June, 2001 web edition

Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a seatbelt violation, even though it is only punishable by a fine.

            In a 5-4 ruling, the U.S. Supreme Court has ruled that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

            The case involved a Texas woman stopped by a police officer for a seatbelt violation. She was driving in a vehicle with her two minor children, and the officer stopped them after observing that none of them was wearing a seatbelt. Following the stop, he allegedly verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. She was released after one hour in a jail cell, and ultimately paid a $50 fine for violating the seatbelt statute. She sued, claiming that a full custodial arrest under these circumstances, for a misdemeanor offense only punishable by a fine, should be held unreasonable under the Fourth Amendment.

            An officer may arrest an individual without violating the Fourth Amendment, the Court stated, if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officers presence. In this case, the Court further found that the arrest was not made in an extraordinary manner, unusually harmful to her private or physical interests. While the arrest and subsequent booking may have been "humiliating" to the plaintiff, it was "no more harmful" to her interests than the "normal custodial arrest," and therefore could not be the basis for federal civil rights liability. Atwater v. City of Lago Vista, No. 99-1408, 2001 U.S. LEXIS 3366.

Text: <www.findlaw.com/casecode/supreme.html>. [Cross-reference: False Arrest/Imprisonment: No Warrant].

Hospital's policy, developed in cooperation with local police and prosecutors, of subjecting some pregnant women patients to drug tests, the positive results of which were turned over to law enforcement to prosecute patients for use of cocaine, resulted in searches which were unreasonable under the Fourth Amendment in the absence of patient consent.

            The U.S. Supreme Court has ruled that a state hospital policy, developed by a South Carolina hospital after consultation with local police and prosecutors, subjecting pregnant patients with certain symptoms to urine tests aimed at obtaining evidence of cocaine use (which was then reported to police) resulted in unconstitutional searches, in the absence of consent from the patients involved. The Court ruled that the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.

            The case stemmed from a federal civil rights lawsuit against police, the hospital, and other defendants for violation of the Fourth Amendment brought by hospital patients arrested after testing positive for cocaine. Because of the objective of generating evidence for law enforcement purposes, and given the "extensive involvement of law enforcement officials at every stage of the policy," the Court rejected the argument that the searches were justified by the hospital's interest in protecting the health of both mothers and children. Ferguson v. City of Charleston, No. 99-936, 121 S. Ct. 1281 (2001).

Text: <www.findlaw.com/casecode/supreme.html>. [Cross-reference: Search and Seizure: Person].

Officer who sprayed arrestee in the face with pepper spray a second time while she was sitting in the back seat of a police vehicle with her hands handcuffed behind her was liable for $1,000 in compensatory and $40,000 in punitive damages, as well as $12,877.97 in attorneys' fees and costs.

            Four Connecticut officers stopped a car for an alleged traffic violation. After a female passenger in the car stepped outside the vehicle and confronted the officers, she was restrained and arrested. Before placing her in the back seat of the police vehicle, one of the officers sprayed her once in the face with cap stun (pepper spray) because she was resisting.

            She was yelling and kicking in the backseat of the car. She later stated that this was because she was having a strong reaction to the cap stun, could not see, and was having difficulty breathing. At the time, her hands were handcuffed behind her back. Another one of the officers then approached the police vehicle, opened the door, and, without checking on her physical condition, sprayed her in the face with cap stun again.

            She sued the officers for excessive use of force. The jury returned a verdict in favor of three of the officers, but awarded the plaintiff $1,000 in compensatory and $40,000 in punitive damages against the officer who sprayed her the second time. The trial judge refused to set any portion of this award aside, finding that the jury could award punitive damages based on evidence that the officer sprayed her a second time while she was restrained "without checking on the plaintiff's physical condition." The court also awarded $12,000 in attorneys' fees and $877.97 in costs to the plaintiff. Blackledge v. Carlone, 126 F. Supp. 2d 224 (D. Conn. 2001).

Man who suffered permanent brain damage after an assault by police officers was properly awarded $700,000 for past and future pain and suffering, but was also properly denied any award for lost earnings when he was unemployed at the time of the incident and receiving "social security benefits," according to his own testimony.

            "Uncontroverted evidence" established that a New York man suffered permanent brain damage "as a result of an assault upon him by police officers." A jury awarded him $200,000 for past pain and suffering and $500,000 for future pain and suffering.

