September, 2001 web edition

Arrestee stated claim for supervisory liability against police commissioner by alleging that he inadequately trained officers in making traffic stops and detaining suspects, and also knew that officers were "fabricating" cases against detainees in order to "cover-up" their own illegal conduct, but did nothing to stop such falsification.

            A federal trial court in Puerto Rico has held that an arrestee adequately stated a claim for supervisory liability against a police commissioner by alleging that the commissioner failed to adequately train officers to make traffic stops and detain suspects, knew that officers were "fabricating" cases, and did nothing to stop such falsification.

            The plaintiff claimed that he was a passenger in a vehicle stopped by officers. While the driver was asked to step outside of the vehicle, one of the officers allegedly beat him in the face as he remained seated in the passenger seat, inflicting a broken nose on him, and then filing felony charges against him for obstruction of justice and breach of the peace. The complaint alleges that the police commissioner knew that officers were "fabricating" charges in cases like this "to cover their own illegal actions," but that he allowed this conduct to go unpunished. Cruz v. Municipality of San Juan, 140 F. Supp. 2d 140 (D. Puerto Rico 2001).

New York City reaches $8.7 million settlement in Louima case; lawsuit stated that arrestee was tortured with a broken broomstick being placed in his rectum.

            A $8.7 million settlement has been reached in a lawsuit charging that an African- American arrestee was sodomized in his rectum with a broken broomstick in a police station, causing serious damage to his rectum and bladder, and that the incident was initially covered up. The settlement includes a payment of $7.125 million from New York City and $1.625 million by the Patrolmen's Benevolent Association. It is reportedly the first time that a police union has paid part of the settlement in an excessive force case. The lawsuit accused the union of "conspiring" to cover-up the incident.

            While the settlement does not formally change anything about New York police department policies and practices, the plaintiff in the case told reporters that he agreed to the settlement only after he was convinced that the city and union were altering the manner in which New York officers are trained, monitored and disciplined. The city and union stated that changes made were not directly in response to the lawsuit. Louima v. New York City, U.S. Dist. Ct. (S.D.N.Y. 2001), reported in The New York Times, National Edition, p. 1 (July 13, 2001).

Washington state Supreme Court upholds award of attorneys' fees to plaintiff who was awarded only $1 in damages by a jury that found that an officer subjected him to excessive force following a high-speed pursuit.

            A passenger in a vehicle pursued at high-speed by city police officers in Washington state claimed that an officer used excessive force against him after the vehicle came to a halt. The officer stated that the passenger, who exited the vehicle, refused to obey commands to get down on the ground and resisted his attempts to subdue him. A jury found for the plaintiff on the excessive force claim, while awarding only nominal damages, and rejecting false arrest and other claims.

            Despite this award of only $1 in damages, the trial court awarded attorneys' fees to the plaintiff, stating that such an award would help "citizens to vindicate their civil rights."

            The Supreme Court of the state of Washington upheld this result. The court stated that the "legal issue involved here is significant. Unlawful physical beatings by the government's agents are abhorrent and citizens are entitled to be free of such conduct.

            While this case "effected no change in government policies or practices," the importance of the issue at stake, as well as the fact that the plaintiff had sought less than $35,000 in arbitration, and only $6,112 in damages at trial showed that the trial court did not abuse its discretion in making the attorneys' fee award. The Supreme Court also granted the plaintiff additional attorneys' fees "for successfully defending his award of attorneys' fees" on appeal. Ermine v. City of Spokane, No. 69680-2, 23 P.3d 492 (Wash. 2001).

Text: <www.courts.wa.gov/opinions/>.

Prosecutors were entitled to absolute immunity for retaining arrestee's leg prosthesis as possible evidence in criminal proceeding, as well as following conviction, while appeal was pending.

            New York state troopers arrived at a residence to investigation reports that a man had fired two shots into the air. They arrived to find a man allegedly making threats to kill his girlfriend, and ordered him to drop his weapon. When he instead pointed his rifle at them, a gun battle ensued. During the incident, the suspect suffered three gunshot wounds, and one entered the prosthesis that he wore on his left leg, which had previously been amputated below the knee.

