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Connecticut Criminal Law Foundation, Inc.
Quality
Training for Those Who Protect
South Windsor,
Connecticut 860-648-0160
42 U.S.C. Section 1983 Update
Presented at the Legal Officers’ Section
by Elliot B. Spector, Esq,
International Assn. of Chiefs of Police, Inc.
2002 Annual Conference in Minneapolis
October 2002
Table of Contents
Robles v. Prince George's County, Maryland, 302 F.3d 262 (4th Cir. 2002)
Marshall v. Tske, 284 F.3d 765 (7th Cir. 2002)
Torbet v. United Airlines,
Inc., 298 F.3d 1087 (9th
Cir. 2002)
Miller v. City of Nichols
Hills Police Department, 42 Fed.Appx.
212 (10th Cir. 2002)
Clark v. City of Reno, 26 Fed.Appx. 634 (9th Cir. 2001)
Excessive Force
Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002)
Caricofe v. Mayor &
City Council of Ocean City Maryland,
32 Fed.Appx. 62 (4th Cir. 2002)
Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001)
Pace v. Catobianco, 283 F.3d 1275 (11th Cir. 2002)
Claybrook v. Birchwell, 274 F.3d 1098 (6th Cir. 2001)
Whitlow v. City of
Louisville, 39 Fed.Appx. 297 (6th
Cir. 2002)
Richmond v. Sheehan, 270 F.3d 430 (7th Cir. 2001)
Sinclair v. City of Des
Moines, 268 F.3d 594 (2001)
Headwaters Forest Defense
v. County of Humboldt, 276 F.3d 1125
(9th Cir. 2002)
Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002)
Santos v. Gates, 287 F.3d 846 (9th Cir. 2002)
Wilkey v. Argo, 43 Fed.Appx. 925 (6th Cir. 2002)
Jackson v. City of Bremerton, 268 F.3d 647 (9th Cir. 2001)
Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002)
Pasiewicz v. Lake County
Forest Preserve District, 270 F3d 520
(7th Cir. 2001)
Panfil v. City of Chicago, 2002 WL 2003724 (7th Cir. 2002)
Carter v. Baltimore
County, Maryland, 39 Fed.Appx. 930 (4th
Cir. 2002)
Moran v. Clark, 296 F.3d 638 (7th Cir. 2002)
Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002)
Fridley v. Horrighs, 291 F.3d 867 (7th Cir. 2002)
Mowbray v. Cameron County
Texas, 274 F. 3d 269 (5th
Cir. 2001)
Klein v. Long, 275 F.3d 544 (6th Cir. 2001)
Skunda v. Pennsylvania
State Police, __ F.3d __, 2002 U.S.
App. Lexis 16457 (3rd Cir. 2002)
Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)
Coons v. Casabella, 284 F.3d 437 (2nd Cir. 2002)
Brown v. Gilmore, 278 F.3d 362 (4th Cir. 2002)
Penn v. Harris, 296 F.3d 573 (7th Cir. 2002)
Holcomb v. Oliver, 2001 U.S. App. Lexis 26177, 24 Fed.Appx. 402 2001 WL
1563642 (6th Cir. 2001)
Knight v. Jacobson, 300 F.3d 1272 (11th Cir. 2002)
Williams v. Jaglowski, 269 F3d 778 (7th Cir. 2001)
Koch v. Town of
Brattleboro, 287 F.3d 162 (2nd
Cir. 2002)
Anobile v. Pelligrino, 274 F.3d 45 (2nd Cir. 2001)
Ramirez v. Butte Silver
Bow County, 298 F.3d 1022 (9th
Cir. 2002)
Jones v. Williams, 286 F.3d 1159 (9th Cir. 2002)
Young v. Harrison, 284 F.3d 863, (8th Cir. 2002)
Sparing v. Village of
Olympia Fields, 266 F.3d 684 (7th Cir. 2001)
Bybee v. City of Paducah, 22 Fed.Appx. 387 (6th Cir. 2002)
Ewolski v. City of
Brunswick, 287 F.3d 492 (6th
Cir. 2002)
McClendon v. City of
Columbia, 285 F.3d 1078 (5th
Cir. 2002)
DePalma v. Metropolitan
Government of Nashville, 40 Fed.Appx.
187 (6th Cir. 2002)
O'Brien v. Maui County, 37 Fed.Appx. 269 (9th Cir. 2001)
Sheets v. Mullins, 287 F.3d 581 (6th Cir. 2002)
Sherry Jones v. Union
County, TN, 296 F.3d 417 (6th
Cir. 2002)
Egebergh v. Nicholson, 272 F.3d 925, 2001 U.S. App. Lexis 25176 (7th Cir. 2001)
Watkins v. City of Battle
Creek, 273 F.3d 682 (6th
Cir. 2001)
Randall v. Prince George's
County, Maryland, 302 F.3d 188, 2002
U.S. App. Lexis 16467 (4th Cir. 2002)
Poole v. City of Los
Angeles, 41 Fed.Appx. 60 (9th Cir. 2002)
PETA v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002)
Morris v. Crawford County, 299 F.3d 919 (8th Cir. 2002)
Holland Ex Rel. Overdorff
v. Harrington, 268 F.3d 1179 (10th
Cir. 2001)
Ealum v. Schirard, 2002 WL 1754323, 2002 U.S. App. Lexis 15727 (10th
Cir. 2002)
Brown v. Muhlenberg
Township, 269 F.3d 205 (3rd
Cir. 2001)
Dubner v. City and County
of San Francisco, 266 F.3d 959 (9th
Cir. 2001)
Sherwood v. Oklahoma
County, 42 Fed.Appx. 353 (10th
Cir. 2002)
Dixon v. Lowery, 302 F.3d 857, 2002 U.S. App. Lexis 16538 (8th
Cir. 2002)
Kelley v. Laforce, 288 F.3d 1 (1st Cir. 2002)
Omni v. Miller, 285 F.3d 636 (8th Cir. 2002)
Friebis v. Kifer, 2002 WL 2026437, 2002 U.S. App. Lexis 18161 (6th
Cir.)
Martinez v. City of Oxnard, 270 F.3d 52 (9th Cir. 2001)
Ayuyu v. Tagabuei, 384 F.3d 1023 (9th Cir. 2002)
Pearl v. City of Long
Beach, 296 F.3d 76 (2nd Cir.
