Recent Federal Cases Concerning the 1st, 4th, and 14th Amendments that are of Interest to Law Enforcement |
Mark H. Newbold
Deputy City Attorney
IACP Legal Officers Section 2003
1st Amendment
First Amendment/Expression/Intimidation:
Virginia v. Black, 123 S.Ct. 1536 (2003): State may ban cross burning carried out with the intent to intimidate.)Virginia State law made it a crime to burn a cross with the intent to intimidate. Defendants asserted that the state statute deprived them or their right of free expression as protected under the 1st Amendment. While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. Intimidation is a true threat which is not a form of protected speech. The protections of the First Amendment are not absolute and it was never designed to protect those forms of speech designed to most likely inspire fear of bodily harm.
Workplace
Speech/Retaliation:
Torres-Rosaso v. Rotger-Sabat, 335 F.3d 1 (1st Cir. 2003) Agents statement that investigation of politician was paralyzed involved matter of public concern even if not made to audience outside the work place.
Melzer v. Bd of Education of New York, 336 F.3d 185 (2nd Cir 2003) in weighing disruption of public speech, governmental employer may look to community reaction. Generally, community reaction may not dictate whether employee rights are protected (hecklers veto); however public has an intricate role in guiding school policy and therefore disruption of parents may be characterized as internal disruption to the operation of the school.
Pappas v. Giuliani, 290 F.3d 143 (2nd Cir. 2002) Officers anonymous racial comments engender such distrust in Department so as to disrupt the efficacy of the Department. Employee does not have to be high ranking member.
Banks v. Wolfe County Bd. of Education, 330 F.3d 888 (6th Cir.2003) the fact that topic concerns public expenditures is not by itself sufficient to convert expressive activity into commentary on a matter of public concern.
Grooming standards:
U.S. v. James 328 F.3d 953 Headgear: First Amendment does not oblige government accommodate religious headgear. But see dicta on tolerance.
Booth v. State of Maryland, 327 F.3d 377 (4th Cir. 2003). Uniformed correction officer sued after he was subjected to disciplinary action for failing to cut his dreadlocks. Court found that rule was on its face neutral in that there was not evidence that it was enacted for the purpose of denying religious practice. A law that is neutral and of general applicability need not be justified by a compelling governmental interest event if the law has the incidental effect of burdening a particular religious practice. A law does not offend the free exercise clause even if the law has an incidental defect on religious practice. The court also looked at whether the rule had a disparate impact and allowed this claim to move forward. Court refused to allow claim under 1982 (prohibiting race discrimination within entities that contract with federal government).
First Amendment/Dress Codes:
Zalewaska v. County of Sullivan, New York, 316 F.3d 314 (2nd Cir. 2003). County employee sued under 1983 alleging that dress code that required her to wear slacks deprived her of her First Amendment right of free expression, due process and equal protection. The 2nd Circuit held the act of wearing a skirt was not expressive conduct for purposes of the First Amendment, and her interest in personal appearance was not fundamental and as such Countys assertion that skirts could pose a safety interest was rationally related to the dress code. First Amendment analysis: To determine whether an action is expressive and entitled to constitutional protection, the court inquires whether conduct may be so imbued with the elements of communication to fall within the scope of the First and Fourteenth Amendments. To be sufficiently imbued with expressive elements, an activity need not necessarily embodied a narrow and succinctly articulable message, but the reviewing court must find, at the very least, an intent to convey a particularized message along with a great likelihood that the message will be understood by those viewing it (comprehensibility).Test: Does it convey a particular message? Will the message be readily understood by those viewing the message? A broad statement about cultural values is not a specific and particularized message
Employee Expression:
Dixon v. Coburg Dairy Inc, 330 F. 3d 250 (4th Cir. 2003) Free Speech/Confederate Flag (post Virginia v. Black) First amendment does not extend to bringing the Confederate flag inside his employers workplace.
