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A Civil Liability Law Publication
for Law Enforcement

ISSN 0271-5481

Cite this issue as:

2002 LR Sep. (web edit.)

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Featured Cases - With Links

Attorneys' Fees: For Plaintiff
Expert Witnesses
False Arrest/Imprisonment: No Warrant (2 cases)
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (2 cases)
Governmental Liability: Policy/Custom
Off-Duty/Color of Law
Police Plaintiff: Defamation
Police Plaintiff: Fireman's Rule
Racial Discrimination
Search and Seizure: Home/Business (2 cases)

Noted in Brief -(With Some Links)

Assault and Battery: Handcuffs
Defenses: Notice of Claim
Defenses: Judicial Bias
Defenses: Qualified (Good-Faith) Immunity (2 cases)
Defenses: Sovereign Immunity
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
First Amendment (3 cases)
Governmental Liability: Policy/Custom
Malicious Prosecution
Procedural: Appeal
Procedural: Evidence
Procedural: Section 1983 in General
Search and Seizure: Home/Business (2 cases)


Cross References

Featured Cases -- With Links

Attorneys' Fees: For Plaintiff

Wife of man shot and killed by police officer who received a jury award of $111,000 subsequently reduced in $25,000 in federal civil rights lawsuit is awarded $111,836.25 in attorneys' fees and $7,109.99 in costs. She was not entitled to attorneys' fees for post-judgment motions and appeal when she did not prevail in those efforts.

     In a federal civil rights lawsuit over a police officer shooting and killing her husband, a woman was awarded $111,000 in damages by a jury, but a federal appeals court reduced the award to $25,000, concluding that she was not entitled to recover, as an element of her damages, the loss of enjoyment of life of her husband. Tinch v. City of Dayton, 77 F.3d 483 (6th Cir.), cert. denied, 519 U.S. 862 (1996).

     The trial court has now awarded her $111,836.25 in attorneys' fees and $7,109.99 in costs, rejecting portions of her request for an award of $382,239.79 in attorneys' fees and costs.

     In doing so, the trial court held:

     * that the plaintiff was not entitled to recover attorneys' fees for time spent on post-judgment motions and appeal since she did not prevail in those efforts;

     * that the plaintiff was entitled to recover $2,750 to compensate for the time incurred in preparing, briefing and supplementing the request for attorneys' fees;

     * that a reduction in 30% in the number of hours of attorneys' fees claimed was warranted because the plaintiff sought compensation for a number of "duplicative" hours and failed to explain adequately which tasks various attorneys and paralegals performed, and did not present a consistent record of time entered contemporaneously with the expenditure of the hours;

     * a reasonable hourly rate for the lead attorney was $150 per hour, since that was sufficient to encourage competent counsel to represent individuals in similar cases;

     * a reasonable hourly rate for a second chair attorney in the case was $100 per hour since his participation "was limited," and $50 per hour was a reasonable hourly fee for the paralegal utilized in the case, given rates charged in the local legal market;

     * no "multiplier" or "lodestar" was justified in the case as the attorneys' did not obtain any "exceptional" success for their clients;

     * the plaintiff could recover costs of transcripts of depositions and other depositions costs, $40 per day plus mileage as the amount authorized to be paid to witnesses under 28 U.S.C. Secs. 1821(b), and $1,000 as costs for witness fees, but she could not recover appearance fees charged by court reporters for depositions which did not occur, office supplies for her lawyer's office, or parking at a county parking garage;

     * while the plaintiff could recover $2,656.74 for making copies of materials needed in the case, this was based on a reasonable cost of $0.05 per page, and not on the "excessive" rate of $0.25 per page requested;

     * the plaintiff could not recover the sum of $6,035.41 paid to private investigators since that was not set forth as recoverable costs in 28 U.S.C. Sec. 1920;

     * the plaintiff could recover $120 for the cost of service of subpoenas pursuant to 28 C.F.R. Sec. 0.114, but not the sum of $6,275.74 spent to locate potential witnesses.

     Tinch v. City of Dayton, 199 F. Supp. 2d 758 (S.D. Ohio 2002).

    »Click here to read the decision on the AELE website.

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Expert Witnesses

Trial judge rules, in excessive force case involving off-duty officer, that expert witness could provide testimony concerning the proper police procedures to be followed and how and when an officer should decide to go from off-duty to on-duty status, but could not state a specific opinion about the specific facts of the case. The jury, the judge ruled, could determine on its own whether or not the officer kicked the plaintiff in the head.

     A motorist allegedly backed his car into that of an off-duty officer. In a federal civil rights lawsuit he subsequently filed against the city and officer, the motorist claimed that the officer then pulled him from his car, restrained him on the ground, and twice kicked him in the head. The officer denied these allegations. Prior to trial, the defendant officer asked the trial judge to bar the admissibility of certain evidence, including testimony of an expert witness.

     The motion sought to bar the testimony of an expert on proper police procedures and his giving an opinion as to whether they were followed in this case. The defendant argued that the expert had not based his opinions on scientific, technical or other specialized knowledge, but instead had simply relied on hearsay statements of occurrence witnesses, making his proposed testimony nothing more than his opinion on the credibility of these witnesses.

