July, 2001 web edition

Overly tight application of handcuffs on a nonviolent detainee may be excessive use of force, in the absence of any indication that detainee would resist or attempt to flee.

            After a motorist was stopped for making an illegal left-hand turn, a routine check revealed that the motorist's license had been suspended for failure to pay a previous traffic ticket, and that a civil warrant had been issued due to the motorist's failure to pay child support. Placed under arrest, the motorist complained that the handcuffs were too small and tight and were injuring his wrists. Officers purportedly responded that it was city policy to handcuff all detainees, regardless of circumstances.

            In his lawsuit against the city, the motorist claimed that he was further injured because he was tossed about in the back seat because of the officers' "unnecessary speeding, tailgating, abrupt braking, and general reckless driving." When he requested medical attention at the police station, he claimed he was threatened with prosecution for obstruction for doing so, and then again handcuffed on his swollen wrists for transport to and from the hospital when he insisted.

            The federal appeals court found that these alleged facts stated a claim for excessive use of force. The crimes for which the motorist was stopped were "not particularly severe, nor do they indicate that the plaintiff had a tendency toward violence. There is also no evidence that  the plaintiff attempted to flee from the officers, or that he resisted arrest in any way."

            "While the Supreme Court in Graham [Graham v. Connor, 490 U.S. 386 (1989)] acknowledged that the government has the right to use, or threaten to use, 'some degree of physical coercion' when making an arrest, it is not clear from the face of the complaint that the government's interests in officer and public safety outweigh the detainee's interests in being free from severe pain and risk of injury, particularly in this case, where a non-violent detainee  was forced to wear handcuffs that were allegedly too small, even on their loosest setting, simply because the City's policy may have required it."

            Further, "for the district court to make a blanket statement that the use of handcuffs on detainees is, in all cases, objectively reasonable is at odds with the Supreme Court's holding in Graham that the particular facts of each case be examined when making a determination of the reasonableness of the force used." Kostrzewa v. City of Troy, #00-1037, 2001 U.S. App. LEXIS 7362 (6th Cir.).

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

       EDITOR'S NOTE: See also: Soares v. Connecticut, 8 F.3d 917 (2nd Cir. 1993) (refusing to hold that handcuffing is per se reasonable).

Woman arrested following physical altercation with her daughter was not subjected to excessive force merely because of "handcuffing too tightly"; officers' conduct did not amount to disability discrimination just because arrestee suffered from multiple sclerosis.

            Where officers arrested a woman following her physical altercation with her grown daughter, and the arrestee sued, claiming that her wrist was allegedly swollen from being handcuffed, another federal appeals court found that "handcuffing  too tightly, without more, does not amount to excessive force." There was no allegation that the officers acted "with malice," touched her, or did anything other than placing the handcuffs on her.

            The plaintiff argued that she was left in an unventilated vehicle which was placed in the sun for almost an hour before she was taken to jail and that her multiple sclerosis was exacerbated by the heat. However, in her own deposition, she stated that the vehicle left for jail approximately 30 minutes after she was placed in it. The appeals court also noted that the plaintiff herself admitted that one of the officers asked her whether she wanted to go to the hospital and that she refused. An ambulance was present and she did not ask for medical attention.

            The appeals court therefore held that the arresting officers were entitled to qualified immunity. It also found that the officers had probable cause to arrest the plaintiff. The trial court below also rejected a claim by the arrestee, based on her condition of multiple sclerosis, that the officers' conduct constituted disability discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101.  Glenn v. City of Tyler, #00-40133, 242 F.3d 307 (5th Cir. 2001).

Text: <www.law.utexas.edu/us5th/us5th.html>.

Under state statute, city had to indemnify officers for $234,671.56 in damages awarded against them in federal civil rights lawsuit, but indemnification statute did not require city to pay an award of $191,628.75 in attorneys' fees, Illinois Supreme Court rules.