First Amendment/Retaliation/Officer:
Dirrane v. Brookline Police Department, 315 F.3d 65 (1st Cir. 2002). Officer brought several minor complaints about working conditions to his supervisor such as other officer playing cards on duty. He then alleged that officers were falsifying fingerprint reports and were improperly destroying evidence. According to the officer he believed that his Captain was looking into the problems. According to his Captain, the officer was a continual cause of friction in the Department and needed to talk to the Departments psychologist, and ultimately he needed to work someplace else in the Department. The officers work hours were changed to a more normal work hours but the officer complained that this conflicted with his wifes work schedule. The officer then asked for a transfer. I.A. then took away his office keys and firearm and he was given ten days leave. During the next several months he received some psychological counseling and his firearm was eventually returned to him. The officer then sued under the Mass. Whistleblower statute.
o Other First Amendment Cases
Fighting Words/Not protected Speech
Burns v. Board of County Comrs Jackson County, 330 F.3d 1275 (10th Cir2003) Fighting words are not protected by the First Amendment. Fighting words are epithets directed at the person of the hearer inherently likely to cause a violent reaction and playing no role in the expression of ideas
Public Forum:
American Civil Liberty Union v. City of Las Vegas, 333 F.3d. 1092 (9th Cir 2003). Factors considered in determining public forum are: 1) Actual use and purpose of the property, 2) the areas physical characteristics, 3) historic use of the property. Once property becomes public forum it is presumptively impermissible for government to take away that status. (Good review)
First Amendment/Display of Signs/Public Forum:
Brown v. California Department of Transportation, 321 F.3d 1217 (9th Cir. 2003). Anti-war group displayed banners attached to a fence located on an overpass. State employees removed the banners pursuant to a policy prohibiting all signs on fences unless it is a traffic sign or the American flag. Plaintiffs sued stating that they were denied their First Amendment rights and were granted an injunction prohibiting the enforcement of the state policy. In deciding whether prohibition deprives citizen of 1st Amendment the court looks first to the type of forum where the speech is expressed. There are three types of forums: public, designated public and non-public forum. A traditional public forum, such as a public park or sidewalk, is a place that has traditionally been available for public expression. When the government opens a nontraditional forum for public discourse it creates a designated public forum. The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse. Restrictions on free expression in a non-public forum are constitutional only if the distinctions drawn are (1.) reasonable in light of the purpose served by the forum and (2.) viewpoint neutral. Reasonable: (Is the limitation consistent with the purpose for which the property is dedicated?)
Police Report:
Cohen 58 Fed Appx. 139 (2003) Police report delivered to employer did not violate 1st Amendment rights.
Free speech:
Brown v. California Dept of Tansp. 2003 WL 21038139 DOT policy of exempting American flags from permit requirement but requiring permits for all other expressive banners was not reasonable and not viewpoint reasonable
Violent video games:
Interactive Software v. St Louis County 329 F.3d 954 (8th Cir. 2003) Games did not fall within legal definition of obscenity unprotected by First Amendment right to free speech..
Terrorism:
HLF v. Ashcroft, 333 F. 3d 156 D.C. (Cir 2003). No first amendment right to support terrorists
Sex Offender / Ban From Park:
Doe v. Lafayette, 334 F.3d 606 (7th Cir.) Ban of sex offender based solely on his thoughts invalid.
Speech/Displaying indicia of Police
Rodriquez v. State, 2003 WL 21697100 ( Fla. App. 3 Dist.) State law prohibiting the display of indicia of law enforcement authority (t-shirt with police) was prior restraint of speech and subject to strict scrutiny. It must be narrowly tailored to serve a compelling governmental interest. Speech is protected unless it defamatory, obscene, imposing a clear and present danger or fighting words.
Obstruction/Resist/First Amendment
Wilson v. Kittoe, 337 F.3d. 392(4th Cir. 2003) Peaceful verbal criticism by an attorney of an officer who is making an arrest and failure of attorney to go inside his house does not rise to the level of interfering with an officers official duty without running afoul of the First Amendment.
Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003) Profanity laden speech by itself does not rise to the level of obstruction and is protected by the First Amendment. According to the facts, as passed through our summary judgment filter, it was Officer Pauley that and not Payne who incited the crowd by mistreating Kyle and using derogatory language. It would be inherently unfair if an officer could rile up a crowd by mistreating a citizen in front or the crowd and then could arrest that citizen for creating the disturbance.
Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003) Profane utterance son of a bitch unaccompanied of any evidence of violent arousal, while unpleasant and insulting were not fighting words and did not constitute violation of disorderly conduct statute. Good liability discussion (Contempt of cop is constitutionally protected behavior)
4th Amendment / Seizure
Metal detectors.
U.S. v. Ford, 335 F.3d 839 (7th Cir. 2003) Man who was told to step forward and walk through metal detector was not seized since officer did not apply physical force. Nervous behavior accompanied by subsequent reaching into the pocket was insufficient to establish reasonable suspicion that subject was armed. Court implied that if there was a voluntary dump site for metal objects, then reasonable suspicion may be warranted.
Probable Cause / Special Needs:
Graves v. Couer dArlene, 339 F.3d 828, (9th Cir. 2003) (Officer did not have probable cause to arrest protester for obstruction when he refused to give his name and consent to search of backpack that contained cylindrical objects. Special needs doctrine did not support search after protestor refused to consent)
Force/no seizure:
Adams v. City of Auburn Hills 336 F.3d 515 (6th Cir.2003) The use of excessive or deadly force standing alone does not trigger the 4th Amendment. Seizure occurs only when government actors have, by means of physical force or show of authority in some way restrained the liberty of a citizen.
Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003) Force use to make someone leave is not a seizure.
Seizure/Vehicle Collision:
Hernandez v. Jarman, 340 F.3d 617 (8th Cir. 2003) A Fourth Amendment seizure occurs in a collision only where the government actor intends the collision to happen.
Force/circumstances just prior to use:
OBert ex rel. Estate v. Vargo, 331 F.3d 29 (2nd Cir. 2003) Where officers made an attempt to arrest and used deadly force, the objective reasonableness inquiry depends only upon the officers knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force Compare to:
Allen v. Muskogee, 119 F.3d 837, (10th Cir. 1997) The excessive force inquiry includes not only the officers' actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect's threat of force. Of course, the use of force must be judged from the perspective of a reasonable officer "on the scene," who is "often forced to make split-second judgments ... about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. However, as we stated in Sevier: "[t]he reasonableness of Defendants' actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force." We will thus consider an officer's conduct prior to the suspect's threat of force if the conduct is "immediately connected" to the suspect's threat of force.
Deadly force/ suspect vehicle before during after collision:
Hernandez v. Jarman, 340 F.3d 617 (8th Cir. 2003) In determining whether deadly force was objectively reasonable the court considers only whether the seizure itself, not pre seizure conduct, was unreasonable. Suspects intentional collision into police car was not a seizure. Shooting at the vehicle before, during or after the collision was objectively reasonable because suspect posed an imminent threat of serous physical harm to the officers in the pursuit as well as other innocent motorists.
Pepper Spray/Warning:
McCromick V. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir.2003) The use of pepper spray against person who is a suspect in a violent felony was proportionate to the need for force. No constitutional requirement that officer provide an advance warning when suspect did not immediately submit to Officers authority. Good case for review.
Compare to Vinyard v. Wilson, 311 F.3d 1340(11th Cir. 2002) Use of pepper spray against an unarmed suspect of minor crime who was handcuffed was objectively unreasonable
Use of Force/firearms and handcuffs/Detention:
United States v. Bennett 329 F.3d 769 (10th Cir. 2003) Police may use firearms and handcuffs as part of a permissible detention when they reasonably believe it is necessary for their safety and protection. Officers detained suspect with use of firearm and handcuffs during execution a search warrant for drugs where suspect disobeyed their commands and ran into a garage. It was reasonable to handcuff him at gun point and the force used did not turn detention into arrest.