2002)
Paine v. City of Lompoc, 265 F.3d 975 (9th Cir. 2001)
Wilson v. Town of Mendon, 294 F.3d 1 (1st Cir. 2002)
Livsey v. Salt Lake County, 275 F.3d 952 (10th Cir. 2001)
Moore v. City of Harrimond, 272 F.3d 769 (6th Cir. 2001)
Robles
v. Prince George’s County, Maryland, 302 F.3d 262 (4th Cir. 2002)
At
approximately 3:30 a.m., officers responded to a noise complaint at an
apartment complex. Upon checking for
outstanding warrants, they discovered a traffic warrant for plaintiff issued by
the neighboring county. The officers
attempted an informal transfer but the dispatcher indicated that officers from
the county were too busy. The officers
drove the plaintiff to a deserted shopping center in the county and tied him to
a metal pole using three pairs of flex cuffs.
They left a note at his feet explaining the outstanding warrants. They then drove out of sight and placed a
call to the county police department reporting the situation but not
identifying themselves.
The trial court granted defendants’
motions on the federal constitutional claims but allowed the case to proceed to
trial on the state constitutional claims and state torts. The jury rendered a verdict of $647,000.00
in compensatory and punitive damages.
The court granted a motion for remittitur or, in the alternative, a new
trial, but plaintiff rejected the court’s remittitur award of $240,000.00. A second trial, which was limited to
damages, resulted in a jury award of $25,0000.00 in compensatory damages and
$15,000.00 in punitive damages.
On appeal, plaintiff claimed that the
court erred in granting summary judgment on the Fourth Amendment claim because
there was no legitimate reason to handcuff him to a pole and abandon him. Therefore, the manner of the seizure was
unreasonable. The court ruled that the
Fourth Amendment applied only to the initial decision to detain plaintiff and
not the conditions of his confinement.
By the time plaintiff was brought to the county, his arrest had been
completed and the circumstances of the arrest comported with Fourth Amendment
safeguards. His status at that time was
of a pretrial detainee who could make a claim under the Fourteenth Amendment
Due Process Clause. The court found
that plaintiff stated such a claim as the police behavior was not reasonably
related to any legitimate law enforcement purpose and the harm that he suffered
was more than de minimus. The court
found that although the officer’s actions were foolish and unorthodox, it was
not clear at the time they acted that such action violated constitutional
rights. Therefore, they were entitled
to qualified immunity. The court did
note that from this point on such “Keystone Kop” activity that degrades subjects
of detention and lacks law enforcement purpose will constitute a due process
violation.
The trial judge’s remittitur of
$240,000.00 was reasonable given the brevity of the detention, the absence of
any physical abuse and a lack of any evidence of lost wages or medical
treatment. The court also found the
trial judge’s denial of an attorney fee award reasonable, since the plaintiff
prevailed only on the state constitutional claims. Finally, the court disallowed the punitive damage award against
the municipality but affirmed the punitive damages award against the individual
officers leaving the plaintiff with $30,000.00.
Marshall
v. Tske,
284 F.3d 765 (7th Cir. 2002)
Milwaukee officers appealed a jury
verdict and judgment awarding plaintiff $30,000.00 in compensatory and
$100,000.00 in punitive damages as well as $86,375.00 in attorneys’ fees. The plaintiff, a thirteen-year-old African
American male, ran from undercover officers approaching a drug raid fearing that
he was about to be robbed or shot. He
ran from the undercover officers who were wearing maroon jackets and carrying
guns directly toward uniformed officers who did not know of the ongoing
raid. Claims of the undercover officers
that the windbreakers had the words, police narcotics and the police
emblem clearly revealing their identity was refuted by a uniformed officer who
indicated it was only after they pointed their guns at the undercover officers
did they pull down flaps to reveal their identity. After the uniformed officers handcuffed the plaintiff, the
undercover officer pulled down his pants exposing his genitals. Plaintiff’s parents explained to the
officers that their son had been home all day and was merely out trying to find
his brother, to which the undercover responded, “Don’t you understand, don’t
you f------ understand?”
Plaintiff was taken to the police
station held in a cell for four hours and was issued a citation for
obstructing. He remained in the cell
for another five hours before being driven home. The officers attempted to rely on Illinois v. Wardlow,
claiming they had probable cause to believe that plaintiff was involved in the
drug activity because he had run from the area where a drug search was about to
be conducted and they knew that young black males were used as lookouts. The court found the reliance on Wardlow
to be misplaced. First, there was
conflicting testimony as to the position plaintiff was in when he began
running. Second, Wardlow’s running was
unprovoked where the plaintiff was running like hell, not to get away from
officers, but to get to uniformed officers for protection. Third, once the search of Marshall developed
no evidence to lead to the belief that he was, in any way, involved in the drug
activity, even if the officers had reasonable suspicion, they certainly did not
have probable cause. The court upheld
the award of punitive damages as all the actions after the initial stop were
indicative of a callous disregard for Marshall’s rights, especially considering
his age and the fact that his parents were at the scene of the arrest pleading
for his return to their custody.
Torbet
v. United Airlines, Inc., 298 F.3d 1087 (9th Cir. 2002)
After Torbet’s bag passed through an
x-ray scan, he was selected for a random search. He refused, causing the security personnel to summon a police
officer who explained the random search policy. Torbet stated that he wished to leave the airport but was advised
that he was not free to leave until the bag was searched.
“Passengers placing luggage on an x-ray
machine’s conveyer belt for airplane travel, at a secured boarding area,
impliedly consent to a visual inspection and limited hand search of their
luggage if the x-ray scan is inconclusive in determining whether the luggage
contains weapons or other dangerous objects.”
The court ruled that an x-ray scan may be deemed inconclusive even when
it doesn’t affirmatively reveal anything suspicious. Consequently, any x-ray scan that doesn’t rule out every
possibility of dangerous contents is, of necessity, inconclusive. The court ruled that there was no fourth
amendment violation in searching Torbet’s bag or telling him that he could not
leave.
Miller
v. City of Nichols Hills Police Department, 42 Fed.Appx. 212 (10th
Cir. 2002)
Upon calling in an expired license tag, Officer Jennings was informed that NCIC had the tag as being from a stolen vehicle. He initiated a felony stop procedure ordering Mrs. Miller and her two daughters, just twelve and thirteen, out of the vehicle at gunpoint and down on their knees. After being patted down and placed in a cruiser, they determined that this was a mistake due to improper programming of the computer. Because the officers were entitled to rely on the reasonably trustworthy information provided to them by the dispatcher, even though the information was later determined to be faulty or inadequate, the officers had probable cause to make the warrantless arrest. The excessive use of force issue went to a jury, which found for the defendants.