     The plaintiff argued, to the contrary, that the expert was qualified to give opinion testimony regarding the appropriate standard of conduct for officers to follow when off-duty concerning the use of force, and that expert testimony on accepted police practices is admissible in federal civil rights lawsuits.

     In the prior case of Clark v. Takata Corp., 192 F.3d 750 (7th Cir. 1999), the court stated, it was held that a trial court must perform a two-step analysis on the admissibility of an expert's testimony, first determining whether the expert's testimony is reliable, that is, whether it is based on a reliable methodology, and then, secondly "whether evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue." Under Federal Rule of Evidence 702, an individual may be authorized to render expert opinion testimony on an issue based upon his experience.

     The trial judge ruled that the expert witness was qualified to render an opinion on law enforcement practices, both from his practical experience and his academic background. The more difficult question, the court stated, was whether the testimony would be helpful to the jury. In this case, the court ruled, some of it would be helpful, and some of it would not.

     The plaintiff was correct, the trial judge ruled, that expert testimony on police practices and the use of force is "generally admissible in a section 1983 excessive force case," and the court believed that the expert's testimony "in this area would be helpful to the jury. Accordingly, the trial judge ruled that he would allow the expert witness to offer testimony regarding the proper procedures to be used by law enforcement officers when restraining arrestees who resist arrest, "how and when an officer should decide to go from off-duty to an on-duty officer, and the propriety" of the police department's rules of conduct. The court expressed its belief that the expert "can provide a general framework regarding proper police conduct which the jury can utilize to determine the specific facts of this case."

     But the trial judge also restricted the scope of the expert's testimony, ruling that he would not allow the expert to "offer any specific opinions regarding the specific facts of this case. The court believes that if it were to allow" the expert to offer his opinion in this case as to whether the off-duty officer followed police procedures, the court, in essence, would be allowing the expert to "make and relay credibility findings to the jury regarding the witnesses' testimony." Such testimony, the court found, "is improper and is not helpful to the jury."

     The judge found that expert testimony concerning whether the defendant officer had kicked the plaintiff in the head was not needed because the jury was capable of making that determination on its own.

     The "court does not believe that a jury needs an expert witness to tell them that it is improper--under proper police procedure or even common decency--to kick someone in the head when he is being restrained on the ground. If the jury were to find that" the officer "did this, the court is confident that it would also find this conduct to be reprehensible and would render a verdict accordingly without the necessity of hearing from an expert to tell them that this conduct was improper." The expert, therefore, "may testify as to proper police procedures, but he may not offer his opinion(s) as to whether those procedures were properly followed in this case."

     McCloughan v. City of Springfield, 208 F.R.D. 236 (C.D. Ill. 2002).

   »Click here to read the decision on the AELE website.

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False Arrest/Imprisonment: No Warrant

Officer did not violate the rights of a man attending the Timothy McVeigh trial for bombing the Oklahoma City federal building when he handcuffed him, transported him two blocks away, and questioned him, given the detainee's known criminal history, including arrests for mob action and possession of explosives, and his prior temporary commitment to a mental health facility. Officer's action was a valid investigatory stop and not an arrest requiring probable cause. Federal court clerk was entitled to absolute immunity for providing police officer with information about detainee for purposes of courtroom security.

     A man sought press credentials to attend the federal court trial of Timothy McVeigh, accused of blowing up the Oklahoma City federal building. In the course of running a background check to determine whether to issue such credentials, court officials found that the applicant had a history of arrests and convictions, including arrests for mob action, possession of explosives, and convictions for shoplifting and burglary. They also found that he had been temporarily committed to a mental health facility in Denver for psychological evaluation. Federal officials forwarded this information to the Denver Police Department, and denied the application for press credentials.

     Despite this, the man was able to view the trial on the day of the opening arguments as a member of the public, checking in with the clerk's office and listening to the trial in an overflow courtroom. When he exited the courtroom from the first floor during a lunch break, a Denver police officer asked to speak to him. He allegedly agreed to be questioned, and, in the view of the gathered media, a number of other officers handcuffed him, placed him in a patrol car, and drove him to a location two blocks from the courthouse. Once there, he was questioned, photographed, and released, with the entire encounter taking less than thirty minutes.

     The detainee then brought a civil rights lawsuit against the clerk of the federal court and the Denver police officer who asked to speak to him and questioned him. He contended that they engaged in a conspiracy to violate his constitutional rights.

     A federal appeals court upheld a determination that the court clerk, who had been delegated responsibility for coordinating courtroom security by the presiding district court judge during the high profile trial, had the same absolute immunity that would "cloak the judge" in regard to his actions taken pursuant to that function.

     The court also held that the police officers' temporary detention of the plaintiff was a valid Terry v. Ohio, 392 U.S. 1 (1968) investigatory stop rather than an arrest without probable cause. Given the officers' knowledge of the detainee's criminal history, including arrests for mob action and possession of explosives, and his prior temporary mental health commitment, they acted reasonably in questioning him, particularly as he agreed to be questioned.