Use of Force/Locked in Car/Heat:
Burchette v. Kiefer, 310 F.3d 1046 (6th Cir. 2002). Detainees arrest in unventilated car for three hours where it was over 90 degrees violates Fourth Amendment prohibition against excessive force.
Seizure/Detention/Minor Offense Doctrine/Use of Force:
Figg v. Schroeder, 212 F.3d 625 (4th Cir. 2002). Several officers backed fellow officer after he advised that shots had been fired on the property of a family with a significant history for violence. Officer had attempted to arrest one of the family members for DWI and after a struggle ensued, the officer shot and killed him. Other family members arrived many of whom had been drinking. Upon arrival, officers handcuffed several family members placing one of them into a patrol car and escorted the other one back to her residence and staying with her thereby preventing her from leaving. The family members were detained for approximately two hours. Several of the family members sued alleging that they were falsely arrested because their detentions evolved into an arrest and that officers did not have probable cause to place them under arrest. The Court held that generally after initial questioning, any further detention or search is reasonable for Fourth Amendment purposes only if it is based on consent or probable cause for arrest. Under the minor offense doctrine if an officer had probable cause that an individual has committed even a very minor criminal offense, then the officer may arrest the individual. In this case, since the officers could have arrested the individuals, their continual seizure did not violate the 4th Amendment.
Use of Force/Knife: Willingham v. Loughnan, 321 F.3d 1299 (11th Cir. 2003). Plaintiff obtained numerous objects from a kitchen and threw them at officers including a knife that she threw at an officers back. After throwing the knife, she immediately raised her hands above her head and at that time she was shot 4 times by officers. The shots were fired within a split second of the deadly assault but when she was unarmed. Plaintiff was standing in the doorway of the kitchen where she had obtained the bottles and knife she had already thrown at the officers. In reference to the qualified immunity and the issue concerning clearly established law, the Court noted that clearly established law does not require the existence of factually similar cases. In exceptional cases an officers acts are so egregious that preexisting, fact-specific precedent was not necessary to give clear warning to every reasonable officer with what the defendant officer was doing must be unreasonable. In accord with Hope we have considered again whether, in light of general constitutional rules on deadly force that have been already identified in the decisional law, this use of deadly force would have been seen as plainly unlawful by all objectively reasonable officers; and the answer is no given the circumstances, including that the shooting occurred within a split second of an attempted murder of a fellow officer. Plaintiff has pointed to no case law.which has already been decided that the use of deadly force on a Plaintiff (1.) who had just attempted to murder one police officer and assaulted another (2.) who was not under police control, and (3.) was close by a source of weapons was unconstitutional.