            The owner of a Chicago shoe store was awarded $234,671.56 in damages in his federal civil rights lawsuit stemming from an incident in which an officer investigating a break-in at his store attempted to steal a pair of shorts. In an attempt to keep the officer from leaving, the storekeeper held onto the driver's side door of the squad car to keep it open, but the officer drove away anyway, with the storeowner hanging onto the car, and then allegedly further assaulted the storeowner when he was thrown from the vehicle. The award was made against both this officer and his partner, who did not intervene to stop the first officer's actions.

            A federal appeals court ruled that the city was liable for the award against the officers under an indemnification provision of a state statute, the Illinois Tort Immunity Act, 745 ILCS 10/9-102. It certified to the Illinois Supreme Court, however, the question of whether that indemnification provision also covered $191,628.75 in attorneys' fees and $10,774.42 in costs awarded to the plaintiffs against the officers under 42 U.S.C. Sec. 1988 as prevailing plaintiffs. Yang v. City of Chicago, #98-4238 & 98-4330, 198 F.3d 630 (7th Cir. 1999). Full Text: <www.kentlaw.edu/7circuit/>.

            The Illinois Supreme Court has ruled that the failure of the state legislature to explicitly include indemnification for attorneys' fees, and the limitation of indemnification to "compensatory damages" indicates that the statute does not authorize the recovery of such fees from cities in these circumstances. "The plain language of section 9-102 does not provide for attorney fees," the court concluded. Yang v. City of Chicago, No. 88656, 745 N.E.2d 541 (Ill. 2001).

Text: <www.state.il.us/court>. [Cross-references: Defenses: Indemnification].

City legislators are not entitled to qualified immunity if they act in bad faith in indemnifying police officers against awards of punitive damages in federal civil rights lawsuits for misconduct.

            Under a California state statute, Cal. Govt. Code Sec. 825(b), a local governmental legislative body may agree to pay punitive damages awarded against a governmental employee or official, so long as they acted in good faith and without malice, "within the course and scope of" their employment and in the "apparent best interests of the public entity," when payment of the judgment "would be in the best interests of the public entity."

            A federal appeals court has ruled that the "bad faith execution of a municipal policy to indemnify police officers from punitive damages states a claim under 42 U.S.C. Sec. 1983," and that municipal officials are not entitled to qualified immunity against such claims. The ruling came in a lawsuit asserting that prior decisions by a county Board of Supervisors to indemnify county sheriffs from punitive damage awards "were made in bad faith and proximately caused a violation of the plaintiff's constitutional rights." The appeals court therefore upheld the trial court's denial of the defendant Supervisors' motion to dismiss the claims against them. Navarro v. Block, No. 99-55623, 2001 U.S. App. LEXIS 8874 (9th Cir.).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross-references: Defenses: Indemnification; Defenses: Qualified Immunity].

            EDITOR'S NOTE: In Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994) the court ruled that local legislators are not entitled to absolute legislative immunity for implementing their state-created power to indemnify police officers from punitive damage awards. In Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996), the court ruled that local legislators who implement their power to indemnify police officers from punitive damage awards in good faith on a discretionary, case-by-case basis are entitled to qualified immunity.

Rather than merely reviewing punitive damage awards for "abuse of discretion" by trial courts, federal appeals courts should conduct an "independent review" of whether such awards are so excessive as to be unconstitutional, U.S. Supreme Court rules.

            Federal appeals courts should conduct an independent review of whether awards of punitive damages are so excessive as to be unconstitutional before upholding such awards, the U.S. Supreme Court ruled. It ordered further proceedings in a case where the appeals court merely held that a trial court "did not abuse its discretion" by declining to reduce a $4.5 million punitive damage award against a small tool company. The case did not involve law enforcement defendants, but the reasoning would apply in such cases. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., No. 99-2035, 2001 U.S. LEXIS 3520. [Cross-references: U.S. Supreme Court Actions].

NY officials reach $3.25 million settlement in lawsuit over mistaken two-year imprisonment of mentally ill homeless man extradited to the state after being misidentified as a fugitive drug dealer.