            The prosthesis was secured by the state for possible use as evidence in any criminal prosecution, and the arrestee was issued crutches in jail. He was eventually convicted of charges of attempted aggravated assault on a police officer and reckless endangerment. At sentencing, he asked that the judge order the return of his prosthesis, but the state argued that it had to be retained pending any appeal, and the judge agreed. Later, while the appeal was pending, the prosthesis was returned by stipulation, at a "show cause" hearing ordered by another judge. The arrestee then filed a federal civil rights lawsuit for damages against the prosecutors and other law enforcement defendants, arguing that withholding the device had constituted disability discrimination and was cruel and inhuman treatment.

            A federal appeals court has upheld a ruling that the prosecutors were entitled to absolute immunity for their conduct in retaining the prosthesis as possible evidence, both during the prosecution and while the appeal of the conviction was pending. Parkinson v. Cozzolino, No. 00-0126, 238 F.3d 145 (2nd Cir. 2001).

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

Georgia appeals court rules that false arrest lawsuit was filed within the two year statute of limitations when it was delivered to the court office on the second anniversary of the arrest, but stamped "filed" on the next day.

            A trial court in Georgia dismissed an arrestee's false arrest lawsuit as barred by a two- year statute of limitations. The arrest occurred on Oct. 27, 1996, and his complaint was stamped "Filed" in the court clerk's office on Oct. 28, 1998, although it was received in the office on Oct. 27, 1998. An intermediate Georgia appeals court reversed, reinstating the lawsuit, and ruling: 1) that the two year limitations period included the day of the second anniversary date of the underlying incident, and 2) that "it is the date of delivery to the clerk's office that constitutes the date of filing, even if the clerk erroneously stamps a later date as the filing date." Reese v. City of Atlanta, No. A00A2562, 545 S.E.2d 96 (Ga. App. 2001).

Married couple who triggered alarm when they entered lit, apparently open convenience store were properly awarded damages for false arrest and assault based on deputies treatment of them after arriving on the scene and finding no evidence of crime; deputy used excessive force against wife by spraying her twice in the face with "OC" spray at close range; appeals court reduces damages awarded as excessive.

            A married couple went to a convenience store located in a gas station. The store appeared lit and open, but when the woman pulled on the door, which opened, it triggered an alarm, notifying a 911 operator. The woman also made her own 911 call, informing the operator of what happened, and that she had opened the door and found no employees in the store. The couple agreed to wait at the scene until officers arrived.

            Two sheriff's deputies arriving at the scene talked to the couple and inspected the store, finding nothing apparently missing and nothing appearing out of place. The couple asked to be allowed to go home, as they had left a stove burner on under food, but the deputies refused to let them go. When the husband began to walk away against these orders, a deputy allegedly grabbed him and told him he was being detained until the store owner arrived, but was "not under arrest." When the wife saw her husband pressed up against the front of the store, being handcuffed, she ran towards him, and a deputy twisted her arm behind her back, threw her up against the building, handcuffing her and spraying her twice in the eyes with Oleoresin Capsicum ("OC") spray from close range.

            The wife was taken to jail, but was later released. No charges were brought against either individual, and they sued the two deputies for violation of their civil rights, false arrest, and battery. A trial judge awarded damages of $450,000 to the wife and $50,000 to the husband.

            Upholding liability, a federal appeals court held that the husband was arrested when he was thrown against a wall, had his legs kicked apart, was handcuffed, and subsequently placed in a squad car, despite the officers' characterization of it as an investigative detention. The court also found that the officers did not have probable cause for the arrest, and committed a state law battery against the husband by the manner in which he was treated.

            The appeals court also found that the deputies used excessive force against the wife. The court reasoned that she was unarmed, and it was "difficult to imagine" her being a threat to the officers or public. Further, they sprayed her with "OC" at a distance of 18 inches, even though department policy instructed deputies not to use spray at distances less than three feet.