     Under these circumstances, the government's "interest in maintaining security at the trial of someone accused of bombing a federal courthouse cannot be overstated," the court remarked. The detainee had been observed "acting strangely" outside the courthouse, the court added. The court found that the officers' actions in transporting the detainee away to question him were reasonable under the circumstances. Given the detainee's criminal and psychological history, the officers could reasonably be concerned for their safety, despite the fact that he had not done anything "provocative at the time of the encounter to indicate potential danger to the officers."

     The transportation two blocks away from the courthouse and away from the "glare of the media was taken to minimize the impact of the incident" on the detainee in keeping with the requirement that Terry stops be as "non-intrusive as possible."

     "Given the government's interest in providing security for the McVeigh trial, this intrusion into [the detainee's] freedom was insufficient to constitute an arrest with the attendant requirement of probable cause," and no constitutional right was violated.

     The appeals court also held, in the alternative, that even if an unreasonable seizure "had occurred here," the defendant officer would be entitled to qualified immunity since a reasonable officer in his position could have believed that detaining the plaintiff, handcuffing him briefly, and transporting him away from the courthouse was "within the ambit of acceptable police responses."

     Bell v. Manspeaker, #00-1415, 34 Fed. Appx. 637 (10th Cir. 2002).

     »Click here to read the decision on the AELE website.

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Officers did not violate motorist's Fourth Amendment rights by arresting him for obstruction of traffic and possession of a controlled substance even if they did not know what the powdery substance found in vehicle was. Officers clearly had probable cause for arrest for obstruction of traffic when motorist was found "asleep" at the wheel of his car in the street.

     Two officers encountered a man who appeared to be either asleep at the wheel or passed out at a light in his vehicle, blocking traffic. His head was down, the gear of the car was in "drive," and his foot was on the brake. The window was open and the driver did not respond to the officers' verbal attempts to wake him. One of them then reached in through the open window, shifted the gear into "park," and tried to wake the driver by shaking him. He allegedly did not wake up entirely, but kept waking up and then nodding off to sleep again.

     The officers asked the man to get out of his vehicle and escorted him to the rear of the car, where they observed that his speech was "slurred" and that they could not understand what he was saying. One of the officers observed a backpack in the passenger compartment of the vehicle. It was disputed later whether the backpack was open or closed. The officer later testified that he saw a clear "Ziplock" bag sticking out more than halfway from inside the backpack. Inside was a white powdery substance. The officers removed the backpack from the car. Further inside it, the officer discovered a brown bottle labeled in Spanish, which did not show prescription information, such as a doctor's name or a pharmacy.

     The officers handcuffed the motorist, put him in their squad car and took him to the station, where he was charged with obstruction of traffic, possession of a controlled substance, and forging or altering a prescription. He was subsequently given supervision and a fifty-dollar fine on the obstruction of traffic charge, and the other two charges were dismissed due to a negative lab result on the powdery substance.

     The motorist filed a federal civil rights lawsuit contending that the officers searched his vehicle and backpack without probable cause, a warrant or other lawful justification, and also that they arrested him without a warrant and without probable cause for possession of a controlled substance and for the forging or alteration of a prescription.

     The trial court found that the officers had probable cause to make a warrantless arrest under the circumstances. It also found that evidence relating to the driver's alleged treatment for Hodgkin's disease was not relevant to the issue of whether the officers had probable cause to arrest him at the time they did so, and was therefore to be excluded. Additionally, the issue of whether Cynomel, Cytomel, and Synthroid were controlled substances was irrelevant to the probable cause inquiry, and therefore any evidence as to whether those substances were controlled substances would be excluded.

     The court also held that as long as the officers had probable cause to believe that the driver had committed any offense, including a minor traffic offense of obstructing traffic, they were entitled to arrest him, without violating the Fourth Amendment.

     The court held that the officers' search of the driver's backpack and the passenger compartment of his vehicle were incident to a lawful arrest for obstruction of traffic and driving under the influence, and therefore was not unreasonable.

     Because the court found that the "only reasonable interpretation of the undisputed facts is that the officers had probable cause to arrest" the plaintiff, it ruled that the court "need not consider expert testimony on this issue."

     Ochana v. Flores, 199 F. Supp. 2d 817 (N.D. Ill. 2002).

     »Click here to read the decision on the AELE website.

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False Arrest/Imprisonment: Warrant

Police officer did not act in an unreasonable manner by including, in an affidavit for an arrest warrant, statements by an informant that were contradicted by some other evidence, when there was also substantial evidence corroborating the informant's statements.

     Sometime after a shooting murder in a bar, an officer alleged that a witness informed him that she had witnessed a particular man commit the murder. She had previously acted as a paid police informant in cases the officer had investigated, and, while he had not always been able to verify her testimony, he had never in the past found her to be untruthful. He presented her to the investigating officer in the murder, and she repeated her statements and also identified the suspect from photographs and stated that she had known him for approximately six months. Officers also received an anonymous tip stating that the suspect was the shooter, and the victim's mother also implicated him.

     The informant's statements, however, were in conflict with other evidence. She stated that she heard only one shot, but the victim was shot three times. She stated that she had been at the bar with a friend, but the friend denied having been there. An officer's synopsis of the informant's statement made a reference to a rear door, but the bar had only one door. Additionally, the bartender on duty that night denied having seen her or having served her, but admitted that she paid "no attention" to who was entering and exiting the bar.