            New York state correctional officials paid $3.25 million and provided an apology for the mistaken two-year incarceration of a mentally ill homeless man, to settle a lawsuit brought on his behalf by his mother, serving as his guardian. The man, who had no prior criminal record and suffers from schizophrenia was arrested in Los Angeles and extradited to New York when he was misidentified as a fugitive drug dealer from New York who has the same last name and birthdate, but a different first name.

            While he repeatedly asserted that he was not the man sought, and that his first name was not Robert, correctional officials and employees never compared his fingerprints and photographs to that of the fugitive sought, and believed that his claims that he was the wrong man were simply a sign of his mental illness. Correctional officials indicated that improvements in identification procedures for incoming prisoners have since been made. No disciplinary actions were taken against any of the correctional officers, counselors, and prison psychiatrists who were involved in the prisoner's case in two New York state prisons. Sanders v. N.Y. Depart. of Corrections, No. 97 Civ. 7112 (DAB), U.S. Dist. Ct. (S.D.N.Y. April 12, 2001), reported in The New York Times, National Edition, p. A14 (April 13, 2001).

            EDITOR'S NOTE: In a case brought by the same plaintiff against the California county where the man was first misidentified and detained before extradition to New York, a $290,000 settlement was reached. Lee v. County of Los Angeles, No. No. CV-96-07268- WMB, U.S. Dist. Court (C.D. Cal. 2001). Claims against the city police department there, remain pending. Lee v. City of Los Angeles, No. 98-55807, 2001 U.S. App. LEXIS 8150 (9th Cir.). (Overturning dismissal of federal civil rights claims under the First and Fourth Amendment against city and four individual police officers and ruling that plaintiff should have an opportunity to amend a disability discrimination claim under the Americans With Disabilities Act (ADA) which the trial court had dismissed with prejudice). Full text: <www.ce9.uscourts.gov/web/newopinions.nsf/>.

Chicago reaches $18 million settlement with family of unarmed woman shot and killed by officer at the conclusion of a 31 block pursuit of the vehicle in which she was riding.

            The City of Chicago reached an $18 million settlement with the family of a woman shot and killed by police officers at the conclusion of a 31-block high-speed pursuit of a vehicle in which she was a passenger. When shot, she was talking on her cellular telephone in a car driven by a male friend which had been pursued by four officers after it drove away from a traffic stop in which the motorist was asked for his driver's license and insurance card.

            The officer who fired the shot stated that she mistakenly thought that a silver padlock in the woman's hand was a gun and she therefore feared for her life. Other witnesses to the shooting stated that the telephone was actually the item in the woman's hands. A large padlock was found in the car, but had no discernible fingerprints on it.

            The police department fired this officer and two others involved in the incident, and suspended the fourth for a year. The department's reviewing board found that the officer was unjustified in firing at the woman and that the officers should have stopped the pursuit when they were ordered to do so by radio, but failed to do so. The board also ruled, however, that the fleeing motorist was "principally responsible" for the woman's death because he fled, allegedly fearing an arrest for drugs in the car.

            The settlement in the wrongful death lawsuit brought by the decedent's family came just before a scheduled trial, and after the trial judge denied a request from the city to move the trial to a different county, rejecting an argument that a fair trial in the case was impossible because prior publicity had "poisoned" the potential pool of jurors. The settlement also included an agreement that the city's mayor would meet with the woman's parents and apologize to them. One-third of the settlement funds will go to the plaintiffs' lawyers, who included former O.J. Simpson defense attorney Johnnie Cochran and a former chief corporation counsel for the city. Haggerty v. Daniels, No. 99-L-006486, Circuit Ct. of Cook County, IL., reported in Chicago Tribune, p. 1 (May 8, 2001).

City could not be held liable for deaths of motorists killed in a collision with a pursued car, regardless of the constitutionality of the city's policies, training and supervision on high-speed pursuits, when individual officers involved in the chase did not violate the decedents' constitutional rights.