            The appeals court further found that the officers were not entitled to qualified immunity. Finally, it held that the damages awarded were excessive, reducing the award to the wife to $300,000 and the award to the husband to $1 in nominal damages, based on the lack of evidence that he suffered any physical injury as a result of what the officers did. Park v. Shiflett, No. 00-1809, 250 F.3d 843 (4th Cir. 2001).

Text: <www.law.emory.edu/4circuit>. [Cross-references: Assault and Battery: Chemical; Damages: Compensatory].

Man's admission to officer that he had bitten girlfriend's hand provided probable cause for a warrantless arrest; city was entitled to summary judgment in false arrest lawsuit.

            A man became involved in a fight with his girlfriend in his car, during which she hit him in the head three times and he bit her right hand. She later filed a complaint, and he went to the police station when he heard that officers were looking for him. He described the argument to the sergeant on duty, admitting that he had bitten her hand, whereupon he was arrested. The charge against him was later dismissed, and he sued the city for false arrest.

            An intermediate New York appellate court has ruled that the city was entitled to summary judgment. The officer had probable cause to make the arrest based on the plaintiff's admission that he had bitten his girlfriend's hand, as well as his possession of a signed domestic incident report indicating that the bite had required treatment by emergency medical personnel and further hospital treatment. Probable cause to arrest, the court noted, does not require that there be a legally sufficient case for conviction after trial. Wallace v. City of Albany, 725 N.Y.S.2d 728 (A.D. 2001).

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

Woman mistakenly arrested under warrant actually intended for her sister-in-law, who sometimes used her name as an alias, was properly awarded $100,000 for 3 hours she was kept in custody after a judge ordered her released.

            When an Arkansas police officer stopped a vehicle for a minor traffic violation, a computer check indicated an active arrest warrant for a passenger for failure to report and pay probation fees. The warrant was actually for the woman's sister-in-law, who had on occasion used her name as an alias. The communications operator who the officer talked to misread the information on her computer and failed to notice that the name was listed only as an alias.

            The woman was taken to the county jail, where the prisoner was accepted. The intake deputy there, however, thought he had made a mistake when he saw a copy of the warrant and the attached photograph. He reported this to his superiors and was eventually told that the woman would have to stay in jail until Monday morning, when a judge could decide what to do (it being Saturday). She was strip searched during her confinement, and brought to court on Monday, when a judge determined that she should be released. She was instead placed in a holding cell for 30 minutes, and then transported back to the jail, where her belongings were, where she was kept in custody another 2-1/2 hours and again strip searched, before being released.

            She sued the city, a number of officers, and the police department. A jury awarded her $100,000 in damages. A federal appeals court ruled that her initial arrest and prehearing detention did not violate the Fourth Amendment, and that the arresting officer and supervising sergeant were entitled to qualified immunity with respect to their decision to hold the Plaintiff over the weekend and allow a judge to make the final decision.

            The court ruled, however, that the jury could decide to hold the city liable for the county jail's actions in detaining her after a judge had ordered her released. The question of whether the policies routinely used by the county jail in the processing of city prisoners could be attributed to the city, which had no jail of its own, was for the jury to decide. The court upheld an award of $35,000 in damages for the time the plaintiff spent in the holding cell at the court after being ordered released and $65,000 for the time she then spent back at the county jail before actually being released.  Young v. City of Little Rock, No. 99-3595EA, 249 F.3d 730 (8th Cir. 2001).

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

Officers were justified in shooting and killing an intoxicated man asleep in his bed after he broke into his own house through a rear window; decedent had not responded to their shouts and then pointed a rifle at them from underneath the covers; officers were present to investigate a possible burglary.

            A man and his wife argued at a party, and she took the keys and drove away to a friend's house. Locked out of his house, he broke in by breaking a rear window. Intoxicated, he went straight to bed, taking a rifle with him. A neighbor later telephone police about hearing the broken window and the possibility that a burglary was taking place, especially since there was no car in the driveway.

            A number of officers arrived at the house, and two proceeded to climb through the back window, opening the front door for another officer to enter with a canine. They announced their presence and that they would turn the dog loose if anyone present in the house did not speak. Two officers found the homeowner on the bed, but he would not respond to their shouts or to the dog's barking.