     The investigating officer submitted an affidavit based on the informant's statements and a warrant for the suspect was issued, which resulted in his arrest. He was subsequently convicted of the crime, but almost nine years later, new evidence came to light that the first officer had paid the informant for her statements and for her testimony against the suspect, and a new trial was granted. The state decided not to prosecute again.

     The arrestee then sued for false arrest, contending that the affidavit for the warrant improperly relied on the informant's statements. The trial court granted judgment as a matter of law for the defendants.

     A federal appeals court upheld this result. "A police officer may be liable for civil damages for an arrest 'if no reasonable officer' would conclude that probable cause exists," the court stated. In this case, the court found, the investigating officer who submitted the affidavit for the warrant "was not reckless in applying for the arrest warrant and that a reasonable competent officer would have had probable cause" to arrest the plaintiff.

     While the statements made by the informant were "not without contradiction," other evidence which corroborated her statements "was substantial enough to support the officer's probable cause determination." Additionally, there was sufficient evidence for the trial court to have properly concluded that this officer was not aware of the informant's status as a paid informant so that the officer did not knowingly or recklessly omit information in his warrant affidavit.

     Carter v. City of Philadelphia, #00-3671, 35 Fed. Appx. 36 (3rd Cir. 2002).

     »Click here to read the decision on the internet.

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Firearms Related: Intentional Use

Officers were not entitled to summary judgment when there were disputed issues of fact including discrepancies between their stories as to what transpired after they chased a suspect into a field and then shot and killed him, allegedly believing (mistakenly) that he was armed.

     Officers responded to a radio report that a motorist involved in an accident was attempting to assault a female passenger of the other vehicle. The radio report stated that "there's a black male adult beating a female," and that he was armed with a handgun. When they arrived on the scene, the officers saw the suspect running north on a bridge, and both of them got out of their vehicle and began pursuit on foot, drawing their weapons and chasing him into an unlit field nearby.

     The suspect ignored the officers' commands to show them his hands. Instead, he allegedly stopped, turned to face them, and looking directly at one of them, uttered obscenities. The officers then fired their weapons seven times, killing the suspect, who ultimately turned out not to be armed.

     In a federal civil rights lawsuit by the decedent's estate alleging excessive force, the officers sought summary judgment on the basis of qualified immunity, which was denied by the trial court. The U.S. Supreme Court then decided Saucier v. Katz, 533 U.S. 194 (2001), and the officers again sought qualified immunity, arguing that Saucier clarified the applicability of qualified immunity to excessive force claims, and that, according to that decision, the court should determine that their actions and beliefs were reasonable under the circumstances. The officers also argued that no disputed factual issues existed any longer. The trial court again denied their motion.

     Upholding this result, a federal appeals court found that there were sufficient disputed factual issues present to preclude summary judgment for the officers. It noted that while each officer testified that the suspect turned around in a "shooting stance," their testimony was not consistent, with their statements being unclear as to whether they thought they saw the suspect take a "two-handed shooting stance," or whether he had only one hand on the gun they thought he had. There was also a discrepancy as to whether or not the suspect's arms were fully extended, and there was evidence that the suspect was shot by the officers in the palm of his hand, which the court stated was "difficult to square" with their testimony that he took a shooting stance.

     The appeals court also disagreed with the officers' characterization of the testimony of a police procedure expert as having "clarified" any or all disputed factual issues in their favor, since part of his testimony was that the officers' belief that the suspect was armed was not objectively reasonable under the circumstances, and that the use of force by the officers was "totally unwarranted."

     The appeals court also stated that the cases involving each of the two officers should be "analyzed separately, so far as the issue of qualified immunity is concerned," but cautioned that this did not mean that, in considering the position of each officer, only their own version of the events is to be looked to. Instead, the jury will hear both officers' versions of events, and "consider them as to both defendants."

     In summary, because of "internal contradictions within one of the officers' testimony, as well as some contradictions between the two officers' testimony," some physical evidence "inconsistent with the defendants' account of the incident," and the expert testimony of the police-procedure expert, the officers were found not to be entitled to summary judgment as a matter of law on the issue of qualified immunity.

     Wilson v. City of Des Moines, Iowa, #01-290681, 293 F.3d 447 (8th Cir. 2002).

     »Click here to read the decision on the internet.

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Police detective did not violate motorist's rights by shooting and killing him after he attacked the detective and had gained the upper hand in a physical fight in which he was attempting to obtain possession of the detective's gun. Federal appeals court overturns trial court's denial of summary judgment for detective, and rejects argument that detective's supposed tactical errors in the confrontation made his use of force unreasonable.

     A Boise Idaho police detective was driving home in his unmarked police car with his wife and daughter from a concert at which he served as a private security guard and they served as ushers. A motorist passed him, tires squealing and almost had a head-on collision with an approaching car. The detective turned on his blue police lights and gave chase. While he did not then know it, the pursued car had just been in a hit-and-run collision and other officers were already looking for it.

