Civil Liability: Section 1983 Update     

 

by Elliot B. Spector

Sack, Spector & Karsten

West Hartford, CT

 

Contents

Investigative Detention

False Arrest/Prosecution

Search & Seizure

Excessive Force

Failure to Protect

Supervisory Liability

Miscellaneous

 

Investigative Detention

 

Bingham v. City of Manhattan Beach, 329 F.3d 723 (9th Cir. 2003)

 

            A sixty-two-year old African-American photographer for national magazines was pulled over by an officer at 12:30 a.m.  The officer claimed he was weaving, but Bingham contended he was driving properly and that the officer pulled him over because of his race.  Bingham’s license had expired and there was a 22-year-old outstanding felony warrant for an Andre Bingham who resided at the same address with a close physical description.  Bingham was taken to the police station where he was detained for several hours after which he was released without any criminal or motor vehicle charges being brought against him.

 

            The court upheld the denial of summary judgment on the STOP based on disputed facts as to whether or not Bingham was driving properly or not.  The court found a potential Fourth Amendment violation in that such a stop is not de minimus. (See contrary opinion Ford v. Wilson, 90 F.3d 245 (7th Cir. 1996).

 

            The equal protection claim failed, as evidence that the plaintiff was black, the officer was white, that the officer was able to see plaintiff’s race prior to the stop, that the City was predominantly white and that no traffic citation was issued, was insufficient proof of discriminatory intent or motive.

 

            Although the arrest would have been unlawful, since the statutory code prohibits the arrest of someone for solely being an unlicensed driver, the court determined that a reasonable officer could have believed that the detention for verification of the warrant was lawful in light of clearly established law and the information possessed.

 

Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 2002)

 

            Burchett observed unmarked vehicles pull into his brother’s driveway, which adjoined his home.  He claims individuals getting out of the vehicle were wearing black clothes with no identification and two had masks on.  When one yelled at him to get on the ground, he turned and ran for his porch fearing for the safety of his baby.  He was handcuffed and placed in the rear of a police cruiser for three hours with the windows up and the car off in 90-degree heat.

 

            The court found that the DETENTION was lawful under Michigan v. Summers.  The 6th Circuit has extended Summers detention of individuals who are nonresidents, as well as those who arrive at the scene.  Although the plaintiff never arrived at the search premises, the court found that because he approached the property line, paused and fled when the officers instructed him to get down, that the officers acted reasonably in detaining him.

 

            The court found that the officers USE OF HANDCUFFS was reasonable and that the officers should not be held liable for the TOO TIGHT HANDCUFFING, since immediately upon being informed that the handcuffs were too tight, they immediately removed the handcuffs on the condition that plaintiff behave.  (It should be noted that the officers described Burchett as being “generally in a rage” and he allegedly spit at persons walking by the car prior to the windows being rolled up.)

 

            The court did conclude that detaining the plaintiff for three hours in 90-degree heat with no ventilation in the police cruiser violated his Fourth Amendment rights against unreasonable seizures.  They noted that claims of excessive force do not necessarily require allegations of assault, but can consist of the physical structure and conditions of the place of detention.  The government’s interest in effecting the seizure did not justify the imposition of extreme heat on the individual.

 

Johnson v. Campbell, 332 F.3d 199 (3rd Cir. 2003)

 

            A motel clerk, who was a former police officer, reported that she felt nervous because she had previously been robbed and plaintiff who had been in the motel office drinking coffee and flipping through newspapers began to pace and rub his head and answered her polite questions curtly, which made her feel uncomfortable.  The officer found Campbell sitting in a van with another individual on a cold December night in the motel parking lot.  Plaintiff was a high school basketball coach who was registered with his players at the motel.  He at first did not comply with the request that his window be rolled down and repeatedly refused to show his identification.  During the encounter plaintiff muttered, “son of a bitch” which resulted in his arrest for disorderly conduct.  A jury found the officer not liable and the appeal was based on a denial of the trial court to enter a judgment as a matter of law in plaintiff’s favor or to grant a new trial. 

 

            The court found that the stop had occurred after the officer persisted in refusing to accept plaintiff’s refusal to cooperate.  The court noted that the Supreme Court has consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or a seizure.

 

            The officer believed that his arrest under the State Code was lawful since it prohibited, “offensively course utterance, gesture or… abusive language to any person.”  The State Supreme Court, consistent with U.S. Supreme Court precedent has limited punishment only to speech, which consists of fighting words.  “The First Amendment on the whole offers broad protection for speech, be it unpleasant, disputatious, or downright offensive.”  “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principles characteristics by which we distinguish a free nation from a police state.”  Citing, Texas v. Johnson and Holston v. Hill.  Profane words unaccompanied by any evidence of violent arousal, are not fighting words, and therefore protected speech.  Cohen v. California.  The court went on to cite a couple of cases from the 8th Circuit in which a woman said, “I will have a nice day, asshole” and where obscene gestures plus the yelling of profanities in Spanish were determined not to be fighting words.  The court granted judgment as a matter of law and remanded the case to the district court for a trial on damages.

 

Cady v. Village of McCook, Et Al., 57 Fed.Appx. 261 (7th Cir. 2003)

 

Officers were dispatched to a call that a bare-foot man, seemingly all wet and talking to himself, was jogging along a grassy area.  Plaintiff, the jogger, claimed the officers violated his constitutional rights by stopping him for twenty minutes.  He also claimed he stopped jogging, gained weight, lost self esteem and much of his social life and had a hard time finding work due to the incident.  The court found that the stop was reasonable in that officers engage in permissible encounters that are not limited to situations involving possible criminal activity, but also situations in which persons may need help or are in danger of harming themselves or others.  The twenty-minute encounter was reasonable in light of the fact that the plaintiff engaged the officers in a discussion about religion and his rights.  They explained to him that he was not under arrest and was free to leave, and in fact, let him leave without identifying himself.

 

Feathers v. Aey, 319 F.3d 843 (6th Cir. 2002)

 

            At 1:25 a.m. officers received an anonymous 911 report of a white male with a beard, no shirt, possibly intoxicated, who pointed something at the caller, so he possibly has a weapon.  Officers saw plaintiff who matched the description on his porch and repeatedly told him to take his hands out of his pocket.  He did but then put them back in and turned toward the door into his house and leaned inside to tell his father to get a video camera.  The officers seized him from behind and while trying to pin him against the pillar, one of the officer’s finger was bitten.