Clark
v. City of Reno, 26 Fed.Appx. 634 (9th Cir. 2001)
Eleven armed officers in a K-9 Unit
responding to a report of gun fire, surrounded the apartment building and
ordered four residents out of the apartment.
After ascertaining that they were not armed, plaintiffs were handcuffed
and placed face down on the ground. The
court found that because there was no basis for believing that any particular
resident was the alleged shooter and because all were cooperative, these actions
went beyond those proper for a reasonable investigatory detention. They also found that the entries of the
apartment, and searching through cupboards and drawers looking for a weapon was
an unreasonable search. Evidence that
it is was the department’s policy to automatically arrest persons, with or
without probable cause, when responding to reports of gunfire, was sufficient
proof of an unconstitutional policy to overcome summary judgment. The failure to train officers on proper
detention in search procedures claim failed as videotape evidence concerning
training showed that officers may have acted in a manner inconsistent with
their training.
Excessive Force
Clem
v. Corbeau, 284 F.3d 543 (4th Cir. 2002)
The
court affirmed the denial of summary judgment on behalf of an officer who shot
a fifty eight year old, mentally disturbed man, who had not taken his
medication or eaten in three days, and within moments before the shooting had
been pepper sprayed twice. Officer
Corbeau contended that a reasonable officer would have had reason to believe
that Clem was armed or otherwise sufficiently dangerous to justify the use of
deadly force, however, his fellow officer never believed that Clem was armed
and while both officers spent several minutes close to Clem, neither saw bulges
in his pockets or waistline. When he
was coming toward the officer, his hands were obviously empty. The officer also claimed that Clem posed an
immediate threat of bodily harm because the pepper spray had no effect on him,
Clem was larger (2 inches and 45 lbs.) and was rapidly charging toward
him. All of the witnesses testified
that Clem who was 58 years old was blinded and gagging from the pepper spray,
and was fumbling toward the bathroom, therefore posing no serious risk of harm
to the 28 year old, discharged marine who was standing holding a 26 inch metal
baton.
The court also discussed the
discrepancies between the officer’s initial interviews with the investigators
and his report with his later contentions in support of his summary judgment
motion. It also mentioned that the
fellow officer was behind Clem in the line of fire.
Caricofe
v. Mayor & City Council of Ocean City Maryland, 32 Fed.Appx. 62 (4th
Cir. 2002)
Responding to a call from a desk
clerk at a hotel, officers found the plaintiff, a large naked man,
approximately 290 pounds and over six feet tall, jumping around and banging
himself against the walls. Officers
attempted to calm him by talking to him, but he continued to act in an
aggressive manner, banging on the walls, growling and flexing his muscles. The fourth officer that arrived brought a
violent prisoner-restraining device, which was a rope that was used to bind the
feet of violent prisoners.
When the plaintiff stumbled onto the
floor, the officers used this opportunity to try to restrain him with
handcuffs. After the officers placed
two sets of handcuffs on either hand, plaintiff threw the officers off, stood
up swinging his arms violently with the two sets of handcuffs still attached. The officers then all pepper-sprayed him,
which seemed to have no effect. After
he pinned one of the officers against the wall, they began striking him in the
buttocks and legs with their batons.
The plaintiff then ran down the
stairs into the parking lot where the officers attempted to tackle him. Other officers arrived and one ran over and
used pepper foam to no apparent effect.
They then continued to use their batons, but plaintiff ran away
again. The officers converged on the
plaintiff and used the restraining device.
Eventually he stopped moving and prior to the arrival of paramedics
stopped breathing. The cause of his
death was “multiple drug use and arterial sclerotic cardiovascular disease.”
The court concluded that the
sequence of events demonstrated a reasoned and restrained approach. The fact that plaintiff died after a
struggle was most tragic, but it could not be said that it was from any
unreasonable conduct on the part of the police.
Deorle
v. Rutherford, 272 F.3d 1272 (9th Cir. 2001)
Mrs. Deorle dialed 911 when her husband lost control
of himself and began banging on the walls and screaming. She removed herself and her children from
the home. Approximately thirteen
officers responded securing the area while awaiting the arrival of the Special
Incident Response Team. Officer
Rutherford who had been at the scene for thirty to forty minutes, set up a
position where he observed Deorle for about five to ten minutes. He observed Deorle carrying an unloaded,
plastic crossbow in one hand and a bottle of charcoal lighter fluid in the
other. Rutherford, who was armed with a
12-gauge shotgun loaded with less lethal beanbag rounds decided to shoot Deorle
when he passed a small tree approximately thirty feet away. Prior to the time of the shooting, Deorle
had followed the officer’s instructions and dropped a number of objects when
being ordered to so do.
When Rutherford shouted at him to drop the crossbow,
he discarded it. Without warning Deorle
to stop or warning him that he was going to be shot, Rutherford aimed at this
torso, striking him in the face, resulting in multiple fractures to his
cranium, loss of his left eye, and embedded lead shot in his skull.
The court determined that although Rutherford
admitted that the rounds could have lethal capabilities at thirty feet and are
potentially lethal up to fifty feet, the cloth-case shot appeared to fall short
of deadly force as defined by statute to be “that force which is reasonably
likely to cause death.”
The Court ultimately determined that Rutherford’s
use of force was unreasonable and that he would not be entitled to qualified
immunity. This is not a situation that
will provide for the type of latitude allowed by Graham, as Rutherford
was not a lone officer, suddenly confronted by a dangerous armed felon
threatening immediate violence. He also
did not attempt to evade arrest, he stayed on his own property and did not pose
an immediate safety threat, as he had responded to the officer’s instructions
and did not attack anyone.
Also, Deorle might never have passed the
predetermined spot had Rutherford given him warning or commanded him to
halt. At the time of the shooting
Rutherford was confronted by an emotionally disturbed individual who was possibly
intent on committing suicide. He was
unarmed and walking toward Rutherford at a normal gait. No officer could reasonably have believed
that under these facts, this shooting, which was reasonably likely to cause
serious physical injury, could constitute reasonable force.