     The pursued car accelerated instead of pulling over, turning off its headlights. The detective turned on his siren and radioed his situation to the dispatcher. The pursued car then crashed into the curb. The detective got out of his vehicle, intending to render first aid and then arrest the driver for felony reckless driving. He walked toward the vehicle holding his gun in one hand and a big 16 inch metal flashlight in the other.

     The detective identified himself as an officer. The driver, who was "very drunk," did not respond to the detective's orders to place his hands on the steering wheel. To a repeated request, he asked, "If I don't, are you going to shoot me?," to which the detective answered, "If I have to."

     The motorist attempted to race away in his car, but it was "too damaged to move." The detective reached inside the car to turn off the ignition, whereupon the motorist grabbed the detective's flashlight, but the detective pulled it away from him. The detective attempted to handcuff the motorist, who then started hitting him. The motorist got out of the vehicle and "came at" the detective swinging.

     A physical altercation ensued, during which the detective hit the suspect with his flashlight, and the suspect started kicking the detective in the stomach and groin. Ultimately, the two men struggled for control of the detective's gun. At one point, while they were still struggling for control of the gun, the detective fired, hitting and killing the motorist. Only two minutes and thirty seconds had elapsed from the time when the detective reported to the dispatcher that he had begun his pursuit of the vehicle.

     The decedent's estate and survivors sued the detective, the chief of police, and the city for violation of federal civil rights and for various state law claims based on negligence. The defendant detective sought summary judgment on the basis of qualified immunity. The trial court denied the motion, relying in part on an expert witness report expressing the opinion that the detective's conduct was "tactically unreasonable and demonstrated a reckless disregard" for the risk to himself and his wife and daughter.

     The trial court also expressed the opinion that the detective had no choice but to shoot, assuming that the suspect's hand was on the gun. But it found that there was an issue of fact as to whether the detective's tactics "recklessly created the situation in which force would have to be used," by failing to drop off his wife and daughter when the routine traffic stop turned more serious, failing to await backup, failing to use his baton or spray on the suspect, the decision to contact the suspect "with both hands encumbered," and failing to release his magazine to make his gun unusable. The trial court did, however, grant summary judgment to the defendant city on a failure-to-train claim.

     A federal appeals court panel, by a 3-0 vote, has ruled that the defendant detective was entitled to summary judgment. It found that the officer was completely justified in using deadly force against the suspect after the motorist attacked him. And it ruled that, even assuming the officer's actions before that had been unwise, contained "tactical errors," or was negligent, that did not render the officer's use of deadly force unreasonable once he was attacked.

     While there were some disputes about the details of what happened, the appeals court noted that all witnesses agreed that at the time of the shooting, the motorist was continuing to resist arrest, had attacked the officer, and appeared to be gaining the upper hand in the hand-to-hand combat. The issue of whether or not the two men were grappling over the gun at the moment the officer fired was "immaterial," since the motorist held the advantage at that moment and therefore posed an immediate threat to the officer's safety.

     Under these circumstances, the appeals court commented, the detective could have reasonably shot the motorist even if he had just pushed the motorist back a few feet. The court rejected the argument, under these circumstances, that the detective "shouldn't have gotten himself into the situation, so he couldn't constitutionally shoot his way out of it."

     The appeals court found that the estate had not established that the detective provoked the motorist's attack, "much less committed an independent Fourth Amendment violation that provoked it. All of the estate's criticisms" of the detective's tactics, the court commented, fit the "20/20 vision of hindsight" category that Graham v. Connor, 490 U.S. 386 (1989) holds "must be disregarded." The court stated that even if it were to assume that the officer should have sat in his car until backup arrived, or donned all of his equipment before approaching the suspect, or have taken precautions against the motorist grabbing him by his throat and pulling himself out of the car window to attack him, or that the detective should have dropped off his wife and daughter, none of these supposed errors "could be deemed intentional or reckless, much less unconstitutional, provocations" that caused the motorist to attack him.

     In summary, the appeals court found that the detective did not violate the motorist's constitutional rights by shooting him under the circumstances.

     Billington v. Smith, #00-36062, 292 F.3d 1177 (9th Cir. 2001).

     »Click here to read the decision on the internet.

Editor's Note: The plaintiff in this case filed a petition for rehearing en banc by the entire appeals court, supported by amici that included the National Police Accountability Project (a project of the National Lawyers Guild), the Center for Constitutional Rights, and the Ella Baker Center for Human Rights. As we were going to press, we learned that the petition for rehearing has been denied.

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Governmental Liability: Policy/Custom

Sheriff's policy, far from causing an unlawful arrest of the plaintiff on charges of impersonating an officer and selling alarm systems without a license, was a "textbook example" of proper arrest procedure, with the sheriff instructing his deputy to consult with a prosecutor as to whether the elements of the offenses appeared to be present and then, if so, obtain an arrest warrant from a magistrate. Deputy was also entitled to qualified immunity, and subsequent dismissal of charges against arrestee did not alter the result.

     A sheriff's deputy obtained an arrest warrant charging an individual with selling alarm systems without a license, impersonating a law enforcement officer, and obtaining property under false pretenses, and then arrested the suspect. The affidavit for the warrant was based on a number of reports of a black male driving a black Chevy Blazer, telling or implying to elderly citizens that he was a law enforcement officer and then attempting to sell them alarm systems.