            When the man brought a rifle up from underneath the covers, pointing it in the direction of one of the officers, both officers started shooting, killing him. His spouse and estate sued the county and the officers for excessive use of force and wrongful death. A federal appeals court upheld the determination that the officers were justified in their use of deadly force under these circumstances, since they had reason to believe, from the way in which the rifle was being pointed, that there was a danger of them being shot.

            While it was disputed whether one of the officers may have first struck the man's foot, the appeals court ruled that, even if that was true, it was not an excessive use of force, given the man's lack of response to the officer's shouts and the dog's barking. "For all the officers knew," he might have been "sick or even dead. Faced with this situation, we simply cannot conclude that striking" him on the foot to provoke a reaction was unreasonable under the circumstances." Cox v. County of Prince William, No. 00-2159, 249 F.3d 395 (4th Cir. 2001).

Text: <www.law.emory.edu/4circuit>.

UPDATE: Oregon reaches $5 million settlement in case where jury awarded $8 million, including $4.5 million in punitive damages, against state trooper who allegedly attacked female motorist after stopping her for speeding and then shot her in the shoulder after she attempted to drive away.

            As previously reported, a jury awarded $8 million in damages, $4.5 million of which consisted of punitive damages against an Oregon state trooper who allegedly attacked a female motorist after he stopped her for speeding, and then shot her in the shoulder after she attempted to drive away. The officer's version of the incident differed. He said that he used increased force because he was unable to subdue the motorist, and that he shot her when she pulled out what he believed to be a gun. Conroy v. Henry, , reported in The National Law Journal, p. A12 (Feb. 19, 2001), Liability Reporter, No. 338, p. 22 (Feb. 2001). The state has now reached a $5 million settlement with the plaintiff in the case, paying it in two installments, $2 million immediately and $3 million more by the start of 2004. Conroy v. Henry, No. 99- 3074-AA, U.S. Dist. Ct. (D. Ore.), The National Law Journal, p. B3 (July 23, 2001).

California jury awards $1.9 million for officer's shooting and killing of woman intoxicated on methaphetamines who had yelled through her screen door at him that she had a gun.

            The brother and father of a woman intoxicated on methamphetamines called police in Union City, California, reporting that she was wielding steak knives. Officers arrived on the scene, and she allegedly screamed at them that she had a gun, from behind the screen door of her residence.

            A officer shot and killed the woman, firing five shots through the door. She was allegedly unarmed at the time. A lawsuit was filed in state court against the city, claiming an excessive use of force, as well as inadequate training. The Plaintiffs claimed that the officer had not acted in a manner to calm the woman, but instead had aggravated the situation. The city argued that the officer had little choice but to shoot the woman, who he said had turned away to pursue her daughter and father at the time, leading the officer to believe that their lives were in danger. A jury awarded the Plaintiffs $1.9 million in damages. Munoz v. City of Union City, No. H204672-7, (Alameda Co., Calif. Superior Court, May 17, 2001), The National Law Journal, p. B4 (July 30, 2001).

Pedestrian stopped and searched by village police officers stated a claim against the municipality based on officers' and police chief's purported statements to her that there was a village policy of searching anyone who could not produce identification.

            A pedestrian stopped by a village police officers and searched after she failed to produce any identification in response to the officers' request filed a federal civil rights lawsuit against the village and the officers.

            The trial court declined to dismiss the claim against the village, finding that the plaintiff presented enough to state a claim against the municipality based on her assertion that she was told, both by the officers involved and by the village police chief that it was a department policy to search anyone who could not produce identification. The Plaintiff argued, on this basis, that the policy involved conducting illegal searches and seizures in the absence of specific, objective facts indicating involvement in criminal activity.

            The court found that the issue of whether or not the chief was a final policymaker for the village did not have to be resolved at this stage, since, even if he was not, his statement, "if true, is evidence that there was an express policy, or at least a custom or practice of acquiescing in the practice of searching anyone who cannot provide identification." Steinbrecher v. Oswego Police Officer Dickey, 138 F. Supp. 2d 1103 (N.D. Ill. 2001).

