March, 2001 web edition

UPDATE: Federal appeals court reinstates lawsuit over use of pepper spray to compel compliance by anti-logging protestors, disagrees with trial judge who ruled that no reasonable juror could view its use in these circumstances as excessive force.

            Protesters who opposed the logging operations of a lumber company chained themselves inside metal sleeves at the company headquarters and at the office of a Congressman who supported logging. They also chained themselves, during a third protest, to company logging equipment. On all three occasions, officers used aerosol oleoresin-capsicum (OC), otherwise known as "pepper spray," as a method of attempting to get the demonstrators to stop resisting arrest.

            While officers discussed using a grinder to cut the demonstrators out of their steel bindings, they determined that the use of OC was the safest and quickest means of effecting arrest. The OC was only used after the officers repeatedly asked the demonstrators to release, and repeatedly warned them that if they did not comply OC would be applied. Cotton swabs were used to apply a small amount of liquid OC to each of the individual demonstrators on the outside corner of their closed eyes. A second application was used only on those demonstrators who did not release after the first application. During each incident, the officers applied water from a spray bottle in order to limit the discomfort caused by the pepper spray.

            A number of the demonstrators filed a federal civil rights lawsuit alleging that the use of the pepper spray in this manner constituted excessive force. After a trial, a jury deadlocked on whether the use of the force was reasonable. The trial judge, however, ruled that there would be no second trial, and he granted a directed verdict for the law enforcement defendants. He found that no reasonable juror could find that using pepper spray under these circumstances was unconstitutional use of excessive force. Headwaters Forest Defense v. County of Humboldt, 1998 U.S. Dist. LEXIS 16953, 1998 WL 754575, (N.D.Cal.), reported in Liability Reporter, No. 314, p. 20 (Feb. 1999).

            A federal appeals court reversed, reinstating the lawsuit, and ruling that a jury should determine whether the officers took reasonable action against the protesters and whether the policies and training of the departments concerning the use of the pepper spray were proper.

            The appeals court did not agree that the application of pepper spray was a "minimal intrusion upon the arrestees' personal integrity" without "significant risk of physical injury. The appeals court stated that the protesters were "nonviolent and unarmed, including many "young women, 2 of whom were minors" and none of whom were "physically menacing. They posed no safety threat to themselves, the officers, or the public at large."

            "The use of pepper spray on a suspect is not reasonable simply because the police have the legitimate objective of making an arrest. It is only reasonable if such force is needed to make an arrest in the circumstances. Here, a rational juror could conclude that the protesters' nonviolent misdemeanor offense of trespass did not render pepper spray necessary to effect their arrests." Headwaters Forest Defense v. County of Humboldt, #98-17250, 211 F.3d 1121 (9th Cir. 2000).

Text: <www.ce9.uscourts.gov/opinions>.

African-American arrestees stated claim for racial discrimination based on assertion of city practice or custom of using pepper spray and excessive force against them based on race; alleged breaking of arrestee's arm, use of pepper spray against him, and biting by police dog during "unnecessary" subduing was conduct which, if true, no reasonable officers could have believed was warranted.

            A federal trial court denied a motion to dismiss claims by African-American arrestees in North Carolina alleging that a city had a practice or custom of using excessive force and pepper spray against African-Americans. The court further held that officers who allegedly broke an arrestee's arm during an "unnecessary and unwarranted" subduing, then sprayed him with pepper spray, and finally allowed a police dog to bite him after he was handcuffed and on the ground, could not have believed that their conduct was warranted. They were therefore not entitled to qualified immunity. Wilkerson v. Thrift, 124 F. Supp. 2d 322 (W.D.N.C. 2000). [Cross-references: Assault & Battery: Physical; Dogs; Racial Discrimination].

After evidence of 80 pounds of hallucinogenic mushrooms seized from airplane were suppressed in criminal prosecution of plane owner, he could not recover, in subsequent federal civil rights case, damages related to the expenses of defending against the criminal charges.