     The deputy had been told by the sheriff, after obtaining various information, to consult with the district attorneys' office, and then, if the prosecutor agreed, to present the information to a magistrate to determine if an arrest warrant should be issued. The prosecutor agreed that the facts supported probable cause, and the magistrate issued the warrant on the basis of the deputy's affidavit. The prosecutor subsequently, however, dismissed all of the charges against the arrestee, after the arrestee's lawyer agreed to counsel him on how to "operate his business within the law." The arrestee then sued the sheriff, the deputy, and the county (and its insurer) on claims of malicious prosecution and false arrest.

     The trial court rejected the defendant sheriff's Eleventh Amendment defense, ruling that, under North Carolina law, he was a local official, rather than a state official, so that the immunity afforded against states and state officials from suit in federal court did not apply.

     At the same time, the court ruled that the defendant sheriff was entitled to summary judgment, because the plaintiff had not shown that his arrest resulted from any improper official policy or custom of the sheriff's office. The only apparent policy that the sheriff's office was shown to have was that, in accordance with state and federal law, all arrests must have been preceded by a determination that probable cause existed for the arrest, which was proper. Additionally, the sheriff did not personally direct or otherwise cause the arrest or ratify it.

     All the sheriff instructed the deputy to do was to consult with the prosecutor to determine if the elements of a crime had been met, and if so, to then speak to the magistrate to see if probable cause existed to issue a warrant. "This advice, a textbook explanation of proper arrest procedure, can scarcely be construed as an exhortation to arrest plaintiff in violation of his Fourth Amendment rights," the court commented.

     The court also ruled that the individual deputy was entitled to qualified immunity, as he made the arrest pursuant to a facially valid warrant. Additionally, the court found that the evidence showed that the deputy acted reasonably in obtaining and executing the arrest warrant under the circumstances.

     "The fact that the charges against plaintiff were eventually dismissed does not imply that his arrest, pursuant to a properly-obtained warrant, was unlawful. In the well-known words of then-Justice Rehnquist, 'The Constitution does not guarantee that only the guilty will be arrested.'"

     The court declined, after disposing of the federal claims, to exercise jurisdiction to hear state law claims also asserted in the complaint.

     Gantt v. Whitaker, 203 F. Supp. 2d 503 (M.D.N.C. 2002).

     »Click here to read the decision on the AELE website.

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Off-Duty/Color of Law

Off-duty sheriff's deputies, in making a "mass purchase" of copies of a weekly community newspaper which published an article critical of the sheriff on the night before the vote on his re-election, did not act "under color of state law" for purposes of a federal civil rights lawsuit claiming violation of First, Fourth and Fourteenth Amendment rights. Sheriff's contribution of money towards the mass purchase and expression of his approval of the action was also not an act under color of state law.

     The publisher of a weekly community newspaper in Maryland had published a number of articles that were highly critical of public officials, including the local sheriff and his deputies. This included articles referring to one deputy as a "drunk," another as a "child abuser" and a "lazy" officer, and a third as a "shoeshine boy." November 3, 1998 was election day in the county and the sheriff was running for re-election, as was the State's Attorney, who had also been criticized by the paper.

     About a week before the election, some of the deputies in the sheriff's department began to construct a plan to buy up a large number of copies of the newspaper on the night before the election when the papers were scheduled to be delivered to stores and newsboxes. The sheriff, while he did not participate in the mass purchase, stated that he knew about the plan and had communicated his support for the idea.

     Off-duty deputies, wearing plain clothes and driving private vehicles made purchases at stores and newsboxes throughout the evening and into the night until 7 a.m. the next morning. The publisher contends that they purchases 1,379 newspapers. Those participating in the purchases obtained receipts from the stores for their purchases and videotaped their purchases from newsboxes. Some of them also wore stickers depicting a copy of the community newspaper going into a trash can, and handed these stickers out.

     The deputies prediction that the election day edition of the paper would run negative stories about the sheriff and states' attorney were "realized," with a large headline stating that "Fritz Guilty of Rape," referring to a 1965 guilty plea entered by the states' attorney to carnal knowledge of a minor. Another headline in the paper was entitled "Woman Supervisor Ordered Him to Have Sex, Says Cop," criticizing the sheriff's handling of an alleged sexual harassment complaint.

     The newspaper publisher filed a federal civil rights lawsuit claiming that the mass purchase of the newspaper violated its First, Fourth, and Fourteenth Amendment rights. The complaint also asserted claims for violations of the corresponding rights under the Maryland state constitution, and common law claims for tortious interference with business relations and civil conspiracy.

     The federal trial court granted summary judgment to the defendants on all federal claims and declined to exercise jurisdiction over the remaining state law claims.

     The court based its decision, as regards the off-duty deputies, on a ruling that they did not act under color of state law, as required for liability under 42 U.S.C. Sec. 1983, in making the purchases. There was no connection between the off-duty deputies' actions and their positions as state officials. The fact that their conduct may have been "related to or motivated by their state employment" did not "transform" their conduct into state action.