New York high court rules that juvenile adjudicated delinquent for endangering the safety of officers effectively waived any privilege against the subsequent use of that adjudication in other proceedings by suing the officers for excessive use of force.

            A juvenile arrestee in New York filed a federal civil rights lawsuit claiming that police officers had used excessive force during the incident that led to his being adjudicated delinquent on the basis that he had recklessly endangered the safety of the officers. He and one of his friends had gotten into a stolen car, with him driving, and then, when police blocked the exits at a parking lot, he had driven his vehicle towards an officer who was on foot, and officers then shot at him, wounding him in the head. The juvenile claimed that the officers fired at him without provocation, as he was bringing the car to a stop.

            The trial court granted summary judgment for the defendants in the juvenile's civil rights lawsuit, on the basis that the question of whether the juvenile had endangered the safety of the officers, thereby justifying their use of deadly force against him had been already effectively decided in the juvenile proceeding. The juvenile appealed, arguing that his adjudication as a juvenile delinquent could not be used against him in another court proceeding, because of New York state statutes providing such a privilege.

            A federal appeals court certified the issue of state law to the highest court in New York. The New York court, while holding that ordinarily the juvenile delinquency adjudication could not be used in another court proceeding, ruled that the juvenile had himself effectively waived that privilege by bringing the federal civil rights lawsuit, which affirmatively placed his conduct during the incident into issue. Green v. Montgomery, 723 N.Y.S.2d, 746 N.E.2d 1036 (N.Y. 2001).

Text: <http://www.law.cornell.edu/ny/ctap/overview.html>.

New Jersey city would not be held vicariously liable for officer's auto accident, hitting pedestrian while driving his own vehicle home for lunch; mere possibility that he could be required to take action if he witnessed a crime did not render him "on duty."

            A New Jersey police officer driving his own car during a paid lunch break hit a pedestrian. The injured woman sued the officer and city for negligence. The trial court found the officer to be 51% at fault for the accident and the pedestrian 49% at fault and also ruled that the police officer was acting within the scope of his employment at the time of the accident, so that the city would be vicariously liable.

            Overturning this ruling, an intermediate appeals court stated that the mere fact that an officer is "subject to duty" if he witnessed a crime does not mean that he or she is always on duty while performing an act of a purely personal nature, like driving home for lunch, as this officer was doing. Accordingly, the city will not be held liable for any judgment against the officer. Rogers v. Jordan, 773 A.2d 116 (N.J. Super. A.D. 2001).

Text: <http://lawlibrary.rutgers.edu/search.html>. [Cross-reference: Off-Duty/Color of Law].

Deputy working off-duty as store security guard was acting as a law enforcement officer rather than a store employee when he arrested a customer outside the store for allegedly disturbing the peace; store was not liable for deputy's actions, and deputy was entitled to official immunity from customer's false arrest/malicious prosecution claims under Texas law.

            A Texas deputy sheriff working off-duty as a computer store security guard marked a customer's receipt as he left with purchased merchandise. The customer loudly questioned what the officer was doing, and the officer followed him outside and attempted an investigative stop for suspicion of disturbing the peace. The deputy clearly identified himself as a law enforcement officer, and placed the customer under arrest when he refused an order to stop getting into his car to leave.

            The customer sued both the deputy and the computer store for false arrest and malicious prosecution. An intermediate Texas appeals court ruled that the deputy was acting as a law enforcement officer, and not as a store security guard when he made the arrest in question. His duty as a security guard in protecting the store's property was complete once he marked the customer's receipt. Accordingly, the store was not liable for the deputy's actions.

            The deputy, as a law enforcement officer, was entitled to official immunity from suit under Texas law, so long as he acted in good faith in carrying out a discretionary duty within the scope of his authority, which the court found he did in this case. Larkin v. Johnson, No. 14-98-00789-CV, 44 S.W.2d 188 (Tex. App. 2001).

Text: <www.courts.state.tx.us/appcourt.htm>. [Cross-reference: Defenses: Official Immunity; False Arrest: No Warrant].

Washington state trial court enjoins web site from publishing officers' Social Security numbers on-line, but refuses, on First Amendment grounds, to order it to remove officers' names, addresses, and information taken from public records.