Pace
v. Catobianco, 283 F.3d 1275 (11th Cir. 2002)
When Davis was pulled over for motor
vehicle violations he gave the officer a false name and social security
number. While being patted down, he ran
back to his car and started it. The
officer sprayed him with pepper spray as he drove off. Over the next fifteen minutes, five police
cars engaged in a high speed pursuit during which Davis turned in front of one
cruiser, swerved his car into an oncoming police cruiser, drove through
someone’s front yard at 50-60 mph, almost hit an elderly motorist and
accelerated toward a police car trying to block the road. When he entered a cul-de-sac, officers
blocked him on three sides, jumped out of their car and ordered him to get out
of his car. Within a matter of seconds
two deputies fired ten shots killing Davis.
The appellate court refused to
accept two of the plaintiff’s contended facts.
An eyewitness “believed that Davis was raising his hands towards the
roof in an attempt to surrender.”
Because supporting affidavits must be made on personal knowledge, the
court rejected this “belief”, no matter how sincere “a belief” is, it is not
equivalent to “knowledge”. The court
also rejected the eyewitness’s “conclusory” remark that Davis posed no threat
of serious physical harm to the officers, as his opinion did not take into
account the facts that were not within his knowledge regarding Davis’s prior
actions.
Ultimately the court found that the
officers were entitled to summary judgment, as Davis would have appeared, to a
reasonable police officer, to be gravely dangerous. First, his aggressive use of his automobile gave probable cause
to believe that he had committed a felony involving threatened infliction of
serious physical harm. Second, he never
left his automobile or turned off the engine.
He used the automobile in a manner giving reasonable police officers
probable cause to believe that it had become a deadly weapon. Although Davis had stopped seconds before
the shooting, he never turned off the car or got out of the vehicle upon being
ordered to do so, therefore a reasonable officer could believe the pursuit had
not ended.
Claybrook
v. Birchwell, 274 F.3d 1098 (6th Cir. 2001)
Three
plainclothes officers approached plaintiff who was standing holding a rifle
near a vehicle in front of a small convenience store that was used for illegal
betting. They believed that a robbery
was taking place. In fact, plaintiff
was acting as a security guard for his daughter-in-law who was about to deposit
illegal betting proceeds. Claybrook and
the officers each thinking the other(s) were robbery suspects, told each other
to drop their weapons and a gunfight ensued.
During the gunfight an officer was wounded. Claybrook attempted to reposition himself behind the officers who
claimed to have been trying to identify themselves to Claybrook. In a subsequent gun battle, Claybrook was
killed.
The appellate court divided the
events into three segments: 1) the officer’s approach and confrontation of
Claybrook; (2) the initial firefight taking place in front of the market; (3)
the shots fired after Claybrook’s move to a position behind the concrete
steps. The court found only the last
two segments in which the officers actually employed deadly force to be
material to the summary judgment analysis.
Because there was a disputed issue of fact as to which side fired the
first shot, the court found it had no jurisdiction to decide the motion for
summary judgment.
Whitlow
v. City of Louisville, 39 Fed.Appx. 297 (6th Cir. 2002)
Department used a risk assessment
matrix to determine whether the SWAT team should be called out. Although only twenty-five points was needed,
there were thirty points made in the determination to deploy the SWAT team to
arrest Whitlow who had beaten his girlfriend and held her hostage for three
days. Two points were allocated for a
search warrant, two for an arrest warrant for crimes against persons, ten for a
warrant for firearms used during the commission of a crime, ten because the
subject’s house was fortified or the subject had guard dogs and six if the
officers believe the subject is always armed.
The officers forced entry with a
ram, deployed a distractionary device and yelled at Whitlow who was holding a
gun, to drop it. Instead Whitlow raised
his arms resulting in Officer Estes shooting him with a three round burst from
his machine gun.
Plaintiff’s
claim that the officers failed to conduct an adequate investigation that should
have showed the girlfriend fabricated much of her story was irrelevant to the
use of force issue. Plaintiff’s claim
that the distractionary device prevented Whitlow from realizing the intruders
were police was also not accepted, as there was no reason to believe that this
device made him unable to hear the officers shout “police” or see that they
were police who were wearing full police gear.
The shooting officer acted legally in self-defense.
Richmond
v. Sheehan, 270 F.3d 430 (7th Cir. 2001)
The judge ordered that the plaintiff
who was in court to answer a motor vehicle violation with his mother be
restrained. Fourteen deputies allegedly
forced him to the floor, sat on him and handcuffed him resulting in his death. The court found that officers were not
entitled to absolute immunity on the excessive force claim. The court distinguished the situation where
officers’ conduct is specifically directed by the judge as opposed to the
manner in which the judge’s order is carried out.
Sinclair
v. City of Des Moines, 268 F.3d 594 (2001)
Two officers arriving at the scene
of an altercation were encountered by a young woman who told them two males who
had assaulted her had fled to the top floor of the building. The officers knocked on the apartment door
and when the door opened, they saw Adam Clark holding what they believed to be
a long barrel rifle. One of the
officers fired four times at Clark, killing him. The court upheld the summary judgment ruling in favor of the
officers finding that no constitutional or statutory right exists that would
prohibit a police officer from using deadly force when faced with an apparently
loaded weapon.
Headwaters
Forest Defense v. County of County of Humboldt, 276 F.3d 1125 (9th
Cir. 2002)
The 9th Circuit Court of
Appeals again took up this case after the Supreme Court vacated its earlier
judgment and remanded it for further consideration in light of Saucier v.
Katz. The court reaffirmed its
earlier judgment finding that the officers were not entitled to qualified
immunity.
Applying the two-part test of Saucier,
they determined first that viewing the evidence in the light most favorable to
the protestors, a rational juror could conclude that the use of pepper spray
against the protestors constituted excessive force. Then addressing the issue as to whether the right was clearly
established, the court concluded that it would be clear to a reasonable officer
that using pepper spray against the protestors was excessive under the
circumstances. Because officers had
control over the protestors, it was unnecessary to use pepper spray to bring
them under control. Further, the
authorized full spray blast was inappropriate in light of the manufacturer’s
label expressly discouraging spraying from distances of less then three
feet. Finally, it would have been clear
to any reasonable officer that the defendant’s refusal to wash out the
protestors’ eyes with water constituted excessive force under the
circumstances.
The court stated that it was not
prevented from denying defendants qualified immunity merely because no prior
case prohibited the use of the precise force at issue. Although LaLonde v. County of Riverside
was not identical, it was similar enough to put the officers on notice. In addition, regional and statewide police
practice and protocol clearly suggested the use of pepper-spray against
nonviolent protestors was excessive.