            State troopers seized over 80 pounds of hallucinogenic mushrooms from a man's private airplane in Pennsylvania. The evidence of the drugs was later suppressed on the basis of a finding that the search and seizure was illegal, and the arrestee filed a federal civil rights lawsuit against four officers involved in the seizure.

            In the trial court, the plaintiff abandoned any claim for damages from the search itself and instead sought compensatory damages solely for expenses that he incurred during his criminal prosecution--$3,500 in bail-bond expenses, $23,000 in attorney's fees, and $2,000 for travel between Pennsylvania (the site of the prosecution) and his home in California.

            A federal appeals court upheld a determination by the trial judge that he could not receive damages for those litigation costs.

            "A plaintiff cannot recover the litigation expenses incurred because police officers discovered criminal conduct during an unconstitutional search." Victims of unreasonable searches or seizures "may recover damages directly related to the invasion of their privacy--including (where appropriate) damages for physical injury, properly damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution."

            The appeals court noted that it was not deciding whether a federal civil rights plaintiff "who was the victim of fabricated evidence" could sue for damages incurred after a prosecutor's decision to indict, since no such claim was presented in this case. Hector v. Watt, No. 00-3084, 235 F.3d 154 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-reference: Search and Seizure: Vehicle].

Sheriff's actions in providing deputies to accompany an employer who was firing two employees and asking them to leave the premises did not constitute defamation under Pennsylvania law; mere presence of deputies did not "communicate" anything that could damage the employees' reputations.

            Two employees of a private employer in Pennsylvania were given their final paycheck by a superior who came to their office accompanied by deputy sheriffs. The employees were told that they were fired and that they should take their personal belongings and leave the company's premises. The employees filed a lawsuit against the county sheriff, claiming that his conduct in providing the deputies to assist in firing them constituted defamation.

            An intermediate Pennsylvania appeals court upheld summary judgment for the defendant sheriff. There was no evidence, the court noted, that the sheriff "communicated" anything to anyone, including his deputies, which would have the tendency to damage the employee's reputations.

            The court rejected the argument that the mere presence of the deputies communicated to bystanders in the office the idea that the plaintiffs were "potential thieves," stating that "we decline to expand the meaning of defamation so broadly," as it would "then include many situations in which officers of the peace are employed as security. We also recognize that some situations, including involuntary terminations of employment, are volatile regardless of the character of the parties involved." D'errico v. DeFazio, 763 A.2d 424 (Pa. Super. 2000).

Police officer was entitled to qualified immunity for arresting a 17-year-old alien for failure to carry a "green card," based on a request from an INS agent who told him that an offense had been committed, despite the fact that federal law only criminalized such failure for those over 18; officer could reasonably rely on INS agent's knowledge of immigration law.

            A Massachusetts police officer and an agent of the Immigration and Naturalization Service (INS) were cooperating in investigating some activities allegedly related to Asian gang crimes in the area. The officer and agent were summoned to the scene when other officers stopped a vehicle containing four individuals, who were being questioned about a home invasion. The four were all aliens who claimed to be permanent residents (rather than citizens), none of whom had on their person an alien registration certificate (commonly referred to as a green card.             The INS agent asked the officer to place the four individuals under arrest for violating a federal law requiring that "every alien, eighteen years of age and over" must carry with him their green card "at all times." One of the men so arrested was only seventeen but did not mention this, and neither the agent or the officer asked him his age. The officer later testified that he did not know that failure to carry a green card was an offense.

            The arrested minor subsequently sued the officer for arresting him on the "green card" offense. A federal appeals court agreed that the arrest for failure to produce a green card lacked a reasonable basis because the arrestee was under eighteen, but further ruled that the officer was still protected by qualified immunity because of his reliance on the INS agent and his "ignorance of the complex immigration laws."

            The court noted that the U.S. Supreme Court, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), "left open the possibility that there might be 'extraordinary circumstances' where an official, acting in ignorance of clearly established law, might still be entitled to qualified immunity." This case, the court reasoned, "presents the question whether and when an officer who participates in an arrest" may "reasonably rely on a fellow officer or agent who does (or by position should) know the substantive law and the facts and who (based on that knowledge) asserts that an offense has been committed."

