drugs were found during a search of the kitchen and during patdown frisks of three of the occupants, including the female who had the beer. A male deputy then allegedly motioned for her to go to the back bedroom, where he stood in the open doorway and allegedly conducted a strip search.

            She claimed that he asked if he could see her shirt, then her bra, then her shorts, and then her panties. She took each of these items off and handed them to him. "And I had to turn around and face the wall and I had to bend over and cough three times," she claimed. "And then he let me put my clothes back on." The deputy denied conducting this strip search. While drug paraphernalia was found in an outside trash can and marijuana residue and seeds later found in the trailer, no one was arrested.

            The female allegedly subjected to the strip search filed a federal civil rights lawsuit claiming that she had been unlawfully detained and subjected to an illegal strip search. The trial court ruled that the defendant deputies were entitled to qualified immunity on the unlawful detention issue, since occupants of a premises being searched pursuant to a valid search warrant may be lawfully detained during the search, and there was not "clearly established" law on the subject of the permissible length of detention at the time of the search.

            The alleged strip search, however, was another matter, and it should have been "plainly obvious" and "readily apparent" to the defendant deputy that strip searching the plaintiff, who was not named in the warrant, was unlawful. Even if he had probable cause to believe that she was a minor consuming alcohol, he did not have any particularized reason to suspect that she was concealing marijuana on her person. Further, any incriminating evidence could have been discovered through a patdown search. The deputy was not, therefore, entitled to qualified immunity on this issue. Sims v. Forehand, 112 F. Supp. 2d 1260 (M.D. Ala. 2000). [Cross- references: Defenses: Qualified Immunity; Search and Seizure: Home/Business; Search and Seizure: Person].

In the November, 2000 issue of this publication, on pages 164-165, under the topic "Damages: Compensatory," the citation for this case was missing: "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. Slicker v. Jackson, No. 99-10592 215 F.3d 1225 (11th Cir. 2000). Full Text: <www.law.emory.edu/11circuit/index.html>. [Cross-references: Assault and Battery: Physical; Damages: Nominal].

American National Bank & Trust Co. v. City of Chicago, #86215, 735 N.E.2d 551 (Ill. 2000).[11-12]
Ashy v. Migues, No. W99-1498, 768 So. 2d 97 (La. App. 2000).[9-10]
Gant v. City of Chicago, No. 97-L-3579 (Nov. 30, 2000, Cir. Ct., Cook Co., Ill.),
                reported in The National Law Journal, p. A12 (Dec. 18, 2000).[11]
Huck v. City of Newburgh, 712 N.Y.S.2d 149 (A.D. 2000).[13-14]
Kemp v. Lynch, 713 N.Y.S.2d 790 (A.D. 2000).[8-9]
Lauro v. Charles, #99-7239, 219 F.3d 202 (2nd Cir. 2000).[12-13]
Macias, Estate of, v. Ihde, #99-15662, 219 F.3d 1018 (9th Cir. 2000).[5]
Martinetti v. Town of New Hartford Police Dept., 112 F. Supp. 2d 251 (N.D.N.Y. 2000).[6]
Mitchell v. Los Angeles, U.S. Dist. Ct. Los Angeles, settlement, reported in Los Angeles Times,
                Metro Section, p. 1 (Dec. 16, 2000).[6]
Nichols v. Chacon, 110 F. Supp. 2d 1099 (W.D. Ark. 2000).[7]
Roe v. County of Lake, 107 F. Supp. 2d 1146 (N.D. Cal. 2000).[7-8]
Sims v. Forehand, 112 F. Supp. 2d 1260 (M.D. Ala. 2000).[14-15]
Slicker v. Jackson, No. 99-10592 215 F.3d 1225 (11th Cir. 2000).[15]
Sterling v. Borough of Minersville, No. 99-1768, 232 F.3d 190 (3rd Cir. 2000).[10-11]
Sullivan v. Gagnier, No. 99-7207, 225 F.3d 161 (2nd Cir. 2000).[3]
Thompson v. Williamson County, Tenn., No. 99-5458, 219 F.3d 555 (6th Cir. 2000).[4-5]
White v. Traino, No. A00A0129, 535 S.E.2d 275 (Ga. App. 2000).[12]