Phelps
v. Coy,
286 F.3d 295 (6th Cir. 2002)
During the booking process, a
handcuffed arrestee raised his foot on the request of the booking officer. Another officer saw this as an attempt to
kick his compatriot and tackled the arrestee.
While sitting on top of him he hit him in the face twice, grabbed his
shirt and allegedly banged his head into the floor at least three times. The appellate court affirmed the denial of
summary judgment.
The Sixth Circuit maintained its
position following the “continuing seizure rule” applying the fourth amendment
use of force test from the time of arrest to when the arrestee is released from
custody. It analyzed the events in
segments giving due deference to the officer’s on the spot decisions. In doing so, it found the relevant segment
was what happened after the officer tackled the handcuffed plaintiff and was
sitting on top of him. The court found
there was simply no governmental interest in continuing to beat Phelps after he
had been neutralized, nor could a reasonable officer think there was.
Santos
v. Gates, 287 F.3d 846 (9th Cir. 2002)
Plaintiff
claims that police officers broke his back.
Following a three-day trial, the district judge granted judgment as a
matter of law in favor of the defendants.
The appellate court reversed because the evaluation of plaintiff’s
claims depended principally on credibility determinations and drawing of factual
inferences from circumstantial evidence, both of which are functions of a
jury. Plaintiff had a long history of
psychological problems, substance abuse and brushes with the law. On the morning of the incident he described
himself as mildly intoxicated after having breakfast, including a cup and a
half of Jack Daniels. He claims that
after getting off the bus he ran from two police officers approaching him
because he had not been reporting to his parole officer. When a chain link fence blocked his way, he
sank to his knees and interlocked his hands behind his head, given prior
experience, assuming this position would prevent the officers from doing
anything to him. He said he felt pain,
and seeing a white light remembers saying, "Why did you have to break by
back, I wasn’t doing anything?"
The officers claim they responded to
a call of a man screaming and falling down on the street. When one of the officers grabbed his wrists,
he went limp and sunk to the ground.
The officer grabbed him by the arm and shoulder and guided him to the
ground. Because he began screaming,
“they are beating me up”, the officers called their supervisor. The supervisor spoke to three eyewitnesses
across the street but did not file a report as to what they told him. A hospital x-ray revealed a 10-20%
compressed fracture of the L-2 vertebrae.
Under a Graham analysis the jury may find that the officers used
excessive force. Plaintiff appeared
guilty of nothing more than public intoxication, did not pose a significant or
immediate risk to the officers who admitted he was passive, and there was no
evidence that he actively resisted.
Finally, the severity of the injury supported an inference that the
force used was substantial.
Wilkey
v. Argo,
43 Fed.Appx. 925 (6th Cir. 2002)
Plaintiff’s wife described to an
officer how her husband had been drunk the night before, fired a gun in the air
and that after she told his parents about it, she said that she had worried his
parents to death, and that “maybe someone needs to show how it feels.” Later the officers responded to the hospital
where the wife worked after being informed that the husband was there. They approached him as he was walking toward
his vehicle in the parking lot. He
stopped and consented to a pat-down, which did not reveal a gun but another
object that turned out to be a stinger flashlight. Plaintiff removed the object, displayed it and then put it back
in his pocket. The officer accused him
of carrying an asp and reached into plaintiff’s pocket. The plaintiff pushed his hand away, the
officer spun him around, pinned him to the hood by placing his forearm under
plaintiff’s chin, and told him to go home and work things out with his wife,
without further inspecting the flashlight.
“…where some degree of force is
necessary, gratuitous acts against a person who has been seized might violate
the fourth amendment’s reasonableness standard.”
The
court found that a jury could reasonably find that the officer’s actions were
neither commensurate with the threat nor consistent with the desire to
determine whether plaintiff was carrying an asp.
Jackson
v. City of Bremerton, 268 F.3d 647 (9th Cir. 2001)
A melee resulted at a public park
when officers attempted to arrest a young man on a felony warrant. His family and friends who had gathered at a
picnic, refused to obey the officer’s commands to disperse and the plaintiff
interfered with the arrest. She alleged
she was pepper-sprayed, pushed to the ground and roughly handcuffed resulting
in a fractured finger. She was then
placed in a cruiser where the officer rolled up the windows and turned up the
engine on a hot July day. The court
found that the use of force was objectively reasonable as the officers were
executing a felony warrant, were substantially outnumbered by persons who
refused to obey the officers commands to disperse and engaged in verbal and
physical altercations. Jackson’s active
interference posed an immediate threat to the officer’s personal safety.
Fairley
v. Luman, 281 F.3d 913 (9th Cir. 2002)
The court affirmed a jury award of
$11,250.00 and $92,211.00 in attorneys’ fees.
After taking the plaintiff into custody on a restraining order, officers
found two misdemeanor warrants for Gerald Fairley, plaintiff’s identical twin
brother. Although the physical
descriptions were similar, the weight differed by approximately 66 pounds and
they had different driver’s license numbers.
The plaintiff and his wife told the police that they believed the
warrants were for the twin brother and police officers had knowledge of the
twin. Still the police held the
plaintiff for twelve days without doing a fingerprint comparison or checking
with the motor vehicle department. The
court found that the failure of the City to institute readily available
procedures for decreasing the risk of erroneous detention deprived plaintiff of
his due process rights. This was
especially true in light of testimony from the chief that it was not uncommon
for individuals to be arrested on the wrong warrant, and it was particularly
acute when twins were involved.
Pasiewicz
v. Lake County Forest Preserve District, 270 F3d 520 (7th
Cir. 2001)
Two women riding horses in a forest
preserve saw a naked man standing in the middle of a trail. They reported their observations to rangers
giving similar descriptions. The next
day one of the women saw the person she believed had been in the woods sitting
in a car in a school parking lot. She
saw him again the following day and reported this to the officers who made a
warrantless arrest without inquiring as to his whereabouts on the day of the
viewing.
In his objection to the motion for
summary judgment, the plaintiff argued, at length, his innocence and airtight
alibi. The court found this to be
essentially irrelevant since when officers obtain information from an
eyewitness or a victim establishing the element of a crime, the information is
almost always sufficient to provide probable cause absent evidence that the information
or person providing it is not credible.