            When an authorizing officer has made a factual mistake "but the mistake is not apparent, immunity for the officer who reasonably assisted is well settled." The court held that the "outcome should not be different where the agent who directs or authorizes the arrest has made a mistake of law equally invisible to the assisting officer."  Federal immigration laws "are not ordinarily enforced by local police and there was nothing unnatural in" the officer's ignorance." Liu v. Phillips, No. 99-2336, 234 F.3d 55 (1st Cir. 2000).

Text: <http://www.law.emory.edu/1circuit>. [Cross-reference: False Arrest/Imprisonment: No Warrant].

Motorists arrested at gunpoint for nonpayment of parking fines were entitled to $5,000 each for excessive use of force; appeals court rules that jury's finding that officer's use of force was excessive was conclusive for purposes of qualified immunity analysis.

            Two brothers were driving to church one evening when an officer put on his lights to signal them to stop. He had adequate reasons to do so since a check showed that the license plate had been suspended for nonpayment of parking fines. The officer was not interested in this offense, however, but wanted instead to look into the possibility of drugs. The motorists were allegedly hesitant to stop on a poorly lighted street, and therefore drove slowly to a well illuminated gas station a mile away instead, where they pulled off and waited for the officer.

            The officer called in a report about a "chase" in progress and backup was summoned. With the aid of seven other officers (a total of eight squad cars) the officer then arrested them at gunpoint for the offense of not paying the parking tickets. The passenger was released after 25 minutes, and the driver after an hour. Nothing unlawful was found during a search of their persons and the car.

            The two occupants of the vehicle filed a federal civil rights lawsuit against the officer, arguing that they had been treated like "desperadoes who had been firing tommy guns out the windows." A jury awarded each of them $5,000 to compensate them for the "fright and indignity" they suffered when the officer treated "these scofflaws as if they were armed bank robbers apprehended after a high speed chase." The jury concluded that the officer used excessive force in violation of the Fourth Amendment

            The trial judge set the jury's award aside on the basis of qualified immunity. A federal appeals court reversed, ordering that the jury's award be reinstated. It held that "once a jury has determined under the Fourth Amendment that the officer's conduct was objectively unreasonable, that conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful."

            The court noted that this was not a case in which the judge concluded before trial that the officer was entitled to qualified immunity or in which the officer presented the argument that the excessive display of force should be distinguished from an excessive use of force. Instead, the officer accepted the jury's conclusion that the conduct violated the Fourth Amendment and argued that, even so, he was entitled to qualified immunity from civil liability. McNair v. Coffey, #00-1139, 234 F.3d 352 (7th Cir. 2000).

Text: <www.kentlaw.edu/7circuit/>. [Assault and Battery: Physical; Firearms Related: Intentional Use].

            EDITOR'S NOTE: Six federal courts of appeals currently apply a different rule--that the officer is entitled to qualified immunity unless a reasonable officer in his position would have known that legal standard set forth in Graham v. Conner, 490 U.S. 386 (1989) labeled his conduct excessive. See,  Napier v. Windham, 187 F.3d 177 (1st Cir. 1999); Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990); Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991); Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989); Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978); and Gold v. Miami, 121 F.3d 1442 (11th Cir. 1997).

            The approach taken by the Seventh Circuit in the case reported above, rendering the fact finder's determination of the excessiveness of the officer's force conclusive for qualified immunity purposes, is also followed by four other federal courts of appeal, under the rationale that, since the question of whether the force is excessive is one of "reasonableness," a determination that the force was "unreasonable" necessarily means that an officer could not have reasonably believed it to be necessary. See Holt v. Artis, 843 F.2d 242 (6th Cir. 1988); Katz v. United States, #98-16298, 194 F.3d 962 (9th Cir. 1999), full text: <http://www.ce9.uscourts.gov/opinions>. cert. granted sub. nom., Saucier v. Katz, #99- 1977, 121 S. Ct. 480 (2000); Street v. Parhan, 929 F.2d 537 (10th Cir. 1991); Scott v. District of Columbia, 101 F.3d 748 (D.C. Cir. 1996).