            An intermediate New York appellate court upheld this award, finding that the amounts were not excessive, but rather reasonable under the circumstances. At the same time, it upheld the trial court's refusal to award any damages for lost earnings. Testimony in the case established that the plaintiff worked "occasionally as a security guard" and was paid "off the books." He also testified that at the time of the assault, he was unemployed and receiving "social security benefits." This evidence was insufficient to establish any "lost earnings claim." Ramirez v. City of New York, 719 N.Y.S.2d 289 (A.D. 2001).

Text: <www.courts.state.ny.us/reporter/Decisions.htm>. [Cross-references: Damages: Compensatory].

Officer was not entitled to qualified immunity for bringing arrestee to county jail when arrest warrant plainly stated that she was to be brought "before a judge immediately" and allowed to pay a $235 cash bail; arrestee instead spent three days in jail and was twice strip searched; negligent failure by county personnel to recall bail warrant, however, could not be the basis for a federal civil rights claim.

            In a false arrest/imprisonment lawsuit brought by a Maine arrestee, the arresting officer was not entitled to qualified immunity, a federal appeals court held, considering that he brought the arrestee to the jail, despite the warrant's plain requirement in writing that she be brought "before a judge immediately" and be allowed to pay a $235 cash bail.

            The warrant was for failure to appear in court and pay a $235 fine. After the arrest, in jail, she was strip searched and, while naked, required to squat and cough, and then placed into a cell adjacent to male inmates, and later again subjected to another strip search and required to again squat naked and cough, and only released on bail after a three day holiday weekend. The court ruled that further proceedings were required on claims against the officer and on claims concerning whether the strip searches were unreasonable.

            At the same time, the appeals court held that county personnel's negligent failure to recall the bail warrant after the fine had been paid "did not rise" to "constitutional dimensions" as required for a federal civil rights claim against the county. Miller v. Kennebec County, No. 99-2079, 219 F.3d 8 (1st Cir. 2000).

Text: <http://www.law.emory.edu/1circuit>.

Officer liable for $35,000 for civil rights violation and false imprisonment of attorney arrested for alleged interference with apprehension of two of his clients; lawsuit asserted officer and prosecutor obtained arrest warrant based on false/misleading information; prosecutor also liable for $65,000.

            An attorney was arrested after a warrant was issued charging him with interfering with the apprehension of two of his clients. The warrant was obtained by a state police officer, with the assistance of a local prosecutor. Charges against the attorney were ultimately not pursued, and he sued both the officer and prosecutor for violation of his Fourth Amendment rights, asserting that they used misleading and false information to obtain the warrant.

            The lawsuit also asserted claims for defamation against the prosecutor and for false imprisonment and malicious prosecution against both defendants. The jury found both defendants liable for civil rights violations and false imprisonment, and further found the prosecutor liable for malicious prosecution and defamation. It awarded $100,000 in damages, including $55,000 in punitive damages. The officer was held responsible for $35,000, with the prosecutor liable for the remainder. An appeal has been filed. Etoch v. Newton, Ark., No. CIV-96-105, Phillips County Cir. Ct., Ark., Sept. 14, 2000, reported in ATLA Law Rptr. (Feb. 2001). [Cross-references: Defamation; Malicious Prosecution].

Trial judge erroneously failed to instruct jury on the constitutional rules for the use of deadly force in lawsuit brought by burglar shot by police officer; error was harmless, however, since a jury instruction on a state law claim, on which the jury also found no liability, included the proper legal standard.

            A burglar and his accomplice fleeing from the premises of a check-cashing business on a bicycle with some rolls of coins dropped them and stopped to retrieve the money. A police officer who heard the burglar alarm, saw them on the street scooping up coins. The officer took a hunting knife away from the burglar, and after a chase and a struggle, shot the burglar.

            The officer asserted that he shot the burglar to prevent him from grabbing his gun, after feeling a tug at it, while the burglar claimed that he was shot while in the act of surrendering. He sued the officer and city for excessive use of force.

            A jury returned a verdict for the defendant officer. A federal appeals court ruled that the trial judge erred in giving the jury a general instruction on the need for force to be "reasonable," and not specifically giving an instruction about the constitutional requirements for use of deadly force under Tennessee v. Garner, 471 U.S. 1 (1985).

