November, 2001 web edition

U.S. Supreme Court orders further proceedings as to whether officers were entitled to qualified immunity in lawsuit brought by anti-logging protesters claiming that the use of pepper spray to compel their compliance with law enforcement orders was an excessive use of force.

            The U.S. Supreme Court has overturned a federal appeals court decision reinstating a lawsuit over use of pepper spray to compel compliance by anti-logging protesters. The appeals court had disagreed with the trial judge who ruled that no reasonable juror could view its use in these circumstances as excessive force. See Headwaters Forest Defense v. County of Humboldt, #98-17250, 240 F.3d 1185 (9th Cir. 2001), reported in Liability Reporter No. 339, p. 45 (March 2001).

            The Supreme Court asked the appeals court to conduct further proceedings in light of Saucier v. Katz, #99-1977, 121 S. Ct. 2151 (2001), reported in Liability Reporter No. 344, p. 115 (August 2001). In Saucier, the Court ruled that inquiry on qualified immunity is whether an officer would have clearly known that his use of force was improper under the particular circumstances faced, not merely whether the use of force is ultimately judged reasonable. The effect of this ruling may make it harder for plaintiffs to assert claims for excessive force, and the Court's remanding of the pepper spray case requires the lower court to determine whether the defendant officers are in fact entitled to qualified immunity under the modified legal standard established by Saucier. Humboldt County v. Headwaters Forest Defense, #00-1649,  2001 U.S. LEXIS 5482.

Text: <www.findlaw.com/casecode/supreme.html>. [Cross- reference: Supreme Court Actions; Defenses: Qualified (Good-Faith) Immunity].

Seventh-grade student handcuffed by police officer in principal's office after he allegedly attacked principal and stepped on officer's foot could not recover damages for "excessive force" in the absence of physical injury from the handcuffing; officer and principal were entitled to qualified immunity.

            A seventh grade student was called into the school principal's office for a conversation concerning his required detention for being involved in two fights at school. The student called the principal several obscenities, knocked a tape recorder out of his hands, ducked under a desk, and ran out of the office. He also allegedly engaged in "chest-butting" the principal. Police officers called to the school found the student in the cafeteria, where he stepped on one officer's foot in response to her request that he accompany her back to the office. A second officer restrained the student and brought him to the principal's office, where the officer handcuffed the student, stating that he was afraid the student might assault the principal again.

            The handcuffs stayed on for thirty-three minutes, until the student's parents arrived, and he was released. Criminal charges were not pressed, but he was suspended for ten days, a suspension overturned in state court. The student and his parents sued the officer who handcuffed him and the school principal, alleging excessive force.            A federal appeals court has upheld summary judgment on the basis of qualified immunity for the officer and principal. In the absence of any allegation of physical injury, the court held, the handcuffing of an individual incident to a lawful arrest is insufficient, as a matter of law, to state a Fourth Amendment claim for excessive use of force.  Neague v. Cynkar, No. 99-4533, 258 F.3d 504 (6th Cir. 2001).

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

Officer's statement to school secretary and "we have a complaint about one of your teachers" did not constitute "slander per se" allowing teacher to sue for slander based on accusation of criminal conduct without showing specific resulting damages.

            A police officer went to a public school to confront a music teacher who his future stepdaughter had told him had been following her and made repeated phone calls to her home, hanging up without speaking. When he arrived, he told a school secretary that "we have a complaint against one of your teachers," and then was escorted to the teacher's classroom. The officer then told the teacher, in the hallway, to stay away from the woman. The teacher sued the city and officer for slander, among other claims.

            An intermediate appellate court ruled that the slander claim should be dismissed. It found that the officer's statements did not constitute "slander per se" for which liability could be imposed without a showing of specific damages. The Plaintiff had argued that the officer's words constituted an accusation of commission of a crime, but "to be actionable as slander per se," the words "imputing the commission of a crime must be of the level of 'an indictable offense.'" Merely stating that there "is complaint against someone does not satisfy this requirement. And the teacher had not shown that the officer's statements damaged his reputation as a teacher, since his own testimony confirmed that he has not been denied promotions or raises as a result of the incident, and that his certification as a teacher was unaffected.  The court also ruled that the officer's conduct did not constitute a "seizure" of the teacher. Tourge v. City of Albany, 727 N.Y.S.2d 753 (A.D. 2001).