            Three occupants of a car in Oklahoma were killed in a collision with another vehicle being pursued by police officers. The pursued vehicle had run a red light while being chased for a stolen vehicle offense. The pursuit involved speeds in excess of sixty to sixty-five miles per hour through residential areas.

            While a written department policy required that all pursuits be supervised and directed officers to terminate such pursuits when hazards outweigh the benefits, no supervisor or watch commander was notified of the pursuit, so it was not supervised. The estate of one of the decedents sued the officers and city.

            A federal appeals court ruled that the officers were entitled to qualified immunity because it was not clearly established in May of 1990, the time of the incident, that a police officer could be liable under 42 U.S.C. Sec. 1983 in a high speed pursuit case for an injury caused by a third party.

            The plaintiff argued that the city should still be held liable on the basis of actions characterized as arbitrary or conscience-shocking in a constitutional sense, even if there were no unconstitutional acts by individual officers. Specifically, it pointed alleged inadequate policies, training and supervision of officers with respect to high speed pursuits. A federal appeals court disagreed.

            "The threshold issue is whether the action causing the harm (police pursuit resulting in death of innocent bystander) states a constitutional violation at all. Because there was no evidence that the officer intended to harm the decedents, Lewis [County of Sacramento v. Lewis, 523 U.S. 833 (1998)] dictates that no constitutional harm has been committed." Under these circumstances, the court ruled, "a municipality cannot be held liable."

            "Even if it could be said that Tulsa's policies, training, and supervision were unconstitutional, the City cannot be held liable where, as here, the officers did not commit a constitutional violation." Trigalet v. City of Tulsa, Okl., #98-5261, 239 F.3d 1150 (10th Cir. 2001).

Text: <www.kscourts.org/ca10/>. [Cross-references: Administrative Liability: Training; High-Speed Pursuit].

Driver of police vehicle had a ministerial duty to activate his lights and siren when passing through a red light while responding to an emergency situation; question of whether he and the city were entitled to official immunity in lawsuit brought by passenger officer injured in collision with a tow truck might depend on whether he did so.

            A police vehicle allegedly went through a red light at an intersection and collided with a tow truck. An officer riding as a passenger in the police vehicle was injured and sued the tow truck driver and his employer for damages. The defendants sought contribution and indemnity from the city and the officer who had been driving the police vehicle, based in part on their contention that the police vehicle did not have its siren activated at the time.

            A Minnesota trial court ruled that the officer-driver and city were entitled to official immunity even if the police vehicle passed through a red light with its siren off since the driving officer was engaged in a discretionary act in response to an emergency situation. It further stated that his conduct may have involved negligence, but was not malicious or willful.

            Remanding for further proceedings, an intermediate appeals court ruled that the driver of the police vehicle had a ministerial duty under state statutes to activate lights and sound his siren before passing through a red light. "Failure to use sirens and lights when passing through a stop sign is more than mere negligence; it destroys a claim of privileges and rights arising out of an emergency." Nelson v. Wrecker Services, Inc., #C0-00-1363, 622 N.W.2d 399 (Minn. App. 2001).

Text: <www.courts.stat.mn.us/>. [Cross-reference: Defenses: Official Immunity].

Introduction of evidence of arrestee's later second arrest for domestic violence was no basis, in the absence of proper objection, for setting aside jury's verdict in favor of arresting officers on his false arrest/excessive force claims.

            Officers went to the scene of a domestic disturbance based on complaints from neighbors. The wife, who was pregnant, initially told the officers that her husband had punched her in the stomach, a statement she later retracted. The officers believed that the husband was making a threatening move towards one of them, and a struggle ensued, during which he allegedly bit one officer as he was being handcuffed. They arrested him for breach of the peace and assault and battery on an officer. He was acquitted on these charges and sued for false arrest and excessive use of force. A jury returned a verdict for the defendant officers.

            A federal appeals court rejected the plaintiff's arguments that the jury's verdict should be set aside because of the introduction at trial of evidence that the plaintiff had been arrested a year and a half later for striking his wife, the cross-examination of the wife concerning the second arrest, and testimony by an officer involved in the second arrest that the wife then told him that her husband had struck her before when she was pregnant.