            "An excessive force instruction is not a substitute for a Garner deadly force instruction," the court stated. "Today, we make clear that in a police shooting case such as this, where there was no dispute that deadly force was used, the district court abuses its discretion by not giving a Garner deadly force instruction." At the same time, the appeals court ultimately held that the error was harmless because the trial judge gave an instruction on a state law claim arising out of the shooting which stated the correct legal standard for the use of deadly force. There was sufficient evidence from which the jury could have concluded that the officer reasonably believed that deadly force was necessary to protect himself. Monroe v. City of Phoenix, #99-16974, 2001 U.S. App. LEXIS 6610 (9th Cir.).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>.

City could not be held liable for alleged assault on man sitting on park bench by unidentified person claiming to be a police officer, when plaintiff was completely unable to substantiate his claim that it was indeed a police officer employed by the city who assaulted him.

            A New York man claimed that while he was sitting on a park bench, he was approached by a "slovenly-dressed individual who appeared to be homeless," who then "flashed a badge," told him that he was a police officer, and then struck him on the head, handcuffed him, and dragged him toward an unmarked black van, calling him a "child molester." He further claimed that he was then thrown to the ground, kicked in the spine, and shoved into the back of the van, where two other unidentified individuals took his sunglasses and identification and poured hot coffee on him. He was then released and told to "go cleanse your sins."

            He sued the city and "unidentified New York City police officers" for violations of his civil rights, including excessive force and false arrest. A federal trial court granted summary judgment to the defendant city, noting that the plaintiff was unable to link the van's partial license plate number to any vans owned by the city, or in any other way substantial his claim that it was city employees who assaulted him. While ordinarily, municipal civil rights liability can only be based on a finding of an official policy or custom, the court found it unnecessary to even reach this issue, since the plaintiff had not shown that he had been deprived of any rights by a city police officer. "If a person has suffered no constitutional injury at the hands of the individual police officer," the court noted, "the municipality cannot be held liable." Saltz v. City of New York, 126 F. Supp. 2d 657 (S.D.N.Y. 2000).

Denver jury awards $2.25 million to family of young man killed in collision with police vehicle traveling at high speed in non-emergency situation, which allegedly went through a red light with flashing lights activated, but no siren.

            A 22-year-old man was driving a date home at 4 a.m. in Colorado when a Denver police officer, driving 65 miles per hour in a 35 mile per hour zone went through a red light and hit his vehicle. The officer's vehicle had flashing lights activated, but no siren. The ensuing collision resulted in the man's death. His mother sued the city for violation of the decedent's civil rights. A jury awarded the plaintiff a total of $2.25 million in damages, finding that the officer's conduct met the legal standard set forth by the U.S. Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998).

            Under this standard, a plaintiff seeking recovery for federal civil rights liability based on a high-speed vehicle accident must show that the officer's conduct "shocks the conscience." In emergency situations, the trial court in the Colorado case found, this standard requires a showing that the officer intended to cause harm, while in non-emergency situations, which the court ruled applied in this case, only deliberate indifference or reckless disregard to the possibility of harm is required. The officer was on his way to help another officer make an arrest for a minor theft at the time the accident occurred.

            Evidence about the police department's alleged hiring of the officer despite a "bad" driving record was withheld from the jury, focusing the jury's attention only on the officer's conduct on the night of the incident. An appeal by the city is anticipated if post-trial motions fail to set aside or reduce the award. Williams v. City & County of Denver, No. 90-N117611a, U.S. Dist. Ct., Denver, Co., reported in The National Law Journal, p. A6 (April 16, 2001).

Estate of woman who died following police high-speed pursuit of suspect driving the wrong direction on an interstate highway was not entitled to jury's award of $744,000 when evidence did not show that the officers had an "intent to harm."

            A Pennsylvania trial judge has overturned a jury's award of $744,000 to the estate of a woman who died as a result of a collision with a fleeing suspect who was driving the wrong direction on an interstate highway during a high-speed pursuit by police. The judge ruled, in setting aside the award, that the plaintiffs had not presented evidence that officers had an "intent to harm," as required by County of Sacramento v. Lewis, 523 U.S. 833 (1998). Smith v. City of Philadelphia, Philadelphia, Pa., Common Pleas Ct., National Law Journal, p. A7 (April 23, 2001).