             In Saucier, the 9th Circuit refused to throw out a lawsuit by an animal rights activist against a military police officer who had led him away from a speech by the Vice President at a military base. The officer threw him into a van and allegedly handled him "roughly." The U.S. Supreme Court, in that case, may resolve the question of whether a determination of objectively unreasonable force necessarily precludes a defense of qualified immunity, or whether it can still be asserted.

Federal appeals court sets forth legal test for an equal protection claim based on unequal protection given to victims of domestic violence, while holding that sheriffs and deputies were entitled to qualified immunity from liability for failure to prevent husband's abduction, rape, and shooting of his estranged wife, since the law was not previously "clearly established" on the subject; possible alternate ground for liability, however, might be based on ill-will towards victim as a "class of one."

            A woman involved in an abusive marriage in Louisiana obtained a restraining order against her husband prohibiting him from coming near him. After he was served with the restraining order, he made several abusive and threatening phone calls to her, which she reported to police. Despite this and his failure to appear in court for sentencing on criminal charges arising out of his past misconduct with her, he was not arrested, although a warrant was issued. He subsequently allegedly abducted her, raped her and shot her in the chest with a 12-gauge shotgun.

            The injured woman and her father filed a federal civil rights lawsuit against two sheriffs and their deputies, alleging that they were denied equal protection of law because the defendants provided less protection to the victims of domestic assault than to the victims of other assaults.

            A federal appeals court, acting en banc, has ruled that the defendant law enforcement officers were entitled to qualified immunity, even if the allegations of the complaint were true, this did not violate "clearly established law" at the time of the incident. The appeals court did rule, however, that a gender-based equal protection claim based on law enforcement policies, practices, and customs toward domestic assault and abuse cases may be asserted if the plaintiff shows:

            1. the existence of a policy, practice, or custom of law enforcement to provide less protection to victims of domestic assault than to victims of other assaults;

            2. that discrimination against women was a motivating factor; and

            3. that the plaintiff was injured by the policy, custom, or practice.

            Accordingly, after this case, qualified immunity will not be available to officers in that circuit if that test is met.

            The appeals court did, however, rule that the plaintiffs should be allowed to amend their complaint concerning one deputy, the mother of the alleged assailant, who while working as a deputy received the call reporting her daughter-in-law's abduction. Although she informed another deputy of the call, neither deputy dispatched a radio transmission to inform other deputies of the complaint. The appeals court stated that if this deputy fostered "ill-will against her daughter-in-law that ultimately influenced the level of protection" she received, there might be a viable claim for unequal police protection within the framework stated in Village of Willowbrook v. Olech, #98-1288, 528 U.S. 562 (2000), full text: <www.findlaw.com/casecode/supreme.html>. (the equal protection clause can give rise to a cause of action on behalf of a "class of one" even when the plaintiff does not allege membership in a protected class or group such as a race or gender). While that case involved property rights and zoning issues, the court reasoned that its principles could also apply in a law enforcement context. Shipp v. McMahon, #98-31317, 234 F.3d 907 (5th Cir. 2000).

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

Officers' belief, based on complainant's statements, that arrestee had pointed a gun at him gave them probable cause to make an arrest; arrestee's ultimate guilt or innocence did not have any impact on their right to arrest.

            A homeowner in Florida went to the home of the president of a local homeowner's association to complain about a statement in the association's publication that he owed money to the group. The president allegedly came to the door with a gun in her hand. The homeowner called police and reported that he had been threatened and that the president had "pointed" a gun at him.

            Officers arrived and took statements from both parties. After the president admitted possessing the gun, but denied pointing it at the complainant, the officers believed the complainant and arrested the president. Charges against her were later dropped, and she sued the officers and the sheriff for false arrest.