            The court found that the plaintiff's testimony linking his mental anguish, for which he sought damages, to a newspaper report of the first arrest, publicity concerning the second arrest "had obvious probative worth as to the nature and extent of the ensuing damages." Further, while he objected to questions about the second arrest as a waste of time, he failed to properly object on the basis of Federal Rule of Evidence 404(b), prohibiting evidence of "other bad acts" unless they shed light on a disputed issue in the case, rather than merely being used to show a defendant's "deplorable character or propensity for wrongdoing." Under that rule, such evidence, even if relevant, may still be excluded if its prejudicial effect outweighs its benefit in resolving issues in the case.

            In this case, the appeals court failed to find any "plain error in the conclusion that any unfair prejudice failed substantially to outweigh the legitimate gain to be derived from permitting the jury to hear the 'second arrest' evidence." The plaintiff also failed to properly object at the time to cross-examination of his wife concerning the second arrest. Finally, the appeals court noted that the testimony by the officer concerning the wife's later statements about whether her husband hit her in the approximate time period of the first arrest, which contradicted her testimony at trial, could properly be used to impeach her testimony and credibility. Udemba v. Nicoli, #00-1246, 237 F.3d 8 (1st Cir. 2001).

Text: <http://www.law.emory.edu/1circuit>. [Cross-references: Assault and Battery: Physical].

Federal trial court bars evidence of prior unrelated departmental disciplinary actions against officer accused by arrestee of excessive use of force, as well as evidence about the existence of liability insurance; testimony about whether the arrestee actually hit his wife before the police arrived was not relevant to whether the officer used improper force.

            In an arrestee's federal civil rights lawsuit against his arresting officer claiming excessive use of force, a federal trial court ruled that evidence about prior, unrelated departmental disciplinary actions against the officer was inadmissible. Evidence of "other acts is admissible only if it is not offered to show action in conformity in character," the court noted, and the plaintiff had not offered any alternative purpose for the admission of this evidence.

            The trial judge also barred any evidence about the existence of liability insurance, since that was not relevant to the question of whether or not the officer used excessive force. Such evidence may only be introduced, the court ruled, if the officer attempts to offer evidence or argument that he is unable to personally satisfy a judgment against him. The court further barred testimony from the arrestee's spouse about what happened before the police arrived, and whether he had hit her, since any such evidence related to "circumstances outside of the time frame" of the officer's actions. Munley v. Carlson, 125 F. Supp. 2d 1117 (N.D. Ill. 2000). [Cross-reference: Assault & Battery: Physical; Insurance].

Owner of guns and ammunition seized under valid search warrant could pursue federal civil rights lawsuit for damages when police refused to return them without a court order, despite the fact that no criminal charges were filed regarding them; search warrant did not constitute sufficient pre-deprivation process, and the refusal to return them was not "random and unauthorized."

            Missouri police officers executing a valid search warrant for a residence seized 18 guns and 21 boxes of ammunition. No criminal charges were ever filed against the owner but his requests for the return of the weapons and ammunition were rejected, based on a departmental decision that because of the nature of the weapons as assault weapons (although they were not illegal for the owner to possess) they would not be returned without a court order.

            The owner filed a federal civil rights lawsuit against the city, asserting that the refusal to return his property violated his right to due process of law.

            A federal appeals court agreed, reversing a trial court's grant of summary judgment to the defendants. "We believe the District Court erred in holding that the valid search warrant defeated" the plaintiff's claim, since the violation was not the initial seizure of the property, but the refusal to return them without a court order "after it was determined that these items were not contraband or required as evidence in a court proceeding." Further, the refusal to do so "not a random or unauthorized act."

            The court also found that the "authorized decision not to return" the plaintiff's property "is not the sort of action for which postdeprivation process will suffice," under the principles stated in Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984). The availability of state law postdeprivation remedies only bars federal civil rights liability, the court noted, when the challenged actions "can be characterized as random and unauthorized," as opposed to being based on policy.