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

Under Colorado state law, a municipality is not liable for the willful and wanton actions of its police officers; statute waives immunity for individual employees for such actions, but says nothing about waiving governmental immunity for public entities.

            A man arrested by three Colorado police officers claimed that they seriously injured him while taking him into custody, and filed a lawsuit in state court against the officers and the city for assault and battery, false arrest, intentional infliction of emotional distress, and negligence. Ruling that the defendant city was entitled to a dismissal of the claims against it, an intermediate Colorado appeals court held that under state law a municipality may not be held liable for the willful and wanton actions of its officers.

            The burden of showing that governmental immunity has been waived under the Governmental Immunity Act, C.R.S.A. Sec. 24-10-101, is on the plaintiff. That statute provides that no public employee shall be liable for injuries arising out of an act or omission occurring during the performance of his duties and within the scope of his employment, "unless such act or omission was willful and wanton," but "nothing in this section indicates that the immunity of the public entity will be waived for the willful and wanton actions of its employees." Ramos v. City of Pueblo, No. 99CA2299, 28 P.2d 979 (Colo. App. 2001).

Text: <www.cobar.org/coappcts/ctappndx.htm>.

Officer was not entitled to qualified immunity for shooting and killing suspect he claimed was biting his fingers and swinging a flashlight at him at the time he shot; appeals court rules that disputes between officer and witnesses as to the details of what happened before suspect ran into field were material when officer was the sole witness to shooting.

            A federal appeals court ruled that an officer who shot and killed a suspect following a traffic stop was not entitled to qualified immunity despite the fact that the officer was the only surviving witness to the shooting itself, based on factual disputes between his statements and the statements of two witnesses to events preceding the use of deadly force.

            The officer, a Texas state trooper, chased and stopped a vehicle which he saw skidding into a ditch without headlights close to midnight. The vehicle contained the driver and two passengers. Once the vehicle stopped, the officer says that the driver initially disobeyed his orders to exit the vehicle, but finally did so, appearing "excited" and "fidgety", talking loudly and flinging his arms, and disobeying the officer's order to "get down on the ground." The officer further says that the driver's eyes were bloodshot and glassy, and he smelled alcohol on his breath.

            When he reached for him to arrest him, the driver allegedly first grabbed his flashlight, released it, and then grabbed his baton. The officer then drew his weapon and the driver released the baton, but ran away across a field toward residences. The two passengers remained. The officer claimed that the suspect, who he chased, grabbed his flashlight and baton again, and tried to hit him on the head with the flashlight. The suspect also allegedly tried to choke the officer and bit his left fingers in a manner that the officer thought might cause their loss. The officer then shot the suspect in the neck, fearing that he otherwise might be knocked out by a blow to the head with the flashlight and then murdered.

            The two passengers did not witness the altercation that led to the shooting, but disputed a variety of portions of the officer's version of what happened prior to the foot chase, including whether the driver's request to the officer to be allowed to urinate was before or after the first scuffle over the baton. They contended that the officer had told the driver "now you're gonna get it," in Spanish as he walked to his patrol car, and that the trooper "went at" the driver several times with the baton as if to hit him, with the driver only grabbing the baton to prevent being hit. They claimed that the officer was not reasonable in telling the driver to lie on the ground before asking whether he had been drinking or for a driver's license.

            In denying summary judgment on the basis of qualified immunity, the appeals court found that some of these discrepancies, while not about the shooting itself, were material. While the issue of whether the use of deadly force was permissible is "confined to whether the Trooper was in danger at the moment of the threat" that resulted in the shooting, the events at the vehicle, "in part, set the stage for what followed in the field." The court also noted that there was "little evidence corroborating" the officer's version, since there was no testimony as to treatment the officer received for a bite wound, or as to the teeth marks that probably would have been imprinted on his hand if the decedent were biting so hard the officer "thought he would lose his fingers." Expert testimony offered by the officer's expert that the use of force was reasonable, the court noted, was based only on the officer's statements to the expert. Under these circumstances, summary judgment was inappropriate.

            "We emphasize the narrow factual situation which this cases addresses," the appeals court noted, "one in which the sole surviving witness to the central events is the defendant himself, an interested witness." Bazan v. Hidalgo County, #97-41463, 246 F.3d 481 (5th Cir. 2001).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-references: Firearms: Intentional Use].