Trial court acted within its discretion in dismissing federal civil rights lawsuit against city based on plaintiff's failure to comply with discovery requests; plaintiff did not answer 13 written interrogatories and instead stated that he might inform the public "what a pack of morally degenerate corrupt fascists Defendants are" by putting the information on the internet.

            A Missouri man sued a city and various city employees or ex-employees, claiming that there was a "deliberate policy of obstruction of justice and encouraging false arrests and assaults" upon him. The litigation began following a fight between the plaintiff and a city councilman following a council meeting, and swiftly became more complicated.

            Ultimately, the trial court dismissed the plaintiff's complaint because of his failure to comply with discovery requests from the defendants' attorney, specifically 13 written interrogatories requesting information about himself, the names of persons having information about the incidents alleged in the complaint, and certain documents and statements.

            He had replied to a motion for dismissal by explaining that he had "put off" answering these interrogatories because he believed, based on past experience, that the defendants' law firm "likes playing games with the discovery process," and also said that he was more than "willing to provide discovery in this matter, or they can read it" off "the Internet with the rest of the public as Plaintiff informs the whole WorldWide Web" via a website "what a pack of morally degenerate corrupt fascists Defendants are. If Plaintiff is not going to get justice in the courts he might as well seek his payback somewhere else."

            A federal appeals court upheld the dismissal of the lawsuit. The discovery requests made were "straightforward and relatively simply," and his "intentional disregard" of them rendered the dismissal of his lawsuit as a sanction as something well within the discretion of the trial judge. Lindstedt v. City of Granby, No. 99-2624, 238 F.3d 933 (8th Cir. 2000).

Police officer injured in vehicle accident in car driven by another officer was properly awarded damages against city, based on finding that driver's entering of an intersection at a high rate of speed against the flow of traffic without blowing horn was "reckless"; department memo mandating use of portable flashing lights on unmarked cars admitted into evidence and could be considered on issue of recklessness.

            A police officer was sitting in the front passenger seat of an unmarked police vehicle driven by a fellow officer when the other officer had an accident after approaching an intersection at a high rate of speed against the flow of traffic on a one-way street. In his personal injury lawsuit against the city and his fellow officer, he claimed that the driving officer entered the intersection without blowing the horn or giving any other type of warning, and without slowing down. The unmarked car was not equipped with a turret light or siren.

            A jury awarded the plaintiff officer damages. Upholding this award, an intermediate N.Y. appellate court found that the facts alleged were sufficient to support the conclusion that the fellow police officer was "reckless," which was sufficient for liability under N.Y. General Municipal Law Sec. 205(e), since reckless driving was a violation of the motor vehicle code.

            The court further found that an internal police department "Chief of Department Memo" indicating that officers should use portable flashing lights on unmarked cars was properly admitted into evidence, "as qualified by a specific jury instruction that the memorandum was not a rule, regulation or requirement within the meaning of General Municipal Law Sec. 205-e, and thus was not a statutory predicate for that cause of action." Instead, it could be considered only as "some evidence of recklessness along with all other factors." O'Connor v. City of New York, 719 N.Y.S.2d 656 (A.D. 2001).

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

Jury's award of $1 million for past and future pain and suffering to police officer who was a passenger in a vehicle driven by another officer was appropriate; no recklessness on the part of the driving officer needed to be shown when the vehicle was not responding to an emergency call at the time of the accident.

            A New York City police officer was a passenger in a police vehicle driven by another officer. While responding to a radio call involving a family dispute, the car was struck at an intersection by a civilian vehicle. The driver of the police vehicle testified that under police department criteria in effect at the time, the call was classified as a "non-crime," and was not considered an emergency. He did not turn on his turret lights or siren, therefore, and did not change his speed.

            The injured officer sued the city and the driving officer for his injuries. The jury found the defendants 100% at fault for the accident and awarded the plaintiff officer $1 million ($225,000 for past pain and suffering and $775,000 for future pain and suffering). Upholding this award, an intermediate New York appellate court found that the question of whether or not the vehicle was involved in an emergency situation at the time was a question for the jury to decide, and that the trial court's failure to instruct the jury on "recklessness" was not erroneous, since the jury found that the police vehicle was not involved in an emergency operation at the time. A showing of recklessness would only have been required for liability in an emergency operation. Criscione v. City of New York, 719 N.Y.S.2d 687 (A.D. 2001). [Cross-reference: Negligence: Vehicle].