Use of Force/Bean Bag: Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003). Bell was drunk and had threatened his wife who in turn phoned the police. By the time officers arrived the couple had made up and asked to be left alone. However within 40 minutes police received another call from the neighbors who advised the wife was outside in search of safety. After learning that Bell had torn up the house, an officer ran a record check and found that Bell had been arrested numerous times and had a long history of violence including several attempts at suicide. Police looked through a window and noticed that Bell was holding several knives and a meat cleaver. Bell came to the front door and drove a knife into the wall and then threw several knives at the officers. He told officers he had nothing to live for, that he would kill the officers and that he would only be coming out feet first. Bell came outside and held what appeared to be a lighter and said he was going to ignite the propane tank attached to the house. At this time, an officer discharged three bean bags, one of which struck Bell in the head .Court did not find that discharge of a bean bag was per se deadly force but found that officers were confronted by a serious threat of physical harm. Police may use even deadly force if the suspect poses a threat of serious physical harm, either to the officer or to others. Tennessee v. Garner. If the suspect threatens the officer with a weapon that risk has been established. Like the district judge, we think that Douglas should have thanked rather than sued the officers. True he suffered injury at his hands, but in his depressed and irrational state, aggravated by liquor, he might have done himself or others greater injury had they not intervened. It is easy in retrospect to say that officers should have waited, or should have used some other maneuver these propositions cannot be falsified but Graham makes it clear that the Fourth Amendment does not require second-guessing if a reasonable officer making decision under uncertainty and the press of time would have perceived a need to act. The risks of intervention unfortunately realized when one round hit Bell in the head, still seem less that the risks of doing nothing. On appeal, plaintiffs argued that the issue of reasonableness is a jury question. Under the Constitution, the right question is how things appeared to objectively reasonable officers at the time of the events, no how they appear in the courtroom to a cross-section of the civilian community. Ornelas v. United States, 116 S.Ct. 1657, holds that whether a search or seizure (other than one authorized by a warrant) is supported by probable cause is a question of law for the court of appeals, so that even the district court judges view receives no deference. Since Graham we have regularly treated the reasonableness of force as a legal issue rather than an analogue of civil negligence. This appears to be the accepted rule; the Bells do not cite, and we could not find any post Graham appellate opinion holding that the reasonableness of using force is a jury question even if no factual disputes require resolution.
Use of Force/New Application of Graham Factors: Jones v. Buchanan, 325 F.3d 520 (4th Cir. 2003). Jones, who had been drinking Canadian Mist since early morning, called the Sheriffs office around 4:30 in the afternoon and asked that someone come to his residence and take him to jail so that he would not miss court in the morning. Two deputies responded to the call and decided to transport him to a holding facility after Jones stated that he was contemplating suicide. Jones consented to being handcuffed and got into the patrol car whereupon he promptly passed out. According to Jones, the next thing he remembers is being yanked out of the car and leading into the processing room. Jones admits that he was cussing but denies that he was in any way resisting or fighting with the officers. According to Jones, he started to stand up and the next thing he remembers is being struck in the face, slammed to the floor, and struck in the back, neck and ribs with a knee. After finding Jones lying in a fetal position in a pool of blood, a jailer summoned medical attention. Jones suffered severe nasal fractures, lacerations to his nose and mouth and a bruised rib. The fracture to his nose required surgery. Jones BAC was .42. A deputy made it clear that he struck Jones with his fist and that he struck him with his knee but only after Jones used abusive language and began to get out of his chair. Joness wife, upon inquiring about how he received the injuries, was told several stories by employees of the Sheriff, such as he fell or that he had hit his nose on the bars. Criminal charges were not filed until Jones filed his civil suit and only after Sheriff Buchanan ordered the charges to be filed. In response to the civil suit, Deputies asserted qualified immunity.
This test requires us to determine the reasonableness of an officers actions and is not capable of precise definition of mechanical application. The facts and circumstances include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. The extent of the plaintiffs injury is also a relevant consideration. The question is whether the totality of the circumstances justified a particular sort of seizureCourts must avoid making artificial divisions in the sequence of events and should instead view the evidence in the full context with an eye toward the proportionality of the force in light of all the circumstances. In considering the severity of the crime at issue, the court noted that there was no crime at issue; Jones voluntarily went to the station to recover from excessive alcohol consumption. Even in a case in which the plaintiff had committed a crime, when the offense was a minor one we have found that the first Graham factor weighed in the Plaintiffs favor. Accordingly in this case, in which Jones committed no crime, the first factor weighs clearly in his favor. The next factor is whether the plaintiff posed an immediate threat to the safety of the officers or others. The court found that the officers belief that Jones was a threat was not objectively reasonable. There was no reason to believe he was armed and the facts in a light most favorable to Jones indicate that he was handcuffed and did not make and threatening moves. (Beginning to standup just a bit is insufficient to establish an imminent threat.)Finally, the court took a literal reading of the third Graham factor and found that it favored Jones. Since Jones was not under arrest he could not be construed to be resisting or attempting to evade arrest by flight. Finally the level of force used caused severe injuries to Jones. The severity of the injuries also distinguishes the Jones case from ones of minor injury. Our conclusion is confirmed by the uncontested fact that the force was not so excessive that respondents suffered hurt or injury.