            A Washington state city government sued a local internet website which put personal information about police officers, including names, home addresses, material from court files and other public records, and social security numbers, online for all to read. The plaintiff city argued that the publication of this information invaded the officers' privacy, could result in intimidation of officers, and could scare off new hires.

            On May 10, a trial court judge denied a request by the city to shut down the site or remove all of the information about the officers, but did order the removal of the officers' Social Security numbers. King County Judge Robert Alsdorf stated that, although publishing the addresses and other personal information may be unwelcome to officers desiring anonymity "publication may arguably expose wrongdoers and/or facilitate peaceful picketing of homes or work sites." He ruled that there was a compelling interest in keeping Social Security numbers private, however. Publication of the other information, he indicated, may fall under protected political speech. City of Kirkland v. Sheehan, No. 01-2-09513-7 SEA, King County, Washington, Superior Court, May 10, 2001.

            EDITOR'S NOTE: The website in question is at www.justicefiles.org and www.thenittygrittyfiles.com. In a separate case, King County v. Sheehan, 00-2-20170-2 SEA, King County Washington, Superior Court, on May 4, 2001, the county was ordered to pay this same website attorneys' fees of $13,716.55 in a case it brought seeking to enjoin the website from seeing personnel information about the sheriff's office it had requested under the state's freedom of information act. The judge in that case ruled that the sheriff's office had to hand over at least the last names, job titles and salaries of all employees within the county sheriff's office.

            The court in the City of Kirkland case, in ruling that the publication of the officers' names and addresses on the web might be protected by the First Amendment relied on a recent ruling in Planned Parenthood of the Columbia/Williamette, Inc., v. American Coalition of Life Activists, #99-35320,  244 F.3d 1007 (9th Cir. 2001), full text: <www.ce9.uscourts.gov/web/newopinions.nsf/>, in which a federal appeals court overturned, on First Amendment grounds, a judgment against persons operating a website which had listed personal information about abortion doctors and other supporters of abortion, some of whom had been attacked. The Court held that political speech "may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party."

Filing of wrongful death claim 28 days after arrestee died gave county and sheriff's department actual notice that it should not destroy audio tapes of 911 calls and radio transmissions concerning incident; California appeals court orders further hearings to determine whether sanctions against defendants in lawsuit are appropriate.

            Deputy sheriffs in Los Angeles responded to a number of 911 calls about a "man with a gun," and placed the suspect in a patrol car, then removing him from the vehicle because he was kicking and banging at the doors and windows. To keep him from injuring himself or a deputy, and to prevent damage to the vehicle, they place him face-down on the ground and applied a Total Appendage Restraint Procedure (TARP, or sometimes called a "Ripp Hobble" restraint). The suspect stopped breathing, and was taken by ambulance to a hospital, where he was declared dead.

            A wrongful death lawsuit was filed by the decedent's estate against the county, and the plaintiff later served on the county a discovery request for the 911 calls to which the deputies responded, and all radio transmissions concerning the incident. The Plaintiff later was told that the tapes of the radio transmissions were no longer available, but that the audio portion of a videotape made at the scene contained the request for the paramedics and the dispatcher's acknowledgement of the request.

            Other audio tapes were destroyed or reused under a county board policy of retaining such tapes for 120 days, and pursuant to a state statute allowing such destruction after 100 days. The plaintiff moved for sanctions on the ground that the county had acted in bad faith in destroying the tapes after having notice that there was a pending claim concerning the death.

            An intermediate California appeals court ruled that the filing of a wrongful death claim with the county by the arrestee's mother 28 days after the death provided actual notice to both the county and the county sheriff's department of the need to preserve the audio tapes beyond the 100 days required by the statute. The court ordered further proceedings to determine whether sanctions against the county for the destruction was warranted, and if so, what that sanction should be.

            "To the County, we suggest that it act with deliberate speed to develop a system to ensure that, in the future, the filing of a government tort claim" triggers "a notice to the appropriate law enforcement agency to preserve relevant recordings of telephone and radio communications until the dispute described in the claim is resolved." Nelson v. Superior Court, #B147607, 107 Cal. Rptr. 2d 469 (Cal. App. 2001).