            Further, the court noted that "we believe there is no adequate postdeprivation state remedy," especially since five of the weapons in question were given by the city police department to the sheriff's departments of three different state counties, requiring the plaintiff to file four separate state law replevin actions to get his weapons returned. "We do not believe this constitutes an 'adequate' remedy." Lathon v. City of St. Louis, #00-1521EM, 242 F.3d 841 (8th Cir. 2001).

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

Alleged failure to protect female child against murder by her stepfather when officials knew that he had threatened to kill her if she reported his sexual abuse of her stated a claim for violation of her due process rights, when she allegedly been told that protection would be provided.

            A female child living with her mother and stepfather in Iowa, told a police chief and various other state and county employees that she had run away from home because of three years of sexual abuse by the stepfather. The stepfather was arrested and jailed, and the child was returned home to the custody of her mother. Later, despite information filed in court that the child had told officials that the stepfather had threatened to kill her if she reported the abuse, the stepfather's bail was reduced and he was released.

            When the child learned that the stepfather had been released, she phoned the police chief to whom she had previously mentioned the death threat, and "yelled that" the stepfather was going to kill her. The chief allegedly reassured the child that she would be all right but took "no steps" to protect the child or her mother. The  stepfather later broke into the house and killed both the child and her mother, and then killed himself.

            A lawsuit filed by the administrator of the child's estate sued the police chief, as well as various state and county agencies and employees, alleging a violation of due process based on failure to protect her from her stepfather after soliciting her to be a witness against him in the sexual abuse case by promising such protection.

            A trial court found that these allegations stated a claim for violation of the decedent child's substantive due process rights, based on facts which, if true, would "shock the conscience." It also ruled that the State of Iowa and its employees have Eleventh Amendment immunity from liability, which had not been waived by the state, and thefore dismissed claims against those defendants. Sophapmysay v. City of Sergeant Bluff, 126 F. Supp. 2d 1180 (N.D. Iowa 2000).

Police officer was not liable for failure to provide transportation to intoxicated man found on the street who subsequently was attacked, robbed, beaten and thrown over the side of a bridge by several individuals.

            An intoxicated man stopped to sit on a bench in front of a county library late at night. When a police officer driving by observed his inebriation and stopped to speak to him, he asked the officer to give him a ride to his brother's residence, located approximately 3-4 miles away. The officer refused to do so, and also failed to summon a cab to come and transport him, as he then requested.

            After the officer drove away, the man started walking again but was accosted by several individuals who robbed him, beat him, and threw him over the side of a bridge, causing a fall of approximately twenty-five feet and severe permanent injuries.

            The injured man sued the officer and the city for negligence under North Carolina law, arguing that the officer had a duty to assist him as an intoxicated individual. and to aid a person in "obvious peril who requested assistance." He argued that the officer had a "special relationship" with him because of this request, imposing a duty to provide protection.

            An intermediate North Carolina appeals court ruled that the officer and city were not liable. It found that the officer did not make any promises of protection which would create a special relationship, and the lawsuit therefore did not come within an exception to the public duty doctrine, under which there is no liability for failure to furnish police protection to specific individuals. The court further found that even if the officer had promised to call a taxicab and then failed to do so, such a promise was "merely gratuitous and hence not sufficient to constitute an actual promise of safety."

            The court found that various state statutes encouraging the providing of assistance to individuals with mental illness, developmental disabilities, and substance abuse problems "do not place an affirmative obligation on a police officer to transport an intoxicated individual, or to call for hired transportation." They merely state that a police officer "may" provide assistance or transportation, but do not require him to do so. Lane v. City of Kinston, No. COA00-265, 2001 N.C. App. LEXIS 178.

Text: <http://www.aoc.state.nc.us/www/courts/>.

Officers were entitled to qualified immunity on claim that their search warrant for a residence was overbroad, when they could reasonably have believed that the residence was a single family home with multiple unrelated occupants; once they realized, however, that some rooms were separate living units, the scope of the permissible search would narrow, and further detention, at that point, of residents of other rooms might also become unreasonable.