Use of Force/Dog Bite: Kuha v. City of Minnetonka, 328 F.3d 427 (8th Cir. 2003). Officer initiated a traffic stop for failure to dim lights. After the suspect ran from officer and within three minutes a K-9 unit arrived. Arco was trained under the bite and hold method, tracked the suspect to the top of a hill. Arco was still on his lead bounded into some grass and bit Kuha on the leg. Kuha then grabbed Arcos head. Officers told Kuha they would not call off the dog until he released its head. After complying, medic was summoned and it was determined that Kuhas femoral artery had been pierced. The entire episode took ten to fifteen seconds. The court found that the use of a police dog does not constitute deadly force. The mere recognition that a law enforcement tool is dangerous does not suffice as proof that the tool is an instrument of deadly force. We do not read Garner as covering all uses of force that might result in death, no matter how remote the possibility Accordingly, review of excessive force claims involving police dogs is properly governed by the general standard established in Graham rather than the deadly force standard of Garner (It is unreasonable to use deadly force against a suspect unless it is necessary to prevent his escape and the officer has probable cause to believe that the suspect poses a threat of death or serious physical injury to the officer or to others.) The court went on to say that the use of a warning before releasing a dog is more reasonable than a surprise assault. The presence or absence of a warning is a critical factor in virtually every excessive force case involving a police dog. The forewarning the dog is going to attack which provides the suspects a fair chance to surrender, is more reasonable than a surprise assault.
Substantive Due Process Liberty
Failure to take into custody:
Cartwright v. City of Marine City 336 F.3d 487 (6th Cir. 2003) Officers failure to take an intoxicated man into custody who was later struck by a car did not deprive him of a liberty interest under substantive due process. The affirmative act of giving the man a ride to a convenience store was not sufficient to establish custody. In addition, officers violation of a state statute was insufficient to establish a proof of a special relationship. (slide reviewing substantive due process)
Swat Quarantine / Custody: Christiansen v. City of Tulsa, 332 F.3d 1270 (10th Cir. 2003) Swat quarantine was not sufficient to trigger special relationship and did not create danger.
Failure to act by police:
Bukowski v. Akron, 326 F.3d 702 (Returning mentally ill girl to man who later raped her.)
Hernandez, 324 F.3d. 535 ( No duty to investigate threat of workplace violence).
Murray, 323 F.3d 616 (Chiefs failure to investigate complaint actionable where officer was stalking ex)
Substantive Due Process/Trickery:
Alexander v. Deangelo, 329 F.3d 912 (7th Cir. 2003) Fraud can, depending on its consequences, give rise to a 1983 claim. Officers used trickery to induce woman to perform sex for hire on sting of police officer Good review of outrageous acts as not generally a defense to criminal prosecution.
Due Process / Terrorism:
Treasury did not violate due process rights of Muslim charitable foundation in designating it as a Specially Designated Global Terrorist.
State Created Danger Doctrine/Student Molestation/Failure to Intervene:
Windle v. City of Marion, Ind., 321 F.3d 658 (7th Cir. 2003). Officers monitored cell phone conversations between teacher and a student (minor) that indicated that both were involved in a sexual relationship. They heard the minors first name, which was unique, but failed to investigate further. It appears that the officers continued to monitor the conversations on a scanner for entertainment rather than initiate an investigation.
Plaintiff sued in federal court asserting that her right to due process was violated. Generally, a failure to protect does not rise to the level of a constitutional deprivation unless the government created the danger. Failure to intervene does not, by itself, rise to the level of creating the danger. In order to succeed in such a claim the officers must take an affirmative stepfailure to intervene in itself in constitutionally insufficient. Similarly, officers failure to follow state law and report known abuse does not rise to the level of a constitutional violation.