Evidence that suspect, a parolee, possessed a gun at the time officers tried to detain him on suspicion of auto theft, was admissible in his lawsuit against officers for shooting and wounding him; it was relevant as tending to support the officers' version of the incident that he used his vehicle as a weapon to endanger them in his desperation to escape, justifying their use of deadly force.

            A man suspected of auto theft who was shot and wounded by officers during his apprehension brought a federal civil rights lawsuit against the officers and the police department, claiming excessive force against him. A jury returned a verdict for the defendants. A federal appeals court upheld this result, finding that evidence that a gun was found in the possession of the plaintiff, who was on parole at the time, was admissible, since it was relevant to a crucial issue in the case, whether the arrestee had tried, in desperation, to use his vehicle as a weapon against the officers to escape arrest. This relevance, the court ruled, outweighed any prejudicial impact it might have had on the jury.

            The gun, the court noted, "tends to support the proposition that" the plaintiff was "intent on escaping at all costs and in so doing placed the officers at risk" with his vehicle as they testified, justifying their use of deadly force. Officers fired 63 shots during the incident. Stevenson v. D.C. Metropolitan Police Dept., 248 F.3d 1187 (D.C. Cir. 2001).

Police officer who failed to take action to rescue mentally ill man who died after setting fire to his own house did not violate his constitutional rights; officer knew man to have a history of mental illness and a propensity for violence; lawsuit alleged that officers interfered with firefighters' attempt to put out the fire.

            A part-time patrol officer for a Arkansas city observed a man he knew to have a history of mental illness and a propensity for violence set fire to his own house, after pouring gasoline on various areas of his property. The officer was also informed, by the man's neighbor, that the man had "quit taking his medication" about a week earlier. The officer suspected the man had guns in the house, having been shown a rifle and a shotgun by him a few months earlier at a yard sale.

            The officer watched as the man broke the back door of his house to obtain entry. The man then turned to the officer and stated, "Sorry, Bill." He jumped through the front window of his home, shattering the glass, posted a page from the Bible on a tree, and then retreated back into his house, where he set fire to the living room and headed towards the back of the home. The officer, fearing that the man inside was armed, told neighbors not to attempt a rescue, and called for assistance.

            A firefighter who approached the house with a fire hose was allegedly stopped by an officer who told him he could not enter the house because there was a man with a gun inside. Two firefighters, who did spray the house with some water at one point, were allegedly threatened with arrest at one point when they inadvertently ripped a "crime scene" tape placed around the house by officers. The man inside the house died from smoke and soot inhalation, and was declared a suicide.

            He had allegedly retreated to his bedroom and was laying on his bed face down, with the other side of his house on fire. At one point, one of the firefighters stated that he saw the man through the open window and said "you know we need to get him out of there," only to be allegedly told by an officer, "No, let the f__ker die."

            His estate filed a federal civil rights lawsuit against police officers, the city and the former county sheriff. The two firefighters also sued the county and its former sheriff. The trial court granted summary judgment in favor of all defendants on all claims, finding no violation of constitutional rights.

            A federal appeals court upheld this result. "Although the events of that day indicated a lack of professionalism on the part of those hired to serve the community, they did not rise to the level of constitutional violations." The decedent "was wholly responsible for the situation that created the danger to his life." As for the firefighters' Fourth Amendment claim, the appeals court upheld a determination that they had not been seized by the police pursuant to an unconstitutional county policy or custom, as required for supervisory or municipal liability.

            The court did feel "compelled to say we are not without sympathy" for  the decedent and his surviving family, and also that it found "appalling the altercation (or "turf war") that occurred between the defendants and the firefighters." Lansdown v. Chadwick, No. 00-3596, 2001 U.S. App. LEXIS 17205 (8th Cir.).

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

State troopers were not liable for death of motorist struck by out of control vehicle as she took field sobriety test at the side of the highway.