            Upholding summary judgment for the defendants, an intermediate Florida appeals court found that the officers' belief that the plaintiff had pointed a gun at the complainant gave them probable cause to make the arrest, and her "ultimate guilt or innocence is irrelevant to the right, even the obligation, of the police to make an arrest in this case." Thomas v. Beary, 770 So. 2d 699 (Fla. App. 2000).

Officers had probable cause, based on facts known at the time, to arrest person for writing a non-honored check for some travel tickets and were not required to accept his stated defenses, despite the fact that they ultimately were enough to get the case dismissed in court.

            Two Illinois police officers arrested a man for issuing a bad check with intent to defraud, in violation of a state "deceptive practices" law. The charges were dismissed at the first preliminary hearing in court, and the arrestee sued the officers under 42 U.S.C. Sec. 1983 for false arrest.

            A federal appeals court upheld summary judgment for the defendant officers on the basis of qualified immunity. At the time of the arrest, the officers had information that the arrestee had given a check to a travel agency for some travel tickets, and that the check had been returned unpaid. They also determined that his checking account did not contain sufficient funds to cover the check and that he had received the travel tickets, which were charged to a travel agency owned by another person.

            It turned out that the transaction involved a dispute between the check writer, himself the owner of a travel agency, and another travel agency which he had been in the process of merging with. The merger fell through, and there were a variety of defenses that the check writer had to the criminal charges, including the fact that he was the sole incorporator of the entity to which the check was made out. The officers, however, the court ruled, were not required to accept his stated defenses, and could make the arrest based on the facts as they appeared at the time. Marks v. Carmody, #00-2037, 234 F.3d 1006 (7th Cir. 2000).

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

Officer was not liable for detention of landlord, which allegedly caused his collapse because he needed access to his oxygen and medical equipment to prevent reoccurrence of recent stroke, when officer had no information concerning landlord's medical condition when she detained him while attempting to resolve landlord-tenant dispute over tenant property.

            Police officers went to an apartment building to investigate a tenant's complaint that the landlord had improperly taken her property and locked it in a storage room. The landlord told the officers that the tenant had left the property in the hallway in violation of the fire code and that he had placed it in the storage room to avoid being cited by inspectors. He showed them the storage room and the property and then locked the door.

            One of the officers told the landlord that she would arrest him for theft if he did not return the property, and stopped him from returning upstairs to his apartment unless he gave her the storage room key. The landlord, who was recovering from a major stroke suffered ten days before, passed out at the bottom of the stairs.

            He subsequently sued the officer for seizing him and preventing him from accessing his medical equipment and oxygen in his apartment. The lawsuit asserted that the seizure was not reasonable under the Fourth Amendment because "there was no lawful purpose to deny him access to his oxygen other than the fact that the officer wanted to get keys to the storage area." The plaintiff claimed that he told the officer twice that he "needed his oxygen," but it was undisputed that he did not tell her about his medical problems or that he risked loss of consciousness or stroke if he could not reach his oxygen.

            A federal appeals court upheld summary judgment for the defendant officer, noting that there was no evidence that the officer had any reason to know that the plaintiff had suffered a stroke or that he needed oxygen to prevent any type of recurrence. Her attempt to settle the landlord-tenant dispute in response to a call for help did not violate any clearly established rights, and a reasonable officer with the same information would not have known that detaining the landlord in an attempt to obtain the key would "swiftly impact his physical well-being." She was therefore entitled to qualified immunity. Loudes v. City of Minneapolis, Minn., 233 F.3d 1109 (8th Cir. 2000).

Text: <www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].

Officer had probable cause to arrest homeowner for theft of services based on statements by a number of businesses that he had refused to pay for work done on his residence; officer did not act improperly or deceive prosecutor who obtained warrant by failing to detail his personal involvement in a prior similar dispute involving the homeowner.