 

            The Court found that because the caller was anonymous, the Terry-Stop violated plaintiff’s fourth amendment rights under Florida v. J.L.  Also, the information received by the dispatcher did not support a finding of reasonable suspicion.  Since the officers did not know the information came from an anonymous source, and what was relayed to them, amounted to reasonable suspicion for a Terry-Stop, they were entitled to qualified immunity.  The Court noted that there might be a legitimate question about whether the City should be held liable for a policy that does not inform dispatched officers of the reliability of their tip.

 

            Finally, the Court found that the use of force was reasonable to affect the Terry stop and that the arrest was lawful because it was made based on the officer having his finger bitten.

 

Marshall v. Columbia Lea Regional Hospital, 345 F.3d 1157 (10th Cir. 2003)

 

            Profiling claims may be substantiated by evidence of (1) an overtly discriminatory policy or (2) statistical comparisons between the alleged violated group stops or arrests and the relevant population or (3) direct evidence of police motivation.  In this case, Marshall attempted to prove discriminatory motivation by direct evidence of the officer’s pattern of traffic stops and arrests, his questions and statements and other relevant circumstances. 

 

Marshall first claimed that he did not violate any traffic violation, and therefore, the stop was pretextual.  Second, because the officer made eye contact with him prior to activating his emergency lights he found that the officer was ascertaining his race.  Third, the first words out of the officer’s mouth were “is a few rocks worth all that?” in an accusatory tone, inferring the officer was acting on the basis of stereotype or prejudice, rather than evidence.  Fourth, on the citation form designating gender, the officer wrote “B-M” making a racial designation where none was called for.  Fifth, the officer wrote on the original criminal complaint that Marshall accelerated to 100 mph, drove through a four way stop and weaved from lane to lane but failed to mention these facts in a sworn affidavit.  This change of story tends to show pretext.

 

The above facts created a sufficient basis to allow this case to go to trial as the court compared it to Johnson v. Crooks, 326 F.3d 995 (8th Cir. 2003) where a police officer observed a motorist’s race, followed her closely for eleven miles, stopped her for a traffic violation she denied, and later contacted her apparent employer…”

 

In addition to the above acts was evidence of prior misconduct.  Slightly more than a year before this incident, the officer was forced to resign from the Midland Texas Police Force, which found an extensive pattern of misconduct in violation of citizen’s constitutional rights including evidence in more than thirty cases in which the officer falsely charged arrestees with possession of narcotics, mishandled narcotics evidence, planted evidence and used evidence to barter for sexual favors.  In a termination memo the chief stated that the officer had “failed to treat people fairly and equally under the law.” 

 

Warrantless Blood Tests:

 

The plaintiff also claimed that the warrantless blood test violated his Fourth Amendment Rights.  At the hospital plaintiff told the nurse that he did not consent to the blood test, but would not resist attempts to take his blood.  Schmerber v. California, stands for the principle that warrantless blood tests performed without consent are presumptively unreasonable unless the state actors involved have probable cause and exigent circumstances.  Schmerber involved a case in which there was a serious accident with a potential of a felony prosecution, therefore authorizing a potential warrant for a blood test.  In this case, the State allowed for warrants where a DUI led to death or great bodily injury or would produce material evidence in a felony prosecution.  Since no warrant could be obtained in this case, a blood taking based on exigent circumstances without a warrant could not be possible.  The court did find that the medical personnel would be entitled to qualified immunity based on their reliance on the police officer’s request to take the blood.  The case was remanded for determination of sufficient evidence for an equal protection claim and whether Marshall consented to the blood test. 

 

False Arrest/Malicious Prosecution

 

Thompson v. Wagner, 319 F.3d 931 (7th Cir. 2003)

 

            Five months after Berry had knowingly purchased two diamond rings with a bad check, he told officers that he gave the ring to his girlfriend who took a diamond out, put it in her own ring, gave it to her brother, who in turn gave it to his wife, the plaintiff.  The two deputies went to the store where the plaintiff, a 50-year-old woman, had worked for 20 years.  They told her that they believed that the diamond that she was wearing was stolen, but that she would not be arrested if she admitted her guilt.  The officers asked to take the ring, which led to her asking to call her husband.  When she got up from the chair and began to walk away, officers handcuffed her and then placed her in a police cruiser.  She remained cuffed for 5-10 minutes and waited in the car for about 10 minutes before her husband arrived and turned over the rings, which proved not to be the stolen diamonds.  The court found that the officers did not have probable cause to arrest her for possession of stolen goods as they were acting on a statement five months after the crime, given by a convicted felon who had previously lied to him.  In addition, the officers had no knowledge about diamonds.

 

            The court also found that their theory of obstruction failed as when she wanted to get up and call her husband, she had every right to do so.

 

Finally, the handcuffing and detention could not be justified under Terry v. Ohio, as the officers made no attempt to say their actions were necessary for their own protection.

 

Franklin v. Fox, 312 F3d 423 (9th Cir. 2002)

 

            Twenty years after the sexual molestation and murder of her eight-year-old best friend, Franklin-Lipsker informed the police that she had witnessed the crime and that her father had molested both her and her sister.  After Franklin was convicted and sentenced to life in prison, a federal habeas court found that his constitutional rights had been violated and ordered that his conviction be vacated and that he be granted a writ of habeas corpus.  He then sued his daughter and the investigating officers claiming they conspired to arrest him without probable cause based on the following allegations.

 

A.  The officer relied on a witness who had undergone hypnotherapy to restore their memory thus being inadmissible.

 

This claim failed as Franklin could not produce evidence that the officers knew that Franklin-Lipsker’s recovered memories of the murder were a result of hypnosis and probable cause determinations may rely on evidence that would not be admissible at trial. 

 

B.  Details of the crime were available in media accounts available to Franklin-Lipsker.

 

This claim failed as Franklin could produce no evidence that the officers actually read the articles prior to his arrest and there was independent evidence provided by the daughter that was not in the media account.

 

C.  The officers and daughter conspired to suppress her criminal record including arrests for prostitution and possession of cocaine.

 

The court found that although suppression of such information might have affected Franklin’s ability to impeach his daughter at trial, it was not relevant to probable cause and qualified immunity determinations.

 

            When first confronted by the police, Franklin asked them whether they had spoken with his daughter or daughters.  Franklin claimed that officers should not have relied on this statement in making the arrest.  Assuming this to be true, in taking this statement out, the court found the officers still had sufficient basis to substantiate probable cause for arrest.  It was reasonable for them to believe that Franklin-Lipsker was a credible witness.  They checked her statement against information in the Sheriff and Coroner files and found they possessed information they believed was not known to the public.  Although there were some discrepancies, the court asked only whether the officers reasonably could have believed that such discrepancies could be expected of an eyewitness account twenty years after the event.