Officers' entry into home with arrest warrant for man believed to be staying there, based on unverified anonymous tip would be unlawful if they did not have a reasonable belief that he lived there, as opposed to being a guest in the home; disputed facts required further proceedings.

            Officers entered a home armed with an arrest warrant for a man believed to be living with the residents, and detained a man found there, who denied that he was the suspect. After checking the man's identification and observing that his scantily clad body did not bear the identifying tattoos of the man named in the warrant, they released him. The detained man and a woman living in the home sued for unlawful entry and false imprisonment.

            A federal appeals court overturned summary judgment on the illegal entry claim. The entry into the house was based on an anonymous tip that the suspect was living at the residence with his girlfriend, and there was never any identification of the tipster or any evidence that the officers made any effort to verify that the address given by the tipster, but not listed in the warrant was in any way connected with the suspect sought. The court ruled that the mere fact that a person mistaken for the suspect answered the door of his girlfriend's home in his boxer shorts did not by itself establish a reasonable belief that he lived there.

            "If the suspect named in the arrest warrant is a guest of the third party, then, absent exigent circumstances, the police must obtain a search warrant for the third party's dwelling to avoid violating the third party's Fourth Amendment rights," but the if the subject of the arrest warrant is a co-resident, then the arrest warrant alone allows both the arrest of the subject of the arrest warrant and the use of evidence found against the third party." Under the circumstances in the immediate case, the girlfriend could pursue her claim for unlawful entry, which the trial court had set aside, as well as her claim for false imprisonment based on being restrained by officers during the incident. Watts v. County of Sacramento, #00-15099, 256 F.3d 886 (9th Cir. 2001).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross-references: Search and Seizure: Home/Business].

Officers were entitled to qualified immunity for shooting and killing a suspect who emerged from his vehicle after a chase brandishing his gun, which he had just fired once through the roof of his truck, regardless of whether he was shot in the side while directly pointing his weapon at the officers, or shot in the back as the plaintiff claimed.

            A federal trial court has ruled that police officers were entitled to qualified immunity for shooting and killing a suspect following a chase, regardless of whether the suspect was shot from the side or the back. The suspect, who they began to chase after he allegedly pointed a shotgun out of his vehicle window and fired two shots towards a car occupied by two young women, had eluded the officers during a chase down several streets and alleys. When he was finally cornered, he fired his shotgun into the roof of his truck and came out of his vehicle carrying the weapon.

            The suspect ignored the officers' repeated warnings that he should put down his gun and instead racked his gun, and allegedly pointed it first at one officer and then at the other. The court found that the remainder of the facts which were undisputed made it unnecessary to decided whether the suspect was pointing his shotgun at an officer at the time of the shooting or whether, as the Plaintiff argued, his back was turned to both officers at the time he was shot. In either case, he had definitely exiting his vehicle while wielding his gun, had "demonstrated a predisposition to use it by first firing and then racking the weapon," and had disregarded the officers' warnings.

            Under these circumstances, "regardless of whether he actually pointed his gun at the officers, or instead remained with his back turned, he was quite capable of leveling this weapon at an officer or bystander and inflicting severe injury or death in an instant." The court found, as a matter of law, that the officers reasonably used deadly force. "In this Court's view, the law does not require that a suspect pose a direct, imminent, and unmistakable threat of serious injury or death before an officer may use deadly force in defense of himself or others," since this would "constrain the officer to wait until it was too late to prevent severe injury or death to himself or innocent bystanders, thereby subverting the very purpose of the legitimate use of deadly force." Leong v. City of Detroit, 151 F. Supp. 2d 858 (E.D. Mich. 2001). [Cross-references: Defenses: Qualified Immunity].

N.Y.C. reaches $500,000 settlement with motorist injured in collision with police vehicle which allegedly entered intersection against a red light without sirens or flashing lights.

            A $500,000 settlement was reached in a lawsuit filed in state court by a woman who asserted that her car was hit by a police vehicle which entered an intersection against a red light and without activated sirens or flashing lights. The officer claimed that he had actually had a green light and was responding to a radio call about a "man with a gun" at the time, but also stated that his flashing lights were inoperable at the time of the incident. He also claimed that his siren was operating on intermittent manual mode as he entered the intersection, but a witness to the accident supported the plaintiff's statement that this was not the case. DePalma v. City of New York, No. 24006/92 (Kings Co., N.Y. Sup. Ct.), reported in The National Law Journal, p. B3 (July 30, 2001).