     The court found no evidence that store clerks were "intimidated or coerced" into selling the defendants newspapers that they otherwise would not sell, and no evidence that any of them used their authority as officers to prevent others from purchasing a copy of the newspaper. The court also found that the sheriff did not act under color of state law or as a policymaker when he expressed his approval of the deputies' plan or contributed money towards it. There was no evidence that the sheriff "directed or ordered defendants to carry out the mass purchase, nor that he had reason to believe it constituted state action." Rather, he "contributed to and supported the private pursuits of his deputies."

     The court also ruled that one on-duty deputy, sued in the complaint, had not personally participated in the mass purchase, and therefore also could not be held liable.

     Rossignol v. Voorhaar, 199 F. Supp. 2d 279 (D. Md. 2002).

     »Click here to read the decision on the AELE website.

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Police Plaintiff: Defamation

Police officers could not recover damages for defamation against television network which put African-American "testers" in an expensive car on the road in order to determine whether the officers would stop them, and then surreptitiously recorded and broadcast the resulting stop on television under the title "Driving While Black."

     New Jersey police officers stopped a Mercedes Benz car in which three young African-American males were riding, after the driver allegedly changed lanes without signaling. The officers allegedly demanded identification from the three, and ordered all three out of the vehicle when the back-seat passenger stated that he did not have any identification. The officers then frisked the men, searched the car's interior, found no contraband, and released them. The three occupants of the car, unknown to the officers, were employees of the ABC television network which had arranged for these "testers" to cruise in an expensive car to find out if the police would stop them.

     The incident was surreptitiously recorded with cameras concealed in the Mercedes and also in a van which followed the Mercedes. The incident was subsequently broadcast on a show called PrimeTime Live in a segment entitled "DWB" (Driving While Black).

     The three officers involved in the incident sued the network and a number of its employees, contending that the broadcast was defamatory and portrayed them in a false light. The complaint also contended that the portion of the recording which contained a conversation between two of the officers while they were conducting the search violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, and that the defendants "fraudulently procured the tape of the incident.

     An intermediate New Jersey appeals court upheld summary judgment for the defendants on all of the plaintiffs' claims. The court found that the officers could not recover for defamation or false light invasion of privacy, despite their contention that a statement in the broadcast that they searched the car without consent was false. The court found that the evidence showed that this statement was true, and that the evidence was "so one-sided" that no reasonable jury could have found that there was consent to search the car.

     The court further noted that a police officer is a public official under New Jersey law and that liability for defamation must therefore be based on a showing that false statements which related to their official conduct were published with actual malice, which could not be found to be present here.

     The court also held that the officers' removal of the passengers from the car during the traffic stop, as well as their actions in frisking them and searching the car were all unreasonable, as the officers had no reason to fear for their safety. The court rejected arguments that the officers had reason to fear danger because the back seat passenger expressed displeasure at being asked for identification, or because the car was cruising in a "high drug" area on another occasion, or because the driver's insurance card had expired. Further, there was no indication that any allegedly "suspicious" items in the car contained contraband.

     Additionally, the court found that the officers were not justified in demanding identification from the passengers to begin with since they did not then suspect them of any crime, and had no reason to believe that they were armed, dangerous, or involved in any criminal activities.

     The court also rejected the argument that interception of the recorded conversation between the officers while they searched the car, outside the presence of the car's occupants, in which an officer stated that there was "probably dope" in the vehicle in a locked cosmetic case located there, was a protected "oral communication" under the state's wiretapping law. The officers had no reasonable expectation of privacy, the court found, when they engaged in the conversation, since the location of the conversation was "more akin" to an open, accessible place than an enclosed indoor room. The search of the car occurred on the shoulder of a busy public highway, the four doors of the car were wide open during the search, and the officers were "public servants performing their police function in public view."

     Finally, the court held that the First Amendment to the U.S. Constitution barred recovery on the police officers' "fraud" claim against the television network and other defendants.

     Hornberger v. American Broadcasting Companies, Inc., 799 A.2d 566 (N.J. Super. A.D. 2002).

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Police Plaintiff: Fireman's Rule

City could sue transit district in California to recover benefits paid to officer injured on the job when a railroad crossing arm broke and struck him on the head, and officer could pursue personal injury claims as well. Firefighter's rule did not bar recovery when statutory "independent cause" exception to the rule applied. Negligence which allegedly caused the officer's injury was not the same as the one that prompted the officer's presence at the scene in the first place.

     A California police officer was dispatched to a railroad crossing in downtown San Diego because the crossing-gate arms at the railroad tracks were stuck in the "down" position and traffic was backing up. While he was directing traffic, another officer manually lifted the crossing-gate arm across the street from where he was standing, and the arm on his side also responded to this manual movement, with all the crossing-gate arms moving into a vertical position.

     Seeing that traffic could now flow normally again, the officer turned his back to the crossing and began to return to his vehicle. At that point, the crossing-gate arm nearest him broke and fell, falling sideways and striking him on the head. It subsequently appeared that two bolts connecting the crossing-gate arm to the lifting mechanism had broken, causing it to fall sideways rather than straight down. "The bolts found near the collapsed arm appeared to be unrelated to the electrical unit that raised and lowered the arm."