 

            Finally, they had verified certain information with the sister who shared her own suspicions of her father’s guilt.  The court concluded that Franklin failed to demonstrate any issue of material disputed fact regarding the reasonableness of the investigators belief in their probable cause.  The court also found that Franklin-Lipsker had not conspired with the officers.  The State’s Attorney and prison official who arranged for the daughter to meet with her father in prison, in violation of the sixth amendment rights were protected by qualified immunity.

 

Crockett v. Cumberland College, 316 F.3d 571 (6th Cir. 2003)

 

            Two male and two female students were in a college dormitory room dancing, tickling, and slap boxing.  After a third male entered the room, one of the girls was held down and raped during which a couple of other male students entered the room.  Two of the male students were arrested for complicity in first-degree rape.  The investigator and county attorney interviewed the females, and reviewed reports from Cumberland officials prior to submitting an arrest warrant application.  The boys were not indicted and brought suit, claiming lack of probable cause.

 

            The court found that there was sufficient probable cause to make the arrest and that once probable cause is established an officer is under no obligation to continue an investigation or look for additional evidence, which may exculpate the accused.  Officers are also under no obligation to give any credence to a suspect’s story nor should a plausible explanation require them to forego an arrest pending further investigation.  Reliance on the statements of the victim and an eyewitness may alone be sufficient to establish probable cause.  Absent evidence that the officers knowingly or in reckless disregard for the truth, made material misstatements, officers would be entitled to qualified immunity.

 

Coonts v. Potts, 316 F.3d 745 (8th Cir. 2003)

 

            Plaintiff interfered with officers’ execution of a facially valid writ of execution on her property.  She was arrested after refusing entry, assaulting the officers and destroying some of the property to be levied.

 

The district court found that the officers had probable cause, but they charged her with the wrong crime.  The appellate court noted that there is a difference between unlawful arrest and charges named in error.  A valid arrest does not turn on the suitability of the stated grounds for arrest but, instead, on whether the officers have probable cause to believe that an offense has been or is being committed.

 

            The court affirmed the summary judgment on behalf of the officers then sanctions imposed against counsel for failure to conduct a reasonable inquiry of the factual and legal basis for a claim before filing it.

 

Valente v. Wallace, 332 F.3d 30 (1st Cir. 2003)

 

            Plaintiff was arrested for writing bomb threat notes at her place of employment.  She was never prosecuted because the prosecutor failed to meet the discovery deadline.  She claimed officers did not have sufficient probable cause based on a handwriting analysis and that a psychological profile commissioned by the company suggested a culprit with traits different from hers.  The court noted that although the handwriting expert can do little more than say that it was “more likely than not” and that handwriting is an inexact science, psychological profiling seems to be even more inexact.  In addition, the notes began not long after she joined the company and were found in the building in which she worked.  Also, of some limited significance was the fact that the detective said she appeared to be nervous and usually innocent persons protest much more strongly when wrongly accused, justifying sufficient probable cause.

 

Kukla v. Hulm, 310 F.3d 1046 (8th Cir. 2002)

 

            Plaintiff, a truck driver, refused to turn over his logbooks to an un-uniformed inspector who refused to identify himself.  A few seconds later, a uniformed enforcement officer, driving a marked vehicle approached and Kukla provided this officer with all of the appropriate paperwork, which was in order.

 

            The un-uniformed inspector issued Kukla a ticket for failing to produce his logbook and when Kukla refused to sign, a state trooper arrived and physically handcuffed him.

 

            There was no federal or state regulation creating an offense for failing to produce a logbook, however, when requested to do so by a uniformed inspector, truckers may be arrested.  Because there is no offense for refusing to turn records over to a person who is not identifiable as an authorized officer or inspector, Kukla had a viable false arrest claim.

 

            Kukla also claimed that the handcuffs were placed on too tightly and not loosened for 15 minutes despite his repeated complaints.  Given the circumstances, including the minor offense, the lack of immediate safety threat and lack of resistance, the court found that there was a genuine issue of whether the force used was excessive.

 

Abrams v. Walker, 307 F.3d 650 (7th Cir. 2002)

 

            Plaintiff, an attorney, followed his client from court onto a highway.  When Abrams’ client was stopped by a trooper, he backed up on the highway and approached the officer conducting the stop.  Upon questioning the officer about the stop, the officer informed him to return to his car but he refused and was told that he was going to be issued tickets.  Plaintiff then turned to return to his car and said he was going to leave.  The officer, while stopping plaintiff, found a knife in his car and placed it on top of the roof.  When the officer returned to his cruiser to call for backup, plaintiff retrieved the knife and put it back in his car.  He was then taken into custody and charged with obstructing a police officer and resisting arrest in addition to improper parking and improper backing.

 

            After being found not guilty of the charges, plaintiff sued for malicious prosecution and retaliation against him for exercising his first amendment rights.

 

            To establish a prima facie case for First Amendment retaliation, the plaintiff must demonstrate that his conduct was constitutionally protected and was a substantial factor or motivating factor in defendant’s challenged actions.  If the plaintiff proves that the challenged action would not have occurred but for the constitutionally protected conduct, the burden shifts to the defendant who must show by a preponderance of the evidence that he would have taken the same actions, even in the absence of the protected conduct.

 

            The court cited cases stating that the Constitution permits citizens to criticize police officers both verbally and non-verbally, such as, making an obscene hand gesture and yelling expletives and shouting at police, however, not all conduct is protected, such as, refusing to remove a mask, interfering with an arrest, or refusing to clear an area.

 

            The court concluded that the plaintiff failed to demonstrate his conduct was constitutionally protected as he admitted that he was disobedient and dilatory, attempted to flee the scene once informed he would be ticketed, and retrieved the weapon, all resulting in the effect of interrupting and delaying the officer’s traffic stop.  The court declined to rule in accordance with the 2nd and 11th Circuit, that the existence of probable cause is a complete defense to a First Amendment retaliation claim in the context of an arrest.

 

Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003)

 

            Fifteen years after his conviction, the plaintiff was pardoned on the grounds of innocence after fingerprints and other information implicated another individual.  A jury found officers liable for concealing evidence favorable to the defense and awarded Newsome $15,000,000.00 in damages followed by a court award of $850,000.00 in attorney’s fees and costs.  At the initial trial, three individuals positively identified Newsome as the killer.  Twenty years later, at the civil trial, one of the witnesses was dead, one could not be found, leaving Rounds, who denounced his earlier testimony, insisting that the two detectives insisted that he select number 3 in a line up.  The officers admitted that one of the other witnesses had improperly been shown photos before the line up to improve the chance that the witness would pick out Newsome.