When probable cause has been gained from a reasonable victim or
eyewitness, there is no constitutional duty to investigate further. The court did agree with the plaintiff’s
arguments that the officers “should” have obtained a warrant, however, they did
not have to. Finally, the plaintiff
claimed that the arrest was unlawful because the officers violated state
statute by making the arrest outside their jurisdiction. The court rejected this argument finding that
a violation of a state statute is not a per se violation of the
federal constitution.
Panfil
v. City of Chicago, 2002 WL 2003724 (7th Cir. 2002)
Daniel Panfil was mistakenly
arrested on December 24th on a warrant issued for his identical
brother, Dale. Despite his repeated
protests to the arresting officer, jail personnel and a magistrate he was not
released until December 30th.
The court ruled that the Fourth Amendment is not violated by an arrest
based on probable cause even if the wrong person is arrested. Where an arrest is made on a warrant it is
constitutional when the officers have probable cause and reason to believe the
person arrested is the person sought. In
this case, the plaintiff matched every physical characteristic of the individual
named in the warrant except for slightly different first names. Because suspects often use an alias, it was
reasonable for the officer to believe that the person named in the warrant, was
in fact, the plaintiff. “If an officer
executing an arrest warrant, must do so at peril of damage liability under
Section 1983, if there is any discrepancy between the description in the
warrant and the appearance of the person to be arrested, many a criminal will
slip away while the officer anxiously compares the description in the warrant
with the appearance of the person named in it, and radios back any
discrepancies to his headquarters for instructions.”
Claims that are based on a continued
detention of individuals after they have been arrested on a valid warrant are
governed by the due process clause. The
plaintiff claimed that he was deprived of his due process because his
fingerprints were not compared with his brothers. Jailing a person for a period of time over his vigorous protests
that he is the wrong person, without investigating or bringing him before a
magistrate can raise serious constitutional questions, however, in this case,
plaintiff was brought before a magistrate and the jail personnel, with the
public defender’s office, conducted an investigation which proved his
innocence.
Carter
v. Baltimore County, Maryland, 39 Fed.Appx. 930 (4th Cir. 2002)
Plaintiff who was arrested twice and
held in custody for six and thirty-six days respectively on warrants intended
for his brother, claimed that he had previously informed a police officer that
his brother was using his name. The
court found that the district court had erred in converting a motion to dismiss
to a motion for summary judgment without giving plaintiff notice and a
reasonable opportunity for discovery.
Moran
v. Clark, 296 F.3d 638 (7th Cir. 2002)
Initial responding officers and back up officers
responding to an officer’s distress call mistakenly beat a mentally impaired
teenager who was believed to be a burglar resisting arrest. The teenager suffered severe lacerations to
the head and a broken ankle. His case
was settled for $250,000.00.
Within seventy-two hours the chief publicly
acknowledged a mistake and committed himself to punishing wrongdoers. An anonymous call resulted in an interview
with one of the officers who gave two statements. The first did not implicate Moran but the second, which did, was
recorded. The assigned IAD
investigators were never notified of this interview. Despite the fact that no statement of any other officer
implicated Moran, the chief took this statement to the circuit attorney. IAD began calling officers back for repeated
interviews. Officers’ attorneys met
with the chief who allegedly stated that he wanted the white sergeant. The chief also made it clear that officers
changing their statements would not lose their jobs based on any
inconsistencies with their first statements.
The second officer later testified that he modified his statement for
fear of losing his job, implicating Moran in striking the teenager, but also
stated the sergeant had not acted with improper excessive force.
The chief suspended Moran without pay accusing him
of assaulting the teenager by striking him with his asp and then spraying mace
in his face after the resistance ceased.
Following an indictment, the assigned circuit attorney wrote a
memorandum detailing inconsistencies in officers’ statements that demonstrated
how the evidence tended to exonerate Moran.
The prosecution proceeded with the jury acquitting Moran of all
charges.
Sergeant Moran sued the chief who
filed a Motion for Summary Judgment.
Moran overcame the summary judgment motion on his malicious prosecution
claim by introducing evidence that showed the police department publicly and
financially committed itself to producing a culprit for alleged wrongdoing
before any such wrongdoing was actually established. He produced evidence of questionable procedures, of pressures
placed on officers to incriminate a specific person or corroborate the
department’s official line and a hasty condemnation of Moran and improper
consideration of race. Finally, he
offered proof the defendants purposely ignored evidence that strongly tended to
exonerate him.
Harvey
v. Horan, 278 F.3d 370 (4th Cir. 2002)
Plaintiff, a prisoner, convicted of
rape and forcible sodomy, brought a Section 1983 case against the state
claiming a due process violation for failure to retest the biological evidence
in his case. The court upheld the
dismissal of the case because he was essentially seeking to invalidate a final
state conviction whose lawfulness had in no way been impugned. “We do not engraft an exhaustion requirement
upon Section 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted
available state remedies has no cause of action under Section 1983 unless and
until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, at 489 (1994).
Fridley
v. Horrighs, 291 F.3d 867 (7th Cir. 2002)
A
police informant trying to earn leniency for an arrest involving an automobile
theft ring, induced the plaintiff to travel from Ohio, where selling automobile
parts with detached V.I.N. numbers was legal, to Illinois, where it was
illegal. Plaintiff argued that the
police lacked probable cause because they knew or should have known about the
affirmative defense of entrapment.
Police may not ignore exculpatory facts, including knowledge of facts
amounting to an affirmative defense. In
this case, the concept of committing the offense originated with the informant
who actively encouraged the defendant to commit the crime for the purpose of
obtaining evidence for defendant’s prosecution, however, the defendant was not
able to prove that the officers knew that he was not predisposed to commit the
offense. In this case, if the officers
had closely monitored the communications between the plaintiff and their
informant, they would have known that the plaintiff was entrapped.
Mowbray
v. Cameron County Texas, 274 F. 3d 269 (5th Cir. 2001)
After serving nine years in prison
for her husband’s murder, the plaintiff was acquitted after a second
trial. Among other things, Mowbray
alleged conspiracy based on failure to disclose exculpatory evidence to her
defense counsel and manufacture of false evidence. One question was whether Brisco v. LaHue, 460 U.S. 325
(1983) extended to claims that a witness entered a pretrial conspiracy to
commit perjury. The Fifth Circuit
joined the First, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits
finding that it did, leaving only the Second in disagreement.