Jury assesses damages of $256 million for motorist's collision with off-duty police officer which left one child dead, one quadriplegic, and one paralyzed on one side with a damaged brain; $57 million settlement by county and construction company to be paid by insurer; officer, the only non-settling defendant, liable for $17.92 million.

            A female motorist driving through an intersection with her three children in the car was struck by a vehicle driven by an off-duty police officer. The officer, then on his way to work, was alleged to be traveling between 60-70 miles per hour in a 40 mph zone at the time of the collision. The accident caused the death of the motorist's 6 year-old daughter, a spinal cord injury leaving her 3 year-old son quadriplegic, and a brain injury that left her other three year old son paralyzed on one side.

            Her lawsuit named the officer, the city, the county, and a construction company as defendants. The Plaintiff claimed that the county and construction company failed to provide a proper plan for the maintenance of traffic at the intersection. A jury assessed damages at $256 million, with 50% liability on the part of the construction company, 43% on the part of the county, and 7% on the part of the officer. A settlement of $57 million will be paid entirely by the construction company's insurer, under an indemnification agreement with the county. The officer, who did not settle, is liable for $17.92 million, with no employer indemnification. Jenkins v. Ranger Construction Industries Inc., No. 98009025AN, Circuit Court, Palm Beach County, Fla., reported in The National Law Journal, p. B1 (July 30, 2001).

Police chiefs were entitled to official immunity on arrestee's negligent supervision claim; record showed that prior complaints about officer who allegedly used excessive force against plaintiff were investigated and the manner of supervising the officer involved discretionary actions under Texas state law.

            An arrestee who claimed that a police officer used excessive force against her filed a lawsuit in state court attempting to assert claims for negligent supervision against the present and the former police chiefs, based on a prior complaint against the same officer. Upholding summary judgment for the two defendant chiefs, an intermediate Texas appeals court found that they were entitled to official immunity, since the complaint involved discretionary actions for which such immunity exists as long as the governmental employee acts in good faith.

            Any actions by the chiefs regarding the hiring, supervision, and training of the officer, the court said, were discretionary acts. Additionally, far from failing altogether to investigate the prior complaints against the officer, the record showed that an investigation was opened, and that a decision was made on the first complaint to wait on taking any action regarding the internal investigation until the conclusion of a criminal investigation by the district attorney. The officer was suspended and then terminated when he was indicted and convicted.

            Evidence in the case also showed that the officer in question had received the state- mandated training program in the use of force and false arrest, and there was no other evidence showing inadequacy of his supervision or training. Dovalina v. Nuno, #04-00-00738- CV, 48 S.W.3d 279 (Tex. App. 2001).

Text: <www.courts.state.tx.us/appcourt.htm>.[Cross-references: Defenses: Official Immunity].

UPDATE: $2 million settlement by village in case where jury awarded $3.75 million for police chief's failure to recover bodily remains of murder victim.

            An Ohio woman was beaten to death by her boyfriend, who was later convicted of her murder. Approximately five days after her death, a village police department conducted a search for her body in a local junkyard. During the search, two dogs allegedly alerted officers to the presence of "retrievable human remains" at the edge of a pond at the junkyard. Despite this, according to the woman's family, the police chief announced, "we're done for the day" and called off the search, despite a suggestion from a county police lieutenant that the pond be drained. When officers returned the next day, it looked like something had been dragged out of the water, and there were footprints at the bottom of the pond. The junkyard in question was owned by relatives of the murderer, and the body was never recovered.

            As previously reported, a jury awarded $3.75 million against the village in the family's lawsuit alleging that the police chief interfered with the "property interest the family had in preserving the remains of their loved one." Culberson v. Doan, No. C-1-965, U.S. Dist. Ct. (S.D. Ohio), reported in The National Law Journal p. A14 (March 19, 2001), Liability Reporter No. 341, p. 74 (May 2001). While an appeal was initially anticipated in the case, the village has now settled the claim for a payment of $2 million, along with a promise to reform its handling of domestic violence cases, including the posting, at police stations, of a statement by the village's mayor about the case and a pledge to continue to look for the victim's body. The village will also spend $60,000 to do training on domestic violence issues and evaluate and audit its domestic violence services, and make a $10,000 contribution to a memorial to the murder victim. Culberson v. Doan, No. C-1-97-965 (S.D. Ohio), reported in The National Law Journal, p. A4 (July 30, 2001).