 

            Rounds testified that the officers threatened him with imprisonment if he told the prosecutors what actually happened at the line up.  The City’s interpretation of this was that the officers told Rounds that he faced criminal investigation unless he told the whole truth.

 

            Liability was premised under the due process clause based on the concealing of exculpatory evidence, namely details of how witnesses were induced to finger Newsome.  The court discussed the difficulty in cases relying on eyewitness identification, concluding, “this is why it is vital that evidence about how photo spreads, show ups, and lineups are conducted be provided to defense counsel and the court.”

 

Dahl v. Holley, 312 F.3d 1228 (11th Cir. 2002)

 

            Dahl founded a citizens group to provide information and encourage reform of the legal system.  Her son was arrested for possession of narcotics based on information provided by a confidential informant named McCardle.  She alleged that both her son and McCardle were being pressured to be informants for the police and that McCardle expressed concern that he could not “get out”.  Dahl encouraged McCardle to attend the meeting with the Mayor to discuss police department corruption.  When he expressed concern that police would resurrect old drug charges and he wouldn’t be able to afford an attorney, Dahl through the organization, offered to pay up to $10,000 in attorney’s fees on his behalf.  McCardle then went to the police and told them that Dahl had offered $10,000 to him to lie about her son’s arrest.  During the investigation, taped conversations revealed nothing related to this, but spoke of the meeting with the Mayor during which Dahl specifically told McCardle to tell the Mayor the truth.  Dahl was arrested and charged with bribing a witness and a search warrant was issued for her home and business, based on an affidavit that did not include the exculpatory statement that McCardle should not lie.  At trial, the court granted a judgment of acquittal because the state failed to prove McCardle’s statement would be used in an official proceeding.  Dahl then sued for false arrest and illegal search as well as First Amendment retaliation.

 

            Based on the record that officers had evidence which would lead them to reasonably believe that Dahl had offered something of value for McCardle to misrepresent circumstances surrounding her son’s stop and search (even though the tapes only mention the meeting with the Mayor) it was not an illogical conclusion to believe that McCardle would also give testimony in the proceeding against her son.  The court concluded that the officers had arguable probable cause for the arrest and that they did not omit material facts which would have negated a finding of probable cause with regard to the search.

 

With regard to the retaliatory claim, they found that the existence of probable cause to arrest Dahl defeated her First Amendment claim.

 

Hinchman v. Moore, 312 F.3d 198 (6th Cir. 2002)

 

            Plaintiff’s best friend stayed with her throughout an investigation of the murder of the best friend’s husband.  After the friend admitted to killing her husband, police went to plaintiff’s home to speak to her.  After she refused, the officers were advised by a detective that there was an investigative subpoena on the way and they should return to plaintiff’s apartment.  Upon observing plaintiff leaving her apartment and getting in her car, they asked her to wait for the investigative subpoena.  She refused and in backing up, one of the officers claimed he was struck by the vehicle.  Plaintiff was charged with felonious assault.  She claimed that she never struck the officer and was acquitted by a jury.

 

            In the false arrest action, the District Judge granted defendant’s motion for summary judgment because a State Judge at a preliminary hearing had determined probable cause and the record indicates that probable cause existed.

 

            Collateral estoppel applies when there is: (1) an identity of parties; (2) a valid final judgment; (3) the same issues were actually litigated and necessarily determined in the first proceeding, and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue.

 

The Appellate Court found that a finding of probable cause in a prior criminal proceeding did not bar the plaintiff’s subsequent civil action for malicious prosecution where the claim was based on the officers supplying false information to establish probable cause.  The key factor is that the claim here is more accurately characterized as a challenge to the integrity of the evidence than to its sufficiency.  Therefore, the identity of the issues is lacking.

 

The court concluded that at the summary judgment stage, they were required to accept plaintiff’s factual assertions and falsifying facts to establish probable cause is patently unconstitutional.

 

Napier v. Preslicka, 314 F.3d 528 (11th Cir. 2002); 331 F.3d 1189 (11th Cir. 2003)

 

            The court ruled that a prisoner could not bring a claim against officers for false arrest in an unrelated misidentification case while plaintiff was serving time in prison.  42 U.S.C. §1997e states that “no federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injuries suffered while in custody without a prior showing of physical injury.”

 

            Plaintiff claimed that the false arrest caused him embarrassment and mental anguish from the deprivation of his Fourth Amendment rights.  Since the emotional distress resulted while the plaintiff was in custody, PLRA applies to prisoner lawsuits that claim injuries suffered during custodial episodes, even if such custody occurred outside the prison walls.

 

Giannullo v. City of New York, 322 F.3d 139 (2nd Cir. 2003)

 

            Question of arguable probable cause precluded summary judgment on behalf of officers.  Undercover officers conducting surveillance in a high crime area near methadone clinic saw Giannullo exit the clinic, speak to Oliver, return to the clinic, and five minutes later return with a brown bag which he handed to Oliver.  Separate officers stopped Oliver and Giannullo.  The officers stopping Oliver found illicit methadone and heroin.  If the officers stopping Oliver and finding the contraband occurred prior to Giannullo’s arrest, the collective knowledge doctrine would have provided sufficient probable cause.

 

Anderson v. Larson, 327 F.3d 762 (8th Cir. 2003)

 

            A state narcotic officer working undercover was befriended by a drug suspect who told him his attorney, plaintiff, took drugs in exchange for legal services.  The officer met Anderson on the pretext of discussing a fake charge against him and Anderson willingly took one half ounce of cocaine as partial payment.  They then discussed future delivery of drugs to settle the rest of the bill.  Anderson’s conviction was overturned by the State Supreme Court, which found that there was insufficient evidence of solicitation. 

 

            With regard to the prosecutor’s claim of absolute immunity, the court held that giving legal advice to police during an investigation strips a prosecutor of absolute immunity because it is not a normal part of prosecutions.  The court found no liability for the use of the attorney’s client in the investigation as the attorney/client relationship is not intended to protect an attorney from committing crimes.

 

            The court also found that from the officer’s perspective, when Anderson accepted drugs without protest in apparent exchange for legal services, there was ample probable cause for arrest.