            A police officer contacted a homeowner concerning a complaint from a heating company that they had repaired the homeowner's furnace but that he had refused to pay the bill. The homeowner responded to the officer's threat to arrest him for theft of services by paying the bill, although he stated that it was disputed because the full extent of the work done had been unauthorized. When the officer subsequently learned that four other businesses also complained that the homeowner had refused to pay for some or all of the work done on his home, he conducted an investigation which led him to believe that the homeowner had engaged in a pattern of deception by which he hired businesses to perform work on the residence and then fabricated reasons to evade payment.

            The officer presented the results of his investigation to a prosecutor who signed an information charging the homeowner with theft of services on the basis of failure to pay two of the bills. The information was presented to a judge who issued an arrest warrant. The charges were later dismissed, and the homeowner sued the officer, arguing that the arrest was made without probable cause.

            Obtaining an arrest warrant does not immunize an officer from a lawsuit for procuring the warrant "if a reasonably well-trained officer" would have known that the facts do not support probable cause "and that he should not have applied for the warrant," a federal appeals court ruled that this was not the case in this instance. It rejected the argument that the officer acted improperly and misled the prosecutor by not disclosing his prior involvement in resolving a disputed debt claimed by the first company, or by failing to conduct a "reasonable investigation."

            There was no evidence that the officer lied or withheld information from the prosecutor about the nature of the disputes. He informed the prosecutor about all five businesses, even though he may not have detailed the resolution of the first complaint. The mere fact that the homeowner denied the allegations of the businesses did not, standing alone, remove the existence of probable cause. The complaints by the five businesses, the court ruled, gave the officer probable cause to make an arrest even without a warrant, since complaints from crime victims about alleged crimes "generally establish probable cause" unless there is some reason for the officer to be suspicious about their reliability. Finally, the court found that the officer had no duty to inspect the homeowner's residence to see if the work had actually been performed to the homeowner's specifications. The appeals court therefore upheld summary judgment for the defendant officer. Neiman v. Keane, #99-3286, 232 F.3d 577 (7th Cir. 2000).

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

Passenger in car shot by officer who fired on it as he jumped onto the hood of his car to avoid being hit was entitled to $10,000 in damages as well as $10,000 in attorneys' fees and court costs; factual dispute over the behavior of the vehicle as it approached the officer, and qualified immunity defense, was for the jury to decide.

            A police officer was talking to two women as they stood in the middle of a street. To avoid being hit by a car approaching in their direction, the two women jumped onto the curb, and the officer jumped onto the hood of his police car, simultaneously firing his gun at the car. The bullet went through the driver's side window, and hit the passenger. The injured passenger sued the officer for violation of her Fourth Amendment rights.

            The jury reached a verdict for the plaintiff and awarded her $10,000 in damages. The trial court also awarded an additional $10,000 for attorneys' fees and costs. The result was upheld by a federal appeals court.

            The appeals court held that the issue of qualified immunity was for the jury to decide since it hinged on a disputed factual issue concerning the vehicle's behavior as it came towards the officer. Fisher v. City of Memphis, Nos. 98-6550, 98-5902, 234 F.3d 312 (6th Cir. 2000).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].

Officer's use of racial slurs to four black men during investigatory stop of their vehicle was insufficient to show that the town had a policy or custom of racial hostility towards blacks; there was also no showing of inadequate training or supervision where officer was suspended for his actions and required to undergo cultural sensitivity training.

            Two New York police officers stopped a vehicle occupied by four black males, believing that it might be the car driven by suspects in a "carjacking" attempt. The occupants of the vehicle later alleged that the officers, in the course of ordering them out of the vehicle and conducting their investigation, called them "niggers" and placed guns to their heads, threatening to pull the trigger.

            Following an investigation which lasted between one and two hours, the vehicle occupants were released and told that it was all a "misunderstanding." They filed a federal civil rights lawsuit against the town and the officers. It was admitted by the defendants that at least one officer shouted racial epithets at the plaintiffs.

            Claims against the town included failure to implement policies sufficient to prevent "racially motivated police activity," failure to "take reasonable steps to see that town police officers were sensitive to race issues," and failure to "properly investigate and reprimand" the officers."