The
court also found no liability under Brady v. Maryland, 373 U.S. 83
(1963) in that Brady imposes a duty on prosecutors to share exculpatory
evidence with the defense, but does not extend to police officers or lab
technicians. The duty of officers is to
share exculpatory evidence with the prosecutors.
Klein
v. Long,
275 F.3d 544 (6th Cir. 2001)
Police arrested the plaintiff after
responding to a call from his wife whose finger was bleeding, and told the
officers that her husband had been pushing and grabbing her and the children
and prevented her from calling the police.
The prosecutor declined to prosecute leading to a false arrest claim by
the plaintiff alleging that the officers failed to perform a reasonable
investigation by not questioning him before the arrest.
The court had previously held in Dietrich
v. Burrows, 167 F.3d 1007 (6th Cir. 1999) that officers could be
held liable when they did not take into account KNOWN exculpatory evidence in
their assessment of probable cause.
However, if police have sufficient inculpatory evidence and they do not
know of any exculpatory evidence, the failure to make a further investigation
does not negate the probable cause.
“Law enforcement is under no obligation to give any credence to a
suspect’s story… nor should a plausible explanation in any sense require the
officer to forego arrest pending further investigation if the facts as
initially discovered provide probable cause.”
Aahlers v. Schebil, 188 F.3d 365 (6th Cir. 1999).
Skunda
v. Pennsylvania State Police, ___ F.3d ___, 2002 U.S. App. Lexis 16457 (3rd
Cir. 2002)
After
being arrested for possession of marijuana, McMillen agreed to work as a
confidential informant. He identified
Skunda as a seller and agreed to make a controlled buy. Two troopers searched McMillen, gave him
$180.00 and escorted him to defendant’s residence where they observed him enter
the residence and leave approximately seven minutes later. McMillen handed them one plastic baggie
containing an ounce of marijuana and related what the defendant was wearing and
that the marijuana was purchased in the kitchen. The state trial court, at a suppression hearing, found the
troopers’ explanations of the controlled buy vague, and that the affidavit did
not establish probable cause leading to a nolle of the charges.
In the malicious prosecution action
the appellate court analyzed the Franks correcting test.
Step One: “Plaintiff must
show that the affiant knowingly and deliberately, or with reckless disregard
for the truth, made false statements or admissions that create a falsehood in
applying for a warrant.”
Step Two: “That such
statements or omissions are material, or necessary, to the finding of probable
cause.”
Facts Removed: In his testimony, the informant mentioned
that the troopers waited at the cemetery, therefore, the fact that the troopers
saw him enter and exit the residence should be removed.[1]
Omissions
Which Should Be Added to the Affidavit:
There was another person in the home, that McMillen was a first time,
untested C/I against whom there were pending criminal charges and would have
been unable to complete subsequent buys.
The
court found that after removing the misstatements and adding the omissions,
probable cause still remained since the informant identified Skunda as the
seller of drugs and performed a controlled buy during which he was taken to the
location near Skunda’s home, searched, given money and returned minutes later
with the marijuana explaining that he bought it from Skunda.
Collateral Estoppel
did not prevent the re-litigation of the probable cause issue since there was a
lack of privity between the troopers and Skunda in the prior criminal
action.
Because the reliability of an
informant is not a sine qua none for probable cause, Illinois v. Gates,
the fact that the informant was untested and unreliable did not destroy
probable cause.
Lee
v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)
The
plaintiff was pulled over by an officer for honking her horn at a car that was
not moving at a green light. The
officer denies her claims that when approached the officer said such things as
“what the hell is wrong? Who the hell
do you think you are?” He said he was
the f------ boss and he would ask all of the questions. He called her a “black bitch” a “f------
black bitch” and said that he “should kick her black ass.” He put his nightstick to her face, as she
was sitting in the car and then pulled her out of the car by her wrist. She then claimed he shoved her against the
car, frisked and handcuffed her and after the cuffs were on, lead her to the
trunk of the car, slammed her head down and kept spreading her legs with his
foot. At the station she claims a
police official said, “These are some really lame charges”. The court denied summary judgment as to the
claims against the city that it had a pattern and practice of failing to
discipline abusive officers such as Ferraro.
On appeal Ferraro challenged the denial of summary judgment of the false
arrest and excessive use of force claims.
False Arrest: The court found that under Atwater
the arrest did not violate the Fourth Amendment. Ferraro had probable cause to believe that plaintiff had
committed a violation of the county’s noise ordinance. The fact that he did not cite the specific
noise ordinance either orally or in his arrest report was irrelevant. “When an officer makes an arrest which is
factually supported by probable cause to arrest for a certain offense, neither
his subjective reliance on an offense for which no probable cause exists nor
his verbal announcements of the wrong offense vitiates the arrest.”
Plaintiff claimed that Florida law
unlike Texas law did not permit full custodial arrest for non-criminal local
laws such as traffic ordinances.
Unfortunately, the county ordinance was determined to be a criminal law
because imprisonment could be imposed.
Plaintiff’s claim that the ordinance was unconstitutional is also
unavailing since the officer would have had no reason to believe under
controlling precedent that the ordinance supporting the arrest might later be
declared unconstitutional.
Excessive Force: The court found that Ferraro was not
entitled to qualified immunity for excessive force. Under a Graham analysis the court found the use of force to be
grossly disproportionate and that no officer could believe that it was
reasonable to slam an arrestee’s head against the trunk after she was arrested,
handcuffed and completely secured.
Citing Supreme Court and Eleventh Circuit precedent the court stated, “the
right to make an arrest necessarily carries with it the right to use some
degree of physical coercion, or threat thereof to effect it.” Indeed, a physical arrest involves some
force and injury, and the use of force is an expected, and necessary part of
law enforcement’s task of subduing and securing individuals suspected of
committing crimes. Because Graham’s
reasonableness test must embody the allowance for the fact that police officers
are often forced to make split second judgments and because government
officials are not required to err on the side of caution, qualified immunity is
appropriate in close cases where a reasonable officer could have believed that
his actions were lawful. However,
qualified immunity is not appropriate when the Graham analysis yields an answer
that is clear beyond all doubt. This is
such a case.