 

Shepard v. Ripperger, 57 Fed.Appx. 270 (8th Cir. 2003)

 

            Shepard was helping his friend move some furniture when police called his friend over to a squad car explaining they were investigating the theft of furnishings from the residence.  When Shepard approached, he was told that the police needed his name, to which he responded, “I don’t think so.”  Officers then stepped out of the police car and had Shepard put his hands on the hood.  He moved his hands saying the hood is hot and was arrested for interfering with an officer.  The court found that the officers were entitled to qualified immunity because the law is clearly established about whether refusing to identify oneself provides probable cause for arrest.  The court noted that the Supreme Court has declined to decide whether a person may be punished for refusing to identify himself in the context of a lawful investigative stop. 

 

Kent v. Katz, 312 F.3d 568 (2d Cir. 2002)

 

            Katz responded to a fire complaint finding two employees of the plaintiff who had been burning brush on his property for 18 days.  When Kent drove up, the officer noticed that his eyes were red and asked him if he had been drinking to which he responded sarcastically, “not very much”.  The officer stated that he was walking unsteadily, swayed as he stood and his speech was slurred and had a strong odor of intoxicants.  Kent denied these allegations and provided affidavits from his employees that he had not been drinking.  During the arrest for driving under the influence, the plaintiff’s wrist was broken.  The State reduced the charges to careless and negligent operation of a motor vehicle and accepted plaintiff’s nolo contendere plea.  The only issue on appeal is whether the officer was entitled qualified immunity on the false arrest claims based on a finding of probable cause.  The court first determined that the plea on the lesser offense did not constitute collateral estoppel as the issue of probable cause was never litigated.  Also, the undisputed facts that his eyes were red and that he made the statement “not very much” when asked if he was drinking, did not establish probable cause given the context.

 

            The most interesting part of this case was the dicta in the concurring opinion “what this case illustrates is that prosecutors consenting to reduce criminal charges in exchange for a defendant’s plea should consider including in their agreements at least a settlement, and sometimes a complete release, of related civil liability claims against law enforcement officers.”  Newton v. Rumery, 480 U.S. 386 (1987).

 

Search & Seizure

 

Loria v. Gorman, 306 F.3d 1271 (2nd Cir. 2002)

 

            Police received two noise complaints within one hour.  Loria was hosting a party for 70 to 80 people, predominately indoors, but included some guests on the driveway.  Two officers arrived at approximately 1:30 a.m. followed by a separate group of officers approximately 45 minutes later.  When a friend opened the door, officers asked the owner to come outside.  Loria responded that he had nothing to say to the officers and told his friend to close the door.  When the friend refused, Loria approached the door and attempted to close it.  The officer stuck out his arm and leaned into the door, pushing the door back, hitting Loria in the face and knocking him backwards.  At that point, the officer took a couple of steps into the foyer grabbed Loria and pulled him outside placing him under arrest.

 

            Plaintiff claimed that when the officers arrived the music was off, however, if policemen receive a complaint from private citizens, that if true would justify an arrest, and they reasonably believe it is true, they cannot be held liable merely because it later turns out that the complaint was unfounded.  Therefore, the alleged factual dispute as to whether or not the music was off would not be material and the officers were found to be engaged in an authorized official function when arriving at plaintiff’s address.

 

            The court found the officer’s entry into Loria’s home to make the arrest was unlawful, as exigent circumstances did not exist justifying the entry.  The court suggested the following factors as guides to determine exigent circumstances justifying a warrantless entry: (1) The gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause… to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended, and (6) the peaceful circumstances of the entry.

 

Tower v. Leslie-Brown, 326 F.3d 290 (1st Cir. 2003)

 

            Officers entered the Tower residence to arrest Mr. Tower and to remove the children on a child abuse case.  At the time of the entry, the officers did not have the arrest warrant, but were relying on the representation of a court official that a warrant had been issued.  The court found that although an entry into a home to make a warrantless arrest would be a violation of clearly established law, the officers were entitled to qualified immunity based on their reliance of representations by a court official. 

 

            The plaintiffs further claimed that the officers seized their residence by staying behind after Tower’s removal.  In such a claim the court balances the privacy related and law enforcement related concerns to determine whether the intrusion was reasonable.  In this case, the officers remained to preserve the safety of the remaining occupants, the Towers and the children, and therefore their actions were reasonable.  The Towers claim that the officers acted unreasonably in searching their residence.  After Towers was removed the officers conducted a protective sweep to ensure that no other persons were in the residence.  The court also found this to be reasonable.  Finally, the Towers claimed that the officers violated their Fifth Amendment rights under the taking clause by making long distance phone calls without authorization.  The court noted that although the Fifth Amendment proscribes taking without just compensation because there was an available state remedy this claim failed.

 

Brocuglio v. Proulx, 2003 WL 21369258 (2nd Cir. 2003)

 

            Officers were sent to place tickets on abandoned cars located on the plaintiff’s property pursuant to a town ordinance.  Defendants ticketed several vehicles in the front portion of the yard and then noticing others in the back, proceeded through a fence into plaintiff’s yard where they ticketed more vehicles.  The district court granted a partial summary judgment in favor of the plaintiff with regard to entering his property and ticketing vehicles in the backyard without a warrant.  The Appellate Court denied defendants’ claim that they were entitled to have the issue of qualified immunity preserved for trial based on disputed issues of fact.  At the time of the events giving rise to the action, it was clearly established that the Fourth Amendment warrant requirement applied to administrative searches and that a fenced in backyard is curtilage, entitled to Fourth Amendment protection. 

 

Lori Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th Cir. 2003)

 

            Aryan Nations planned a parade through the downtown streets of Coeur D’Alene.  The Jewish Defense League said they would protest and warned that the streets would “run red with blood”.  Several hundred people gathered to protest and tensions were high.  Intelligence was received that explosives had been stolen from a construction site approximately 300 miles away.  One of the plaintiffs, Crowell, was wearing a heavy backpack with two cylindrical objects at the bottom.  He repeatedly refused the defendant officer’s requests to consent to a search of the backpack and refused to give the officer his name becoming louder during the defiant confrontation.  The officer had knowledge of the Olympic backpack bombing.  He radioed his Lieutenant who told him to “deal with it”.  A few seconds later, another supervisor said, “we need to look at that pack and if you won’t let us look in the pack, arrest him”.  The officer did just that, was sued and the jury found for him as well as other defendants.

 

            The Appellate Court found insufficient basis to justify the search of the backpack, however, found that the officer was entitled to qualified immunity.  “Police officers rarely, if ever, can objectively remove themselves from the immediate threats that they face, and yet they may have the obligation to risk their own lives to protect the public, while at the same time traversing difficult contours of constitutional law.  The Supreme Court has ‘frequently observed…the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment.’”.  For this reason, “law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable and should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.”

 

            Neither supervisor could be held liable due to the jury’s verdict in favor of the officer.  In addition, neither supervisor knew the specific facts confronting the officer and therefore did not know that the arrest or search would be unlawful.