County sheriff had a duty to protect cross-dressing rape victim against threats by her assailants that they would kill her if she reported the crime; sheriff's "demeaning" and "accusatory" statements to victim during interview were "outrageous" as a matter of law; Nebraska Supreme Court rules that mother of murdered rape victim must be awarded full $80,000 for decedent's pain and suffering, as well as some amount for loss of companionship and orders further proceedings on emotional distress claim based on sheriff's conduct.

            A 21-year-old woman who had been sexually abused as a child suffered from a gender identity disorder, and attempted to pass as a man by crossdressing and cutting her hair. She obtained a driver's license identifying herself as a male, and even dated a woman who believed her to be male. After she was arrested on forgery charges for forging checks, she was placed in a female area of the jail. A male friend later bailed her out, but he and a buddy of his then became suspicious about her sexual identity.

            The two male "friends" attacked her, hitting her in the head, kicking her in the ribs, and stepping on her back. They then drove her to a remote location where they both sexually assaulted her, following which they beat her again and threatened to kill her if she reported the rape.  She reported the rape and the threats to law enforcement. The county sheriff interviewed her, and asked a number of questions about her gender identity disorder and prior sexual experiences. In conversations with witnesses, the sheriff later referred to the victim as an "it."

            No arrests were made for the rape. The two assailants instead, a number of days later, murdered the rape victim and two witnesses. They were later convicted of the three murders. The rape victim's mother filed a lawsuit against the county and the sheriff, seeking damages for failure to protect her.

            The trial court found that the county and sheriff were in fact negligent in failing to protect the decedent, and set economic damages at $6,223.20 and noneconomic damages at $80,000 for predeath pain and suffering. It also, however, ruled that the decedent herself was 1% contributorily negligent for her death, and that the damages should also be reduced by 85% for the intentional wrongdoing of the murderers, with the judgment against the county totaling $17,360.97.

            The trial court denied recovery on an intentional infliction of emotional distress claim, finding that the sheriff's conduct was not "extreme and outrageous" and that there was a failure to prove that the decedent suffered as a result of it. Finally, the trial court awarded only "nominal damages" for the mother's loss of society, comfort and companionship.

            In a strongly worded opinion, the Supreme Court of Nebraska, while agreeing with the trial court's determination that the county had a duty to protect the decedent under the circumstances, found that there was no evidence supporting the finding that the decedent was herself negligent in any way. It also found that it was improper, under the state's comparative negligence laws, to reduce the damages awarded by 85% for the intentional wrongdoing by the murderers.

            It further held that, as a matter of law, the sheriff's conduct was "extreme and outrageous, beyond all possible bounds of decency, and is to be regarded as atrocious and utterly intolerable in a civilized society." Statements he made to the decedent during his interview with her used "crude and dehumanizing language," implied that she "willingly participated" in the sexual acts, and focused on things like her gender identity disorder (such as whether she "kissed other girls") which had nothing to do with the crime under investigation. His tone was "demeaning, accusatory, and intimidating. The interview in question was tape recorded. The court therefore ordered further proceedings as to whether the decedent suffered severe emotional distress caused by the sheriff's conduct, and if so, what damages should be awarded. (State law on such claims reportedly caps such damages at $1 million).

            Finally, it ruled that the failure to award money damages on the mother's loss of society, comfort, and companionship claim was "inadequate as a matter of law."

            On remand, therefore, the plaintiff must be awarded the full $80,000 in damages for pain and suffering, as well as any damages determined to be awarded on the emotional distress and loss of companionship claims, unreduced by any amount for the actions of the decedent herself or her killers. Brandon v. County of Richardson, #S-00-022, 261 Neb. 636, 2001 Neb. LEXIS 69.

Text: <http://court.nol.org/opinions/opinindex.htm>. [Cross-references: Damages: Compensatory; Emotional Distress; Family Relationships].

            EDITOR'S NOTE: The case reported above was the basis for the movie "Boys Don't Cry," for which Hilary Swank was awarded a Best Actress Oscar for her portrayal of the crime victim.