Off-duty sheriff's deputy working as a department store security guard did not act under color of state law in a federal civil rights suit for stopping and searching a customer suspected of shoplifting, despite being in uniform and wearing his badge and gun.

            An off-duty sheriff's deputy working as a department store security guard stopped a customer after a sensor, normally attached to clothing, was found on the fitting room floor after the customer exited. He directed her back to the fitting room where he and a female manager checked her purse and found nothing. The female manager later searched the customer's clothing, and again found nothing, so the customer was released, with an apology. The customer, who was African-American, pointed out a white woman whom she had seen exit the fitting room before she entered, but the off-duty deputy did not detain her.

            The detained customer sued for violation of her federal civil rights under 42 U.S.C. Sec. 1983. A federal appeals court ruled that the stop and search of the customer by the off- duty deputy did not constitute action under "color of state law" for purposes of a federal civil rights claim. Despite the fact that the deputy was hearing his official uniform, badge and weapon, he did not arrest or threatened to arrest the customer, did not contact the sheriff's department and "did not perform or seek to perform his official duties as a sheriff's deputy; instead, he acted pursuant to his duties as a private security guard." Chapman v. Higbee Company, No. 99-3970, 256 F.3d 416 (6th Cir. 2001).

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

Newspaper was entitled to access to most discovery documents in settled lawsuit claiming that police officer committed sexual crime against a woman and police department had a policy of inadequate training, supervision and discipline of officers engaged in repeated acts of misconduct; public interest in preventing police misconduct outweighed any benefit of keeping the documents confidential, as long as personal information such as social security numbers, addresses, and medical records were excluded.

            A federal trial court ruled that a newspaper was entitled to intervene and obtain access to documents produced by a defendant city during discovery in a lawsuit brought by a woman who claimed that she was the victim of a sexual crime committed by a person using his powers as a police officer. The lawsuit also claimed that the police department maintained a policy and custom of failing to properly train, hire, supervise, discipline and monitor police officers engaged in repeated acts of misconduct. The lawsuit was settled, and many of the documents submitted during the discovery process were the subject of a protective order under which the city was allowed to designate particular documents as confidential.

            In reviewing the newspaper's motion for access to the documents, the trial court reviewed the documents in question and was "surprised to learn" the amount of material, "well over five banker's boxes," which had been designated as confidential. After a review, it determined that many of the documents, which included sealed depositions of Chicago police personnel, did not contain information which the court considered confidential at all. All personal information, such as social security numbers, addresses, phone numbers, etc. had been deleted from most of the files. Some of the files included hiring and personnel information for the defendant officer and investigative complaint register files for the defendant and other officers, "which primarily concern allegations of official sexual misconduct."

            The court ruled that the release of these documents "is vital to the public interest and that any harm to the City of Chicago by the release of the documents is far outweighed by the importance of disclosure to the citizens of Chicago."  Court related documents are "presumed to be matters within the public domain, especially when they concern matters of general concern to the workings of our democratic society. Police misconduct certainly meets this standard. Every citizen will benefit from an end to the ugly and expensive syndrome caused by police misconduct." The court did exclude from the material released all "criminal history information" in the files, the psychological examination of the plaintiff in the case, and any other medical or psychological records for other individuals, including the defendant officer. Doe v. Chicago Police Officer E. Marsalis, 2001 U.S. Dist. LEXIS 11797 (N.D. Ill.). [Cross- references: First Amendment; Freedom of Information].

California officer burned by flung hot fryer oil while breaking up a fight in restaurant kitchen is awarded $1.2 million in damages against restaurant owners.

            A California police officer who suffered severe burns from hot oil in a restaurant kitchen when he went there to break up a fight has been awarded $1.2 million against the restaurant owners. The officer was summoned to the restaurant based on a report of a stabbing. After he separated two individuals fighting in the kitchen, one of them threw two pots of hot fryer oil at him. The resulting burns were both second and third-degree and required a number of surgical procedures, as well as causing a permanent hearing loss. Yamaguchi v. Chaiyut Harnsmut, No. 305-476, (San Francisco County, Calif., Super. Court), reported in The National Law Journal, p. B4 (July 30, 2001).