 

King v. Fletcher, 319 F.3d 345 (5th Cir. 2003)

 

            An investigation into chop shops led to an inspection of vehicle identification numbers and subsequent seizure of the vehicles.  The court found disputed issues of fact with regard to the consent to check the VIN numbers as well as whether the officers had probable cause based on knowledge that vehicles with rebuilt salvaged replacement parts, may lack VIN numbers or may not match VIN numbers on other parts of the vehicle.  Finally, the claim that there were adequate post deprivation remedies failed because the remedy may not be adequate if plaintiff’s have to go to unreasonable lengths to recover their property.

 

David W. Lanier v. Ed Bryant, et al., 332 F.3d 999 (6th Cir. 2003)

 

            Plaintiff, Judge Lanier, was convicted of sexually assaulting women in his chambers in 1992.  He brought a complaint claiming the defendants violated the Federal Wiretap Act by illegally intercepting telephone conversations between himself and other individuals, and then using these recordings to prosecute him.  He claimed that the City had a policy and custom of instructing its police officers to follow FBI orders regardless of whether the FBI ordered the police officers to violate established law.  The court found that these conclusory, unsupported allegations were insufficient to state a claim.  They also found that Lanier failed to bring his claim within the two year statute of limitations under 18 U.S.C. Section 25-20(a) which provides that a civil action may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation. 

 

Caldarola v. The County o Westchester, 343 F.3d 570 (2nd Cir. 2003)

 

            The Department of Public Safety videotaped corrections officers who had been arrested for fraudulent job injury claims in the Department of Corrections parking lot as they were escorted from the DOC building.  Copies of the videotape were distributed to the media.  The court found that such filming of a “perp walk” does not constitute an invasion of privacy that is protected under the Fourth Amendment.  In Lauro v. Charles, 219 F.3d 202 (2nd Cir. 2000) the court found that a staged perp walk in response to media interest violated the plaintiff’s Fourth Amendment rights.  In this case, the perp walk was not staged, but was part of the actual arrest process.  In evaluating the privacy interests versus the government interest, the court found that there were no constitutional violations.  The interest delineated included informing the public about the government’s efforts to stop abuse of disability benefits by its employees, deterring others from attempting similar crimes and informing and enabling members of the public to come forward with additional information relevant to the law enforcement investigation. 

 

Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003)

 

            Based on an allegation that $26.00 disappeared from a teacher’s desk, an officer took thirteen fifth grade male students into the boys’ room, ordered them to drop their pants, and inspected their underwear to ensure that the money was not inside.  The appellate court held that this mass search, without individualized suspicion, was unreasonable and thus a violation of the Fourth Amendment.  261 F.3d 1160 (11th Cir. 2001).  The Supreme Court vacated that judgment in light of Hope v. Pelzar.  Plaintiff claimed on remand that case law provided “fair and clear” warning to the officer that his conduct was unconstitutional.  They cited Vernonia Sch. Dist., 47J v. Acton, 515 U.S. 646 (1995) for the proposition that suspicionless searches were allowed only in limited context as the Supreme Court ruled that drug testing of high school students without suspicion was unconstitutional.  They also cited three Eleventh Circuit cases; one decided a year after the incident in question, and the other two, which were factually distinguishable.  Finally, they cited six opinions from other circuits.  The court held that only Supreme Court cases, Eleventh Circuit case law, and Georgia Supreme Court case law created clearly established law in the Eleventh Circuit.  Therefore, federal case law at the time did not provide school defendants and police with “fair warning” that a strip search of an elementary school class for missing money would be unconstitutional.”  (Note: The Eleventh Circuit’s case law would now indicate that it is unconstitutional and at least six other circuits have also found such actions to be unlawful.)

 

Excessive Force

 

Jones v. Keller, 325 F.3d 520 (4th Cir. 2003)

 

            After drinking all day, Jones remembered he had to go to court the next day and called 911 so the police would pick him up and take him to jail so he could sleep it off.  In booking, he asked an officer to un-handcuff him because he was smothering.  Deputy Keller told him to quiet down, which led to an exchange during which Jones admits to using pretty foul language.  When he stood up enough to alleviate his breathing difficulties, he alleged the officer knocked him to the floor and jumped on him, breaking his nose.  Deputy Keller claimed that Jones was not handcuffed and took a swing at him, after which Keller accidentally hit Jones’ nose while attempting to put him in a chin lock.  However, Sheriff Buchanan testified that Keller made it clear that he hit Mr. Jones in the nose with his fist, and he also bragged about the incident to the Sheriff’s son.  Officer Hughes testified that Keller commented that his knee accidentally hit Jones’ nose.  The court found that Keller had used excessive force under a Graham v. Connor analysis.  First, there was no crime at issue since Jones voluntarily went to the station.  There was no immediate threat to the safety of the officers, as Jones was not armed, he was alone in a booking room with the deputy and according to his testimony, was handcuffed.  Finally, he was not resisting arrest at the time Keller initiated the force against him.  Jones concedes that he was drunk, angry and using foul language, however, the mere use of foul language does not justify an objectively reasonable police officer knocking down the drunk and jumping on him and breaking his nose.

 

Lumley v. City of Dade City, Florida, 327 F.3d 1186 (11th Cir. 2003)

 

            Lumley shot a Wells Fargo guard, seized a bag of money, and engaged in gunfire with that guard and another prior to carjacking a vehicle and escaping.  Seven days later, an informant’s tip led to his apprehension in Georgia.  Because he had a bullet in his jaw, officers took him to a local hospital, where the doctor said he was not competent to remove the bullet.  He was taken to jail, and waived extradition to Florida.  Knowing that he could not be accepted at the detention facility with a gunshot wound, the deputies brought him to a medical center where they had him strapped to a hospital bed, guarded around the clock and prohibited all visitors including his family members and lawyers.  Lumley consented to the surgery and when the bullet was removed, it was immediately handed over to Sergeant Register.  Lumley’s first claim was that he was denied his Sixth Amendment right to counsel.  The court ruled that since Lumley was not interrogated and the formal criminal proceedings had not been initiated, his Sixth Amendment right to counsel had not been triggered. 

 

            He next contended that excessive force was used in strapping him to a hospital bed.  The test applied to pretrial detainees in the 11th Circuit is the Fourteenth Amendment’s due process clause requiring plaintiff to show that the defendant’s conduct “shocks the conscience.”  The court found that the use of force in question on a dangerous criminal with a violent record who poses a significant risk of flight having escaped from prison on two separate occasions could hardly be said to shock to the conscience.  The plaintiff’s privacy claims under the Fourteenth Amendment also failed because Dr. Sack acted alone as opposed to Lumley’s contention that he acted in conspiracy with the officers to remove the bullet from his face.