            California police officers executed a search warrant for deadly weapons and evidence of street gang membership on a residence where a primary suspect in a gang-related drive-by shooting lived. The warrant authorized a search of the entire residence, which was owned by a man who lived there only part-time. Other occupants included the man's 18 year old daughter, and several other unrelated boarders who rented rooms in the house, space in the garage and motorhouses and vans parked in the backyard.

           During the search, officers apparently learned that some of the boarders lived in rooms that were essentially set up as separate studio apartment living units, with locks on the doors and their own refrigerators, cooking supplies, food, etc. Despite this, the officers continued searching the entire residence. They found the residence owner's daughter in bed, allegedly forcibly turning her over, handcuffing her, and detaining her in the bedroom until the residence was cleared and secured.

            She and other residents were taken to the garage where they were detained in handcuffs for approximately two to three hours, during which officers allegedly refused to inform them why they were being detained and immigration officers were contacted and came to the scene to interrogate the detained residents about their citizenship.

            The owner and his daughter sued officers and the police chief, as well as the city, arguing that the search warrant was overbroad, that the search was conducted in an overbroad and unreasonable manner, that the daughter was unreasonably detained, and that property was unnecessarily damaged during the search.

            A federal appeals court ruled that the individual defendants were entitled to qualified immunity on the claim that the search warrant was overbroad, since they could have believed, on the basis of the information they had, that the residence was a single family home with multiple residents, and that the suspect in the crime being investigated had access to it all. It further found, however, that once they realized that there were multiple units, the defendants would have only had probable cause to search the suspect's room, the common areas of the house, and a room allegedly occupied by a fellow gang member. There was, however, "virtually no evidence" to show that the suspect had access to or control of locked rooms inhabited by other residents, such as the owner's daughter.

            The court further ruled that, if the jury concluded that the officers conducted an overbroad search at that point, the detention of residents could be justified "only in connection with whatever search the jury concludes to have been 'proper.'" In this case, there was no evidence that the owner's daughter had committed a crime, posed any sort of threat to the officers, or was in any way resisting arrest or attempting to flee. A jury "could conclude," therefore, that her detention "past the point of a proper search violated the 4th Amendment."

            The appeals court also denied the defendants qualified immunity on the claim that they engaged in "unnecessarily destructive behavior," such as breaking down doors that were unlocked. Factual disputes over whether the officers failed to "knock and announce" before forcing entry also were found to present triable issues for a jury. Mena v. City of Simi Valley, No. 99-56720, 226 F.3d 1031 (9th Cir. 2000).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross-reference: False Arrest/Imprisonment: Wrongful Detention].

Entry into home was valid, based on consent of 13-year-old daughter of couple, left to care for four minor children; probable cause existed to make arrest for neglect.

            A Florida couple left their home to look for a friend who had promised assistance in relocating them to a new residence. While they were gone, police officers arrived at the home and found their four minor children left in the custody of their 13-year-old daughter, who consented to their entry into the home.

            Once inside, the officers found conditions leading them to believe that the children were being neglected, and they subsequently arrested the couple for misdemeanor child neglect.

            After they were acquitted, they sued the officers for false arrest, and argued that their 13-year-old daughter could not legally have consented to the officers' entry into the home.

            Upholding a jury verdict for the defendant officers and city, an intermediate Florida appeals court found no error in the trial court's determination that the consent was valid or the jury's finding that probable cause for the arrest was present. Gonzalez v. City of Tampa, No. 99-1919, 776 So. 2d 290 (Fla. App. 2000).

Text: <http://jud10.flcourts.org/2ndDCA/2ndCA.html>. [Cross-reference: False Arrest/Imprisonment: No Warrant].

Eight 8th-graders strip searched by officer during search for missing money were entitled to $5,500 each in damages; search was "invasive and degrading" and not based on individualized suspicion that any of them had taken the money.