Federal appeals court reinstates claims against officers and city based on officers ejection of intoxicated bar patron into subfreezing temperatures outside wearing only jeans and a tee shirt; officers' actions placed patron in a position of enhanced danger, so there might be liability for man's death from hypothermia; inadequate training claim also reinstated.

            A patron of a Montana bar became intoxicated and allegedly "belligerent." Police officers who arrived on the scene helped eject him from the premises, walking him outside into subfreezing weather. At the time, he was wearing only jeans and a tee shirt. One of the officers allegedly told him that he could not drive, since he was intoxicated, and also that he could not return to the bar.

            The patron subsequently died from hypothermia after walking away. Officers allegedly went looking for him after they found his coat inside the bar, but did not find him. His dead body was found the next day, curled up in an alleyway two blocks away. His parents sued the officers and city, claiming violation of a due process right of protection. The plaintiffs claimed that the officers, knowing that the decedent was intoxicated, placed him in danger by putting him outside in the cold weather without proper clothing.

            A federal appeals court has overturned the trial court's grant of qualified immunity to the defendant officers. The trial court erred in concluding that the officers did not "affirmatively place" the decedent in a "position of danger." They knew that he was intoxicated, that it was subfreezing, and that he was wearing inadequate clothing. Indeed, the fact that the officers later went looking for him "demonstrates that they were aware of the danger that he was in."

            The appeals court also overturned summary judgment in favor of the city. The trial court did not consider the police departments' alleged inadequate training policies concerning appropriate assistance and treatment of intoxicated persons, "because it found no constitutional deprivation." Since the appeals court found that there were genuine issues of material fact as to whether the officers' actions violated the decedent's rights, it also remanded for further consideration of the claim that any deprivation was caused by the deliberate indifference in failing to adequately train the officers. The appeals court also reinstated negligence claims under Montana state law, since the officers could be found to have affirmatively taken steps increasing the risk of danger to the decedent. Munger v. City of Glasgo Police Dept., No. 98- 36090, 227 F.3d 1082 (9th Cir. 2000).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross-reference: Administrative Liability: Training].

Paramedics responding to 911 call did not engage in willful and wanton misconduct by failing to take injured bar patron to the hospital when he refused treatment after they rendered him conscious and did not have reason to know that he was suffering from blunt impact injuries to his head from a fight rather than from intoxication alone.

            A patron of a bar in Ohio was involved in an altercation with another patron. A 911 call was placed from the bar, and a deputy sheriff and county emergency medical personnel arrived on the scene. It appeared to them that the man had passed out sitting in a chair and that he was intoxicated. When they managed to wake him up, he was uncooperative and "belligerent" and ordered them to leave him alone.

            He did not cooperate with their attempt to obtain his vital signs and refused to be taken to the hospital, and another person present said that his wife would transport the patron home. Later that day, the man was taken to the hospital from his home, and then pronounced dead while in emergency surgery. An autopsy revealed that he died from blunt impact injuries to his head. His wife sued the city and paramedics.

            Upholding summary judgment for the defendants, an intermediate Ohio appeals court found no evidence of willful and wanton misconduct by the paramedics, and therefore found that statutory immunity under state law barred any negligence liability. The paramedics failure to record various information on report forms was not "willful or wanton misconduct," especially in light of the decedent's lack of cooperation. Further, the paramedics had no reason to believe that he suffered from anything other than severe intoxication, and he refused treatment. Denham v. City of New Carlisle, No. 98-CA-19, 741 N.E.2d 587 (Ohio App. 2000).

Text: <www.sconet.state.oh.us/>.

UPDATE: $2.7 million settlement in case where Illinois jury awarded $50 million to parents of youth who died of an asthma attack after 911 emergency call was made.

            As previously reported, an Illinois trial judge vacated as excessive a jury award of $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. Plaintiffs in the case alleged that the 911 personnel took too long to pick up the call, and that paramedics response time once the call was taken was too slow. Gant v. City of Chicago, No. 97-L-3579, Chicago Daily Law Bulletin, p. 3 (March 8, 2001), Liability Reporter No. 339, p. 46 (March 2001). The plaintiffs and city have now settled the case for $2.7 million, prior to a scheduled May 1 trial date. Gant v. City of Chicago, No. 97-L-3579, Circuit Ct., Cook County, Ill., reported in The National Law Journal, p. A6 (April 23, 2001).