 

McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003)

 

            McCormick, always carried an ornate wooden walking stick, approached a white female in a laundry mat and began harassing her by saying, “ bye, bye white race, putting pieces of banana peel into her soap dispenser, telling her all white people should go back west and using other racial insults, resulting in the laundry owners calling the police.  Before their arrival, McCormick claims the white woman came at him and he pushed her causing her to fall backwards, striking her head on the pavement.  Upon arrival, Officer Walker saw the female in the chair bleeding profusely from the head, suggesting she had been subjected to an aggravated battery.  McCormick claimed that he did not hear the officer say he was under arrest as he was speaking to another individual, and when he turned, a mist of liquid hit his face (pepper spray).  McCormick then came at the officer, refused to obey the officer’s order to stop and drop the stick as the officer backed out of the laundry.  As McCormick advanced with the stick above his head the officer retreated, falling over a parking stone.  As McCormick continued to charge, the officer fired a shot, saw blood, but McCormick still was continuing forward with the stick.  Another officer again sprayed McCormick to no avail, and then the two officers took McCormick to the ground, but unable to restrain him, he rose again before again being brought to the ground.  When other officers arrived, they used a stun gun and then were able to place handcuffs on McCormick.

 

            McCormick’s first argues that Officer Welker had no reason to arrest him since he had not interviewed any witnesses.  The court found that he had sufficient trustworthy information to make an arrest for a violent felony upon seeing the bleeding woman and being told who caused her injury.  McCormick claimed that the use of pepper spray without warning was unconstitutional.  The court found that the use of the non-lethal weapon that would impose no lasting injury was proportional to the threat posed by McCormick and that the Constitution does not require advanced warning to a violent felon where the use of pepper spray is forthcoming.  “Shock and surprise may be proper and useful tools in avoiding unnecessary injury to everyone involved when dealing with potentially violent suspects.”

 

            McCormick claimed that he had the stick over his head in submission.  The court found that an objectively reasonable officer would have perceived McCormick as a threat, advancing toward him pumping and swinging a stick and ignoring repeated orders to drop the stick.  When the officer tripped, he became quite vulnerable to attack and could reasonably perceive that McCormick posed an imminent threat of violence to him and others. 

 

D’Agastino v. City of Warren, 2003 WL 2220530 (6th Cir. 2003)

 

            Plaintiff who was intoxicated and threatening suicide ran from the hospital emergency room in his underwear.  Officers were dispatched and advised that a white male in his fifties wearing only green underwear had escaped from the hospital and was HIV positive.  The first officer to arrive claimed the plaintiff began running towards him yelling he wanted to die.  The officer struck him once in the leg with his baton and a second time in the shoulder causing him to fall face first onto the pavement, where he was handcuffed.  The plaintiff claims that he broke his fall with his arm, and once on the ground and handcuffed, the officer repeatedly slammed his face into the pavement.  He suffered multiple facial fractures.  Taking the plaintiff version as true, the court found that the injuries were not inconsistent with the plaintiff’s statement.  Although there were issues of credibility, particularly in light of plaintiff’s .26 alcohol level, the credibility issue must be left to the jury.  

 

Stewart v. Prince George’s County, Maryland, 75 Fed.Appx. 198 (4th Cir. 2003)

 

            Plaintiff kept on going back into a Target store being disruptive and threatening two employees.  The first time Officer Vitko responded he warned him to leave and told him that he would be arrested if he returned.  The second time he brought plaintiff to a security room and explained that he was issuing him a citation.  Stewart became agitated and a melee ensued during which Vitko frantically radioed for assistance.  He pepper sprayed the plaintiff and struck him with his asp baton.  About five minutes into the struggle, another officer arrived and thereafter, three more, who together subdued the plaintiff and cuffed him behind his back.  The plaintiff went into cardiac arrest and died en route to the hospital.  Three witnesses disputed the officers’ and security staff’s version of the events.  They claimed that officers pummeled the plaintiff outside the store and he lay defenseless on the ground crying out for the police officers to stop. 

 

            Although the differing statements of witnesses, would normal preclude a summary judgment, in this case, there was videotaped footage that confirmed the officers’ testimony and destroyed enough of the plaintiffs’ eyewitness versions to require that judgment be given to the officers.  When plaintiffs’ counsel was asked at the hearing why the videotape was inconsistent with his witnesses’ statements, he responded “the tape is lying”.  Plaintiffs’ counsel did not offer any evidence as to how the videotape was lying and the court found no reason to indulge in speculation.  A nonmoving party may not rely on mere conclusory allegations, speculation or the doing of one inference upon another.  In addition to the videotape evidence there was also the frantic radio call of the officer and plaintiff’s blood found in the security office, which also contradicted plaintiffs’ three witnessed.

 

Gray-Hopkins v. Prince George’s County, Maryland, 309 F.3d 224 (4th Cir. 2002)

 

            Officers were dispatched to a parking lot following a dance.  They heard a person in the crowd state that an individual in a Cutlass had a gun.  When officers approached the vehicle, front seat passenger ran disappearing into the crowd and the back seat passenger, the plaintiff, reached out of the car and grabbed at Officer White’s gun.  White backed up with the plaintiff coming out of the car and engaging in a struggle with him during which White was heard to say, “get off, let go, let me see your hands”.  While struggling for the gun, Officer Catlett fired a shot fatally striking Gary Hopkins.

 

            Plaintiff claims that Hopkins was a peacemaker and when he was shot he was in a neutral position with his hands raised over his head.  They supplied a witness substantiating this account.

 

            Defendants argued there were no material issues of fact since a forensic examination showed that Hopkins had a laceration on his left index finger caused by the sharp edge of the site of the handgun and DNA recovered from White’s handgun belonged to Hopkins.

 

            The court found that the forensic evidence was not dispositive of the question of whether Hopkins resisted after exiting the vehicle, thereby denying the summary judgment motion based on a material issue of fact.

 

Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2003)

 

            LAPD Special Investigation Section learned that Soly and Cunningham had been involved in armed robberies.  Upon receiving tips of more criminal activity, they began a surveillance, which led to an observation of Cunningham and Soly robbing a liquor store.  After the robbery, plain clothes and SIS officers in unmarked cars surrounded and “jammed” the suspect vehicle.  Cunningham and Soly allege that the officers fired eighteen shot gun blasts and handgun shots at the car, killing Soly and leaving Cunningham paralyzed as well as wounding two fellow SIS officers.  The defendants claim that Cunningham and Soly fired first.