            A police officer summoned to an elementary school in Illinois conducted strip searches in a gym locker room of 30-35 eighth grade students during his investigation of money three students reported missing.

            A federal trial judge ruled that the searches were unreasonable under the Fourth Amendment, since he had "no reasonable grounds for believing that any particular student he searched" had taken the missing money. Indeed, there was evidence to show that the officer stated during the searches of several students that "he knew they were not guilty."

            The court ruled that in the absence of individualized suspicion, the searches were unreasonable regardless of whether a probable cause standard or the "less stringent standard used for school searches by school agents" was applied. Under New Jersey v. T.L.O., 469 U.S. 325 (1985), a search of students by school agents may be justified when there are "reasonable grounds" for suspecting the search will turn up evidence of a violation of the law or school rules, so long as the search is "justified at its inception" and "permissible in scope."

            The strip searches conducted were "invasive and degrading," and not "reasonably related to the objectives of the search," the court found, since they were searches for missing money, "not drugs or weapons," and there "certainly was no risk of imminent harm to the students." A jury awarded the eight plaintiff students $5,500 each in compensatory damages and $1 each in punitive damages. Bell v. Marseilles Elementary School, No. 00-C-2553, U.S. Dist. Ct., N.D. Ill., reported in Chicago Tribune, p. 14 (May 3, 2001).

Bell v. Marseilles Elementary School, No. 00-C-2553, U.S. Dist. Ct.,
                N.D. Ill., reported in Chicago Tribune, p. 14 (May 3, 2001).[110]
Cooper Industries, Inc. v. Leatherman Tool Group, Inc., No. 99-2035, 2001 U.S. LEXIS 3520.[101-102]
Glenn v. City of Tyler, #00-40133, 242 F.3d 307 (5th Cir. 2001).[99-100]
Gonzalez v. City of Tampa, No. 99-1919, 776 So. 2d 290 (Fla. App. 2000).[109-110]
Haggerty v. Daniels, No. 99-L-006486, Circuit Ct. of Cook County, IL.,
                reported in Chicago Tribune, p. 1 (May 8, 2001).[102-103]
Kostrzewa v. City of Troy, #00-1037, 2001 U.S. App. LEXIS 7362 (6th Cir.).[99]
Lane v. City of Kinston, No. COA00-265, 2001 N.C. App. LEXIS 178.[107-108]
Lathon v. City of St. Louis, #00-1521EM, 242 F.3d 841 (8th Cir. 2001).[106-107]
Lee v. County of Los Angeles, No. No. CV-96-07268-WMB, U.S. Dist. Court (C.D. Cal. 2001).[102]
Lee v. City of Los Angeles, No. 98-55807, 2001 U.S. App. LEXIS 8150 (9th Cir.).[102]
Mena v. City of Simi Valley, No. 99-56720, 226 F.3d 1031 (9th Cir. 2000).[108-109]
Munley v. Carlson, 125 F. Supp. 2d 1117 (N.D. Ill. 2000).[105-106]
Navarro v. Block, No. 99-55623, 2001 U.S. App. LEXIS 8874 (9th Cir.).[101]
Nelson v. Wrecker Services, Inc., #C0-00-1363, 622 N.W.2d 399 (Minn. App. 2001).[104]
Sanders v. N.Y. Depart. of Corrections, No. 97 Civ. 7112 (DAB), U.S. Dist. Ct. (S.D.N.Y. April 12, 2001),
                reported in The New York Times, National Edition, p. A14 (April 13, 2001).[102]
Sophapmysay v. City of Sergeant Bluff, 126 F. Supp. 2d 1180 (N.D. Iowa 2000).[107]
Trigalet v. City of Tulsa, Okl., #98-5261, 239 F.3d 1150 (10th Cir. 2001).[103-104]
Udemba v. Nicoli, #00-1246, 237 F.3d 8 (1st Cir. 2001).[105]
Yang v. City of Chicago, No. 88656, 745 N.E.2d 541 (Ill. 2001).[100-101]