Man shot by confidential informant with gun allegedly borrowed from police officer could sue officer on "state-created-danger" theory; officer was not entitled to qualified immunity; city was not liable, however, as no policy or customer of inadequate storage of evidence (including the gun) was shown, and no policy of inadequate training.

            The victim of a shooting allegedly carried out by a police department's confidential informant with a gun he supposedly borrowed from a police officer sued the city and the officer for violation of his federal civil rights.

            A federal appeals court has held that the plaintiff could pursue his claim against the officer on a "state-created danger" theory, based on a factual issue as to whether the officer, who allegedly lent the gun to the informant after the informant reported being threatened used his authority to acquire the weapon from evidence in a separate case. If this were shown to be true, it could be argued to a jury that this created an opportunity for the informant to shoot the plaintiff, who he claimed made the threat, which he would not otherwise have had.

            The appeals court rejected the officer's qualified immunity defense, ruling that even in the absence of specific case law no reasonable officer could have believed at the time that the loan of a gun with knowledge of the strong potential for violence was a lawful act.            The court did rule that the city was entitled to summary judgment, as the alleged failure of an individual officer to properly store evidence on a few occasions, including the gun in this case, was insufficient to show a municipal policy or custom. The court also rejected an inadequate training claim, since there was no evidence that any training on the handling of confidential informants would have prevented the officer from lending the informant the gun. McClendon v. City of Columbia, No. 00-60256, 258 F.3d 432 (5th Cir. 2001).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-references: Defenses: Qualified Immunity; Firearms Related: Negligent Use; Governmental Liability: Policy/Custom].

Victims of $120,000 cash robbery outside of nail salon did not succeed in establishing an "equal protection" claim based on their assertion that officers inadequately investigated the crime against them because they were not members of a "good old boy network" in their Texas city.

            A federal trial court rejected an equal protection claim asserted by robbery victims who allegedly that their robbery was not properly or aggressively investigated because they were not members of a "good old boy network" that allegedly existed in their Texas city. The Plaintiffs claimed that they left $120,000 in cash with a manicurist at a nail salon who they trusted because she had a "little Christian saying on her desk." From time to time, they would retrieve some of the cash from her.

            One of the plaintiffs became suspicious of the manicurist because she was suddenly "taking trips everywhere, she was wearing new clothes, she was leading a different type life- style than she had ever lived before." As a result, she asked the manicurist to return the remainder of the cash. When she went to the salon one day to retrieve from the manicurist a box which purportedly had the cash inside, she was attacked and the box was stolen as she took it outside to her car. She observed the assailant and the license plate number of the vehicle in which he fled the scene.

            An officer summoned to the scene interviewed the victim and made a written report, but determined that a criminologist was not needed because it was not likely that forensic evidence would be present. It was later decided by an investigator that only three people knew that the victim would be taking the cash outside the nail salon on that day--the victim, her husband, and the manicurist. The investigator therefore believed that the attack and robbery were not random or serial crimes. The assailant was not apprehended, and the cash was not recovered.

            In rejecting the plaintiffs' equal protection claim, the court noted that they had not presented evidence that raised a genuine issue of material fact that would tend to show that they were intentionally treated differently from others similarly situation for no rational reason. Under Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the court acknowledged, the U.S. Supreme Court has recognized the possibility of an equal protection claim in the context of a single-member class when an individual is "irrationally and intentionally singled out for dissimilar treatment." While the plaintiffs claimed that other similar crimes were investigated in a different manner by the city's police department, the other crimes cited were not similar. The crimes cited were two bank robberies, which are federal crimes and required that the FBI be notified, and the robbery of a store, not an isolated robbery of an individual, such as occurred.

            Additionally, the city presented a rational basis for the manner in which the case was investigated, based on its particular facts. The plaintiffs did not suggest different treatment on the basis of their race, gender, religion, or any other attribute which has traditionally defined a group for equal protection purposes, and also failed to present any evidence of similar robberies against persons who were members "of some ill-defined 'good old boy' network" of city residence which was investigated in a different manner than theirs. They also failed to show that those investigating the robbery acted from any improper motive. The court did not doubt that the plaintiffs were "upset about the robbery and the loss of their $120,000." Harvey v. City of Conroe, Texas, 148 F. Supp. 2d 783 (S.D. Tex. 2000).