 

A California jury convicted Cunningham of three counts of attempted murder as well as Soly’s murder by provoking the officers into shooting at the get away car.

 

            The defendants claimed that the plaintiff’s actions should be dismissed under Heck v. Humphrey.  In Heck, the U.S. Supreme Court ruled that “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which §1983 damages are sought, the §1983 action must be dismissed”.

 

            Cunningham accused the officers of using excessive force to deliberately create a situation that provoked him into firing.  (Danger created theory).  The court found that the jury in convicting Cunningham of felony murder found that Cunningham fired at the police during the commission of the robbery and that the conviction means that the jury must have concluded that at the moment Cunningham fired on the officers, he knew or should have known that they were police officers acting within the scope of their duties making it impossible for him to prove that they used excessive force when they jammed the get away car.  The officers firing of their weapons could not constitute excessive force since there was no break between Cunningham’s proactive act of firing at the police and their response.

 

            Heck did not apply against Soly, since he was not convicted and there was no privity between him and Cunningham.  In order to establish privity, the officers must show that Soly “’had an identity or community of interest with, an adequate representation by, the losing party in the first action’ and that, ‘under the circumstances, the Soly’s ‘should reasonably have expected to be bound by the prior adjudication’.”

 

            Cunningham’s conviction did not on its face foreclose the possibility that the police also contributed to Soly’s death.

 

Vaughan v. Cox, 316 F.3d 1210 (11th Cir. 2003)

 

            In this case, the Appellate Court had earlier decided (264 F.3d 1027 (2001)) that a reasonable jury could find that the officer’s use of deadly force was unconstitutional but that the officer was entitled to qualified immunity.  The Supreme Court vacated the judgment and remanded the case in light of Hope v. Pelzer.  The court again found the officer to be entitled to qualified immunity.

 

            Officers in pursuit of a stolen pickup truck attempted to unsuccessfully box the vehicle in.  The officers claimed that at one point one of the cruisers was struck by the suspect’s vehicle and it is undisputed that during the pursuit, the suspects increased their speed and drove recklessly.  The passenger in the vehicle was shot by one of the officers who pulled up along side of the vehicle.  The court determined first, that because the officer intentionally shot at the individuals in the vehicle that there was a seizure under the Fourth Amendment.  Because it was undisputed that the suspects had committed no crime involving the infliction or threatened infliction of physical harm, the issue was whether their continued pursuit posed serious harm to the officers or others and would reasonable officers have believed that deadly force was necessary to stop the suspects and that a warning was not feasible prior to the use of such force.  The officers cited several cases where officers fired at dangerously operated motor vehicles including Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000).  The court found that the dangerousness in this case was not so clear and it was also not clear that the officers could not have given warning.  The court found that the rule announced in Garner did not apply with obvious clarity to Deputy Cox’s conduct nor did prior decisions provide fair warning that his alleged conduct violated Vaughan’s Fourth Amendment rights, therefore, entitling him to qualified immunity.  The dissenting opinion in both Appellate Court decisions cites cases from Connecticut, Minnesota and Tennessee for the proposition that officers should be on notice that the use of lethal force to restrain a suspect is unreasonable, however, all of these cases dealt with fleeing suspects on foot. 

 

Federman v. County of Kern, 61 Fed.Appx. 438 (9th Cir.2003)

 

            A SWAT team was called out to participate in an attempt to take Federman into custody for an involuntary psychiatric evaluation.  After four hours, they lured him to the window and sprayed him in the face with pepper gas.  Five officers knocked his door down, but when Federman fired two shots, the SWAT team retreated.  The officers then fired three rounds of tear gas, threw a flash bang and reentered the home.  Federman dropped his gun, drew a knife, and began walking toward the officers.  One fired four rounds of wooden less lethal munitions and three others opened fire with standard ammunition, shooting Federman eighteen times, fatally wounding him.  The plaintiff’s claim that the aggressive entry to detain Federman for a psychiatric examination for odd, relatively, non-criminal behavior, provoked him to resist and turned a relatively minor situation into a fatal shooting.  Applying the facts most favorable for the plaintiffs, one would have to find that the officers used excessive force as they alleged Federman was not a suspect and was attempting to surrender his knife when shot.  Further, he had not threatened the SWAT team until he was sprayed with pepper gas, and did not attempt to flee his home or threaten anyone, nor was there any immediate need to subdue him.  Therefore, the SWAT team entry into Federman’s home and the officers shooting at Federman, were unreasonable.

 

O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003)

 

            Responding to a domestic violence complaint at a trailer park, officers decided that O’Bert would be arrested.  When they urged him to come out of the trailer, O’Bert refused and when the officers threatened to enter O’Bert yelled, “I will blow your fucking heads off.”  Officers were told that he had only a rifle or hunting guns.

 

            Two officers entered while one of the officers outside looked through the window.  The officer outside did not see O’Bert with a weapon in his hands at any time.  The two officers who entered also did not see a weapon in his hands, but one claimed he was out of sight for 10-15 seconds and Vargo, the shooter, said he was out of sight for a minute and feared that he would grab a gun.  The shooting officer claimed that upon seeing O’Bert, his right hand was hidden and he suddenly turned with his right hand cocked at a 45 degree angle as though about to shoot. 

 

            The Court affirmed the denial of summary judgment based on the plaintiff’s version of the facts, as well as the officer who was observing through the trailer window who stated O’Bert was unarmed and the actions of the non-shooting officer who holstered his weapon and tried to grab O’Bert, an act which belies the shooting officer’s claim that he believed O’Bert could be armed.  The Court also noted discrepancy between the shooting officer’s statements made just hours after the shooting and those at a deposition a year and a half later.  Immediately after the shooting, he said that O’Bert did not swing around until the other officer attempted to grab him but later stated that he swung around first.  The significance being it would be normal for a person to swing his arms when someone is trying to grab him.

 

Stephenson v. Dingler, 332 F.3d 68 (2nd Cir. 2003)

 

Police chasing the plaintiff, who was wanted on an indictment for murder, shot him in the back partially paralyzing him.  The shooting officer said that he saw a shiny silver object.  A knife was found near the body and picked up by another officer to secure it as a crowd was gathering.  Plaintiff argued that the knife was planted and his expert said police violated procedures by not properly safeguarding the knife, testing it for fingerprints or photographing the crime scene.  The jury simultaneously decided the issues of excessive force and qualified immunity finding that the officer used excessive force but was entitl