            Granting summary judgment for the defendant town, the trial court found the evidence insufficient to support any of these claims. The allegation that the officers involved in the incident used racial epithets, combined with evidence presented by the plaintiffs that a different officer and police captain had made racial slurs in separate incidents over ten years earlier did not show that the town had a "policy or custom" of racial hostility towards blacks. There also was no showing of inadequate training or supervision. The court noted that one of the officers,  who admittedly had used racial slurs, was suspended without pay for two weeks and required to undergo "cultural sensitivity training." Polite v. Town of Clarkstown, 120 F. Supp. 2d 381 (S.D.N.Y. 2000). [Cross-reference: Racial Discrimination].

Missouri police officer could pursue claim for defamation against person who allegedly filed a "false and malicious" misconduct complaint with the department; Missouri appeals court rules that statements made while filing such complaints were protected only by qualified privilege, rather than absolute privilege.

            A Missouri police officer filed a defamation lawsuit against an individual who made a misconduct report concerning him to the police department through the department's official complaint procedure. He claimed that the accusations were false and malicious, harming his reputation.

            While the trial court dismissed the lawsuit, finding that the statements made were protected by an absolute privilege, an intermediate Missouri appeals court reversed, ruling that the statements were protected only by a qualified privilege, which could be overcome by a showing of "actual malice." Absolute privilege, the court stated, "is given only in limited situations where there is a policy of permitting complete freedom of expression without inquiry into motives, including judicial, quasi-judicial, legislative or executive proceedings, and situations where the communication is provided for  and required by law."

            "We do not believe that the public policy encouraging citizens to report police officer misconduct, pursuant to police department regulations which lack the procedural safeguards found in judicial or quasi-judicial proceedings, merits the application of an absolute privilege," which would "cloak unsupported and malicious statements of any kind with immunity, without providing recourse to the person defamed. Police officers should not be subject to malicious complaints from which they have no protection." Barge v. Ransom, No. 23329, 30 S.W.2d 889 (Mo. App. 2000).

Text: <www.findlaw.com/11stategov/mo/moca.html>.

Fireman's rule did not bar Michigan police officer's lawsuit against bar which served liquor to underage man who subsequently assaulted him; jury awards $121,689.89 to the plaintiff officer and $25,000 to his wife.

            A Michigan police officer was assaulted and injured by an intoxicated man who was present at a house to which the officer had been dispatched to investigate a stabbing. The officer filed a lawsuit, under a state dramshop act, against the bar which had allegedly served the man, despite the fact that he was underage (nineteen) and allegedly already visibly intoxicated. The bar argued that the officer was barred from recovering damages under the fireman's rule. Under that rule, an officer cannot recover damages for negligent injury when it arises from the "normal, inherent, and foreseeable risks of his profession."  In this case, however, the intoxicated man's conduct was not the reason for the officer's dispatch to the scene. The defendant bar's alleged violation of the dramshop act was "entirely independent of the situation that led to" the officer's presence at the site of the injury, so the fireman's rule did not bar the lawsuit. An intermediate Michigan appeals court accordingly upheld an award of $121,689.89 to the plaintiff officer and $25,000 to his wife on her loss of consortium claim. McCaw v. T & L Operations, Inc., 619 N.W.2d 420 (Mich. App. 2000).

Text: <www.icle.org>. [Cross-reference: Police Plaintiff: Firefighters' Rule].

UPDATE: City wins retrial on damages in case where Illinois jury awarded $50 million to parents of youth who died of an asthma attack after 911 emergency call was made.

            An Illinois trial judge has vacated 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. A prior report on the jury's award, 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), appeared in Liability Reporter No. 337, p. 11 (Jan. 2001).

            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 defendants argued, post-trial, that the damages awarded were excessive and not supported by the evidence, and the trial judge ordered a new trial limited to the issue of damages. Gant v. City of Chicago, No. 97-L-3579, Cir. Ct., Cook Co., Ill., Chicago Daily Law Bulletin, p. 3 (March 8, 2001).