Officer was not liable for arresting female motorist on the basis of a recalled warrant, when the officer was unaware it was recalled; search requiring motorist to expose and rearrange her undergarments before using bathroom at station, however, was unreasonable when neither the crime involved in the arrest or any other circumstances created any suspicion that arrestee could be concealing contraband.

            A police officer pulled over a female motorist and discovered that there was an outstanding warrant for the driver's arrest. The warrant, which was for failure to pay a fine in connection with a traffic violation involving a broken tail light, had actually been recalled, but this was not known to the dispatcher who informed the officer of it. The officer took the motorist to the station. Once there, she asked to use the bathroom, and the arresting officer, who was also female, conducted a search prior to allowing her to use the facilities.

            While the arrestee was not required to remove all of her clothes, she was subject to a search aimed at uncovering contraband that may have been concealed in her underwear. Upon entering the bathroom, the officer frisked her and patted her down, and then asked her to raise her skirt, expose and pull out (but not remove) her bra, and asked to lower her pants to her thighs. She was not asked to remove her underpants, but to reposition them so as to dislodge anything that might have been concealed.

            She later sued the village and the officer for false arrest and unreasonable search and seizure, characterizing the search that was conducted as a "strip search." A federal trial court found that there was no liability for the mistaken arrest on the recalled warrant. This constituted, at most, negligence, and appeared to be an "isolated incident." The officer did not know that the warrant was recalled, and acted reasonably in taking the plaintiff into custody.

            The court found, however, that the search conducted was unreasonably under the circumstances. While it was "not a full strip search," it was not justified either by the nature of the crime for which the plaintiff was arrested or by "any facts or circumstances" surrounding the arrest.

            The officer had no suspicion, "reasonable or otherwise" that the plaintiff was concealing contraband. The court reserved for trial issues concerning possible qualified immunity for the officer, municipal liability, and damages. Mason v. Village of Babylon, 124 F. Supp. 2d 807 (E.D.N.Y. 2000). [Cross-references: False Arrest/Imprisonment: Warrant].

Atwater v. City of Lago Vista, No. 99-1408, 2001 U.S. LEXIS 3366.[83]
Blackledge v. Carlone, 126 F. Supp. 2d 224 (D. Conn. 2001).[84]
Brandon v. County of Richardson, #S-00-022, 261 Neb. 636, 2001 Neb. LEXIS 69.[90-92]
Criscione v. City of New York, 719 N.Y.S.2d 687 (A.D. 2001).[90]
Denham v. City of New Carlisle, No. 98-CA-19, 741 N.E.2d 587 (Ohio App. 2000).[93]
Etoch v. Newton, Ark., No. CIV-96-105, Phillips County Cir. Ct., Ark.,
                Sept. 14, 2000, reported in ATLA Law Rptr. (Feb. 2001).[85-86]
Ferguson v. City of Charleston, No. 99-936, 121 S. Ct. 1281 (2001).[83-84]
Gant v. City of Chicago, No. 97-L-3579, Circuit Ct., Cook County, Ill.,
                reported in The National Law Journal, p. A6 (April 23, 2001).[93-94]
Lindstedt v. City of Granby, No. 99-2624, 238 F.3d 933 (8th Cir. 2000).[88-89]
Mason v. Village of Babylon, 124 F. Supp. 2d 807 (E.D.N.Y. 2000).[94]
Miller v. Kennebec County, No. 99-2079, 219 F.3d 8 (1st Cir. 2000).[85]
Monroe v. City of Phoenix, #99-16974, 2001 U.S. App. LEXIS 6610 (9th Cir.).[86-87]
Munger v. City of Glasgo Police Dept., No. 98-36090, 227 F.3d 1082 (9th Cir. 2000).[92-93]
O'Connor v. City of New York, 719 N.Y.S.2d 656 (A.D. 2001).[89-90]
Ramirez v. City of New York, 719 N.Y.S.2d 289 (A.D. 2001).[84-85]
Saltz v. City of New York, 126 F. Supp. 2d 657 (S.D.N.Y. 2000).[87]
Smith v. City of Philadelphia, Philadelphia, Pa., Common Pleas Ct.,
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Williams v. City & County of Denver, No. 90-N117611a, U.S. Dist. Ct., Denver, Co.,
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