Motorist who fled into the desert following his involvement in a two car collision and subsequently died had no due process right to a thorough search by officers, but his estate could pursue an equal protection claim and inadequate training claim based on alleged policy of not searching for him because of mistaken belief that he was a Native American fleeing to a nearby reservation.

            Following his involvement in a two car collision, a motorist fled into the surrounding desert. Officers who arrived on the scene conducted a search for him for a time, but cut it short when their flashlights lost power. A helicopter called to assist in the search also quickly abandoned its effort, due to concerns stemming from nearby power lines. No search was resumed the next day, although some efforts were made over a month later, when the motorist's father arrived in town expressing concern about his son's whereabouts. The motorist's remains were ultimately discovered at the bottom of a canyon by tourists almost three years later.

            The father, as trustee for his son's estate, filed a federal civil rights lawsuit against the city, its police department, and several officers, alleging a violation of his son's substantive due process and equal protection rights.

            A federal appeals court ruled that the officers did not affirmatively place the injured motorist into a more dangerous position by failing to conduct a thorough search for him when he fled into the desert, and that he had no due process right to "competent rescue services."

            The court held, however, that the father could assert an equal protection claim based on the assertion that officers failed to conduct an adequate search based on a mistaken belief that the motorist was a Native American who was attempting to reach a nearby Indian reservation. In asserting this claim for the officers' alleged racially discriminatory search policy, the plaintiff was seeking to vindicate the motorists' rights, and not the rights of unidentified Native Americans, although the motorist was not in fact a Native American, but Caucasian.

            The claim was based in part on the city attorney's statements to the father's attorney that Native Americans involved in car accidents often leave the scene, abscond to the reservation, and call the police the following day to report their vehicle as stolen. He also alleged said that this behavior was considered so common in the area that it was standard practice for the police not to conduct thorough searches for runaway drivers because they suspect most are Native Americans who will call in the next day. The court also ordered further proceedings on the plaintiff's claim that the city had a policy of inadequate training of officers. Amos, Estate of, v. City of Page, Arizona, No. 99-16214, 257 F.3d 1086 (9th Cir. 2001).

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

Tennessee Supreme Court rules that a city or county could be vicariously liable for an officer's actions alleged to violate a state "hate crimes" statute, without requiring a showing of an official municipal policy or custom.

            The Supreme Court of Tennessee has ruled that a government entity, such as a county or city, may be held liable for a police officer's actions under a state "hate crimes" statute on the basis of respondeat superior (vicarious liability) without a need to show that the officer acted pursuant to an official policy or custom. The court issued its ruling in answering a question of state law certified to it by the U.S. District Court for the Middle District of Tennessee.

            The case involved officers who stopped two African-American men and subsequently handcuffed them, giving as the reason for the stop the fact that one of the men had on the same color shirt as a suspect they had been pursuing. The detainees later sued the city and county, among other defendants, claiming that there was liability under a state "malicious harassment" law, Tenn. Code Ann. Sec. 4-21-701. The statute imposes civil penalties for harassment based on race, among other enumerated categories.

            The Plaintiffs in the case argued that the city and county could be held responsible for the officers' actions merely on the basis that the officers were alleged to have acted within the course and scope of their employment, while the defendant government entities argued that they could only be liable if the officers acted under an official policy or custom.

            The state high court found that the statute waived any governmental immunity, and rejected the defendants' argument that a municipality cannot be held liable under respondeat superior. While this is true in federal civil rights cases, as held by the U.S. Supreme Court in Monell v. Department of Soc. Serv. of N.Y., 436 U.S. 658 (1978), which required a showing of official policy or custom, no language in the state statute could be interpreted as limiting governmental liability to acts performed in furtherance of an official policy. Washington v. Robertson County, #M1999-01332-SC-R23-CV, 29 S.W.3d 466 (Tenn. 2000).

Text: <http://tscaoc.tsc.state.tn.us/opinions/opinopts.htm>. [Cross-reference: Governmental Liability: Policy/Custom].

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