Elderly father arrested for resisting unexplained warrantless entry into his home by police officers was entitled to $12,500 award for false arrest; no exigent circumstances supported the warrantless entry into the residence to arrest his intoxicated son.

            Louisiana police officers seized a loaded rifle from an intoxicated man at a bar. The man returned to his parents home and began calling police headquarters demanding that his rifle be returned to him, and allegedly threatened to do violence to a specific officer with whom he had a history of personal animosity. After numerous calls, he challenged this officer to fight him outside his parents' home. In response, six police officers and four patrol cars went to the residence, encountering the man outside, although he fled inside the home when he saw all the officers arriving.             The man's elderly father, suffering from heart problems and the after-effects of a stroke, was unaware of what was happening, and had gotten up from bed and gone to the kitchen to get some medication. When he saw the entry doors begin to open, he blocked the door and demanded an explanation. Officers forced their way into the home, knocking a glass from his hand. They arrested the son, but they also arrested the father for resisting arrest and battery on a police officer. Charges against the father were never prosecuted, and he sued the city, seeking damages for unlawful arrest.

            The trial court awarded the plaintiff $12,500 in damages. An intermediate Louisiana appeals court upheld this award, finding that the father "resisted an unexplained invasion of his home which was no doubt upsetting and frightening." The court further found that the warrantless entry into the home to arrest the "drunken telephone harasser" was not supported by exigent circumstances. Carter v. City of Natchitoches, No. 00-349, 772 So. 2d 186 (La. App. 2000).

Text: <www.lasc.org/news/newsindex.html>. [Cross-reference: False Arrest/Imprisonment: No Warrant].

Barge v. Ransom, No. 23329, 30 S.W.2d 889 (Mo. App. 2000).[45]
Carter v. City of Natchitoches, No. 00-349, 772 So. 2d 186 (La. App. 2000).[46-47]
D'errico v. DeFazio, 763 A.2d 424 (Pa. Super. 2000).[37]
Fisher v. City of Memphis, Nos. 98-6550, 98-5902, 234 F.3d 312 (6th Cir. 2000).[44]
Gant v. City of Chicago, No. 97-L-3579, Chicago Daily Law Bulletin, p. 3 (March 8, 2001).[46]
Headwaters Forest Defense v. County of Humboldt, #98-17250, 211 F.3d 1121 (9th Cir. 2000).[35-36]
Hector v. Watt, No. 00-3084, 235 F.3d 154 (3rd Cir. 2000).[36-37]
Katz v. United States, 194 F.3d 962 (9th Cir. 1999),
                cert. granted sub. nom., Saucier v. Katz, #99-1977, 121 S. Ct. 480 (2000).[39]
Liu v. Phillips, No. 99-2336, 234 F.3d 55 (1st Cir. 2000).[37-38]
Loudes v. City of Minneapolis, Minn., 233 F.3d 1109 (8th Cir. 2000).[42-43]
Marks v. Carmody, #00-2037, 234 F.3d 1006 (7th Cir. 2000).[41-42]
McCaw v. T & L Operations, Inc., 619 N.W.2d 420 (Mich. App. 2000).[45-46]
McNair v. Coffey, #00-1139, 234 F.3d 352 (7th Cir. 2000).[38-39]
Neiman v. Keane, 232 F.3d 577 (7th Cir. 2000).[43]
Polite v. Town of Clarkstown, 120 F. Supp. 2d 381 (S.D.N.Y. 2000).[44-45]
Shipp v. McMahon, #98-31317, 234 F.3d 907 (5th Cir. 2000).[40-41]
Thomas v. Beary, 770 So. 2d 699 (Fla. App. 2000).[41]
Wilkerson v. Thrift, 124 F. Supp. 2d 322 (W.D.N.C. 2000).[36]
Willowbrook, Village of, v. Olech, #98-1288, 528 U.S. 562 (2000).[40-41]