Coons v. Casabella, 284 F.3d 437 (2nd Cir. 2002)
Officer
was entitled to summary judgment for issuing a summons to plaintiff who was
driving while intoxicated. The court
found arguable probable cause based on plaintiff’s own admission that he had
been involved in a single car accident three hours earlier, had consumed at
least three beers and had no alcohol after the accident. The claim that the officer failed to conduct
a reasonable investigation by not speaking to medical personnel did not defeat
summary judgment since officers are not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest. The fact that plaintiff may have passed
sobriety tests three hours later in the hospital did not create an issue of
material fact given the time that had elapsed since the accident. The fact that the officer did not
specifically mention the accident in connection with the appearance ticket, but
instead indicated he made the arrest because Coon’s pupils were dilated, would
not affect the determination of probable cause.
Brown
v. Gilmore, 278 F.3d 362 (4th Cir. 2002)
Brown
was arrested for allegedly failing to move her car after a motor vehicle
accident. Gilmore, the investigating
officer, instructed Officer Pina to make the arrest which resulted in Pina
handcuffing the plaintiff and allegedly forcing her into the police cruiser.
The court found that the arrest was
lawful. The cars had been blocking
traffic on a main thoroughfare during the Memorial Day weekend, and an officer
would be expected to request the parties to move their cars before tempers
flared. Plaintiff’s claim that she did
not hear the officer’s request to move her car was unavailing since the
question was whether a reasonable officer would be justified in the belief that
a citizen heard his request. The
officer said that he spoke in a loud voice, and the other driver who was further
away heard the request. The court also
found the use of force to be objectively reasonable. The plaintiff suffered no injury of any magnitude and some of the
plaintiff’s complained of injuries resulted from the car accident. The court noted that a standard procedure
such as handcuffing would rarely constitute excessive force where the officers
were justified in making the underlying arrest. The situation also was tense and the officers could have
reasonably believed that since she had disobeyed a direct order, she would balk
at being arrested. “If courts refused
to admit the use of proportionate force in these circumstances, we would be
inviting any suspect who is unhappy about an arrest to resist that arrest in
the hopes that the officers will simply desist rather than risk liability.”
Penn
v. Harris, 296 F.3d 573 (7th Cir. 2002)
On a cold December night hundreds of
Chicago State University students were evacuated after a fire alarm
sounded. After about 45 minutes
students were agitated, and one, Penn, started pounding on the dorm’s front
door yelling profanities at campus officers.
The defendant, Harris, opened the door, allowing Penn inside. Penn claims Harris and another officer began
beating him without provocation while the officers claim Penn shoved Harris up
against the wall, resulting in his arrest for misdemeanor battery. The district attorney asked the trial court
to dismiss the charge with leave to reinstate.
Penn filed a lawsuit for malicious prosecution and excessive force,
among other things. The district court
granted summary judgment on the malicious prosecution claims and allowed the
use of force claim to go to a jury, which found the officers had used excessive
force but awarded Penn no damages.
The appellate court found that
summary judgment on the malicious prosecution claim was appropriate as there is
no constitutional right not to be prosecuted without probable cause, therefore,
it is not sufficient to merely allege malicious prosecution but instead a
plaintiff must claim a violation of a specific constitutional right such as a
right to a fair trial. This new
standard was enunciated in Newsome v. McCabe, 256 F.3d 747 (7th
Cir. 2001). The plaintiff failed to
amend his complaint to conform to this standard.
Penn also would not be able to
prevail on the state claim of malicious prosecution since it was undisputed
that he was banging on the door, yelling profanities, and therefore, there was
sufficient probable cause for an arrest for disorderly conduct. It did not matter that the arrest was
actually for battery, since this was a “closely related” charge. He also had not shown that the State’s
criminal case terminated in his favor since an accused must show that the
dismissal reflected innocence. Penn’s
claim that the jury erred in not awarding him at least nominal damages failed
since he did not object to the instruction given by the district court that
jurors, “may” award nominal damages.
Holcomb
v. Oliver, 2001 U.S. App. Lexis 26177, 24 Fed.Appx. 402 2001 WL 1563642 (6th
Cir. 2001)
Holcomb
claimed that Oliver arrested him in violation of his first amendment right when
he yelled, “F--- You, I am a Mother F------ American!” The jury verdict was upheld in favor of the
officer as the arrest was based on MORE than Holcombe’s protected use of
profanity.
Knight
v. Jacobson, 300 F.3d 1272 (11th Cir. 2002)
Plaintiff’s ex-girlfriend, who lived
next door, told Officer Jacobson that Knight had threatened to kill her and
appeared visibly upset. The officer
knocked on Knight’s door and told him to step outside where he arrested
him.
Knight claims that the arrest was
unlawful because Florida law authorizes warrantless arrests for misdemeanors
only if they are committed in the officer’s presence. The court rejected this claim finding, “while the violation of
state law may give rise to a state tort claim, it is not enough by itself to
support a claim under Section 1983.”
Knight also claimed that his arrest
violated the fourth amendment under Payton v. New York, which held that
a warrantless arrest inside the home of a suspect is presumptively unreasonable
absent exigent circumstances. The court
rejected this claim finding that Payton keeps the officer’s body outside the
threshold, not his voice. It does not
prevent a law enforcement officer from telling a suspect to step outside his
home and then arresting him without a warrant.
Williams
v. Jaglowski, 269 F3d 778 (7th Cir. 2001)
Plaintiff, a suspended Chicago
police officer, arrived at the scene of her boyfriend’s apparent suicide. When she repeatedly refused to show
identification she was arrested for obstructing. Although a person cannot be arrested for merely failing to
identify him or herself, plaintiff as a police officer, had violated a city
ordinance by refusing to perform a duty required of her. Because this was a closely related offense
to obstruction and because the Supreme Court in Atwater v. City of Largo
Vista had indicated that a custodial arrest may be made for misdemeanor violations,
the court affirmed the summary judgment for the defendants.
Koch
v. Town of Brattleboro, 287 F.3d 162 (2nd Cir. 2002)
Acting
on the State’s Attorney’s advice, officers went to Koch’s residence to either
issue him a citation or bring him to the police station. They knew the 70 year old suffered from
bi-polar disorder and was friendly with Doris Reed who answered the door, but
did not live there. Koch, who was
standing at the top of the stairs, told them to leave but they followed him to
his bedroom. When they knocked on the
door, Koch opened the door, allowing one officer to enter and then locked the
door. The second officer picked the
lock and Koch was handcuffed and transferred to the police department.
The court first found that the officer’s “initial entry” was reasonable. Although Reed did not have actual common authority over the residence, an objectively reasonable officer could have believed that she had authority to consent to the entry