            Michigan state troopers stopped a motorist on the highway because her "erratic driving" made them suspect intoxication. One of the troopers asked her to exit the vehicle so he could conduct some sobriety tests, and she complied. While she was engaged in taking one of these tests, a vehicle exited the freeway at an excessive speed, went out of control, and started sliding sideways rapidly towards the motorist and the trooper.

            While the trooper says he screamed and tried to grab the motorist as he ran between his patrol car and the motorist's vehicle, he was unable to get her. The out of control vehicle struck and killed her. Only one or two seconds allegedly elapsed from when the trooper first noticed the out of control car and when he turned to run. The decedent's estate sued the troopers for violation of civil rights, claiming a deliberate indifference to the decedent's due process rights, as well as negligence under state law.

            A federal trial court rejected these claims, finding that the troopers did not violate any clearly established constitutional right, and were therefore entitled to qualified immunity on the federal claim, and that they were entitled to governmental immunity under Michigan state law. Further, the "most immediate and most direct" cause of the decedent's death was the "driver that struck her" and not the conduct of the officers. George, Estate of, Ex Rel. George v. Michigan, 136 F. Supp. 2d 695 (E.D. Mich. 2001).

Conroy v. Henry, No. 99-3074-AA, U.S. Dist. Ct. (D. Ore.),
                The National Law Journal, p. B3 (July 23, 2001).[136]
Cox v. County of Prince William, No. 00-2159, 249 F.3d 395 (4th Cir. 2001).[135-136]
Cruz v. Municipality of San Juan, 140 F. Supp. 2d 140 (D. Puerto Rico 2001).[131]
Ermine v. City of Spokane, No. 69680-2, 23 P.3d 492 (Wash. 2001).[131-132]
George, Estate of, Ex Rel. George v. Michigan, 136 F. Supp. 2d 695 (E.D. Mich. 2001).[142-143]
Green v. Montgomery, 723 N.Y.S.2d, 746 N.E.2d 1036 (N.Y. 2001).[137-138]
King County v. Sheehan, 00-2-20170-2 SEA, King County Washington,
                Superior Court, (May 4, 2001).[139]
Kirkland, City of, v. Sheehan, No. 01-2-09513-7 SEA, King County,
                Washington, Superior Court, May 10, 2001.[139]
Lansdown v. Chadwick, No. 00-3596, 2001 U.S. App. LEXIS 17205 (8th Cir.).[141-142]
Larkin v. Johnson, No. 14-98-00789-CV, 44 S.W.2d 188 (Tex. App. 2001).[138-139]
Louima v. New York City, U.S. Dist. Ct. (S.D.N.Y. 2001),
                reported in The New York Times, National Edition, p. 1 (July 13, 2001).[131]
Munoz v. City of Union City, No. H204672-7, (Alameda Co., Calif. Superior Court, May 17, 2001),
                The National Law Journal, p. B4 (July 30, 2001).[136-137]
Nelson v. Superior Court, #B147607, 107 Cal. Rptr. 2d 469 (Cal. App. 2001).[140-141]
Park v. Shiflett, No. 00-1809, 250 F.3d 843 (4th Cir. 2001).[133-134]
Parkinson v. Cozzolino, No. 00-0126, 238 F.3d 145 (2nd Cir. 2001).[132-133]
Planned Parenthood of the Columbia/Williamette, Inc., v. American Coalition of Life Activists,
                #99-35320,  244 F.3d 1007 (9th Cir. 2001).[139-140]
Reese v. City of Atlanta, No. A00A2562, 545 S.E.2d 96 (Ga. App. 2001).[133]
Rogers v. Jordan, 773 A.2d 116 (N.J. Super. A.D. 2001).[138]
Steinbrecher v. Oswego Police Officer Dickey, 138 F. Supp. 2d 1103 (N.D. Ill. 2001).[137]
Stevenson v. D.C. Metropolitan Police Dept., 248 F.3d 1187 (D.C. Cir. 2001).[141]
Wallace v. City of Albany, 725 N.Y.S.2d 728 (A.D. 2001).[134]
Young v. City of Little Rock, No. 99-3595EA, 249 F.3d 730 (8th Cir. 2001).[134-135]