     The officer sued the transit district and several other entities to recover damages for personal injury. The city, which covered the officer's workers' compensation claim, intervened in the case to recover benefits paid to the injured officer. The trial court granted summary judgment in favor of the Defendants on the ground that the "firefighter's rule" precluded the recovery of damages.

     That doctrine generally bars firefighters and police officers from suing those whose negligence caused or contributed to a fire or dangerous condition that, in turn caused the firefighter's or officer's injury or death.

     A federal appeals court applying California state law held that the firefighter's rule did not preclude the officer and city from bringing the lawsuit, because an "independent cause" exception to the rule, provided by a California state statute, Cal. Civ. Code Sec. 1714.9(e), may apply. Under that exception, the firefighter's rule does not shield a defendant from acts of misconduct which are "independent" from those which required the officer to be summoned to the scene. The rule does not apply when the alleged act of negligence that caused the injury is not the same act as the one which prompted the officer's presence at the scene in the first place.

     The court also held that this exception to the rule could be applied in the case even though the officer's injuries occurred before the enactment of the statute in question, since the statute was intended only to "clarify existing law" and did not change or modify the law in existence at the time of the incident.

     In this case, the appeals court ruled, there was a genuine issue of material fact as to whether the collapse of the railroad crossing-gate arm which hit the officer was unrelated to the faulty lifting mechanism that caused the arm to become stuck in the first place, which was the reason for the officer being summoned to direct traffic at the scene.

     The court also found that the city had a right, under California law, to pursue its claim for recovery of amounts paid to the officer for his workers' compensation claim, even though it was the city employees' retirement system and not the city which paid the benefits to the officer. As a result of the benefits paid to the officer, the city was required to pay more into the disability retirement system than it otherwise would have had the officer retired under an ordinary service retirement pension.

     Vasquez v. North County Transit District, #01-55326, 01-55415, 292 F.3d 1049 (9th Cir. 2002)

     »Click here to read the decision on the internet.

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Racial Discrimination

Employee fired from her job after police detective allegedly falsely told her employer that she had been identified as using a credit card from a co-employee's stolen wallet did not present any evidence that the detective was motivated by racial animosity towards her as an African-American. Detective was also not liable, in any way, for her firing, which was the independent decision of her employer and did not involve governmental action.

     The plaintiff, an African-American female, worked for a private employer in an office job. The office manager discovered that her wallet was missing and her credit card was subsequently used to make fraudulent purchases from a number of stores at a nearby shopping mall. The office manager had discussions with store employees at two stores, describing the purchasers as "two African-American women," with one wearing a headband. These descriptions, along with the plaintiff's demeanor, allegedly made the office manager suspect the plaintiff of having taken her wallet, and she communicated this to management personnel.

     A police detective subsequently took a statement from the office manager and asked for photos of the plaintiff and another black female employee whom the police also suspected of being involved in the theft. Copies of the two women's drivers license pictures were supplied to the detective from their employment files. He took these photos to the stores, where one of the employees said that he "could not be sure," but that the photos looked "similar" to the suspects, and where another employee stated that he could make no identification since he had not been on duty at the time of the purchases.

     The detective subsequently interviewed several employees at the office, including the plaintiff, telling her in particular that there were videotapes and identifications of her and that she had the "opportunity to turn herself in." She allegedly said "If you have so much evidence, why don't you arrest me now?" and a loud confrontation allegedly took place. According to the plaintiff, despite the fact that the detective "apparently realized that he had no useful identification," he told a manager at her company that mall employees had identified her as the person who used the credit card. The manager decided to suspend, and then terminate, the plaintiff.

     No charges were ever brought against the plaintiff, and she sued the detective and the city under 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985(3), claiming that he violated her Fourth Amendment rights against unreasonable search and seizure, her Fourteenth Amendment due process rights, and engaged in a conspiracy to violate her civil rights and racially discriminate against her.

     Granting summary judgment for the defendant detective and city, the federal trial court found that the plaintiff's Fourth Amendment rights were not violated during the detective's investigation into the theft. The court noted that the detective's actions did not involve either an arrest of the plaintiff or a search of her or her belongings.

     The court also found no violation of due process, even if the detective's use of only the two photographs to display to store employees was an "unduly suggestive photo lineup," since no suspect was ever positively identified by any store employee or arrested on any charge. Additionally, the court noted that the plaintiff did not have a property interest in her continued employment that was protected by the due process clause of the Fourteenth Amendment, since she was an employee "at will" who, under New Jersey state law, could be fired at any time for any reason or for no reason at all. Accordingly, she had no reasonable expectation of continued employment that could have been violated by the detective's actions.

     Further, the firing did not involve governmental action in any way, even if it was based in part on information provided by the detective to her employer, since he did not coerce or encourage her employer to fire her, and the employer made its own independent decision to fire her on suspicion of dishonesty and did not base its decision on the statement of the detective alone.

     Rejecting the plaintiff's claim of conspiracy to violate her civil rights, the court noted that to make a claim under 42 U.S.C. Sec. 1985(3) an aggrieved party must show that two or more persons conspired to deprive the plaintiff of the equal protection of the law, that one of them performed an overt act in the furtherance of the conspiracy, and that the overt act injures the plaintiff in their person or property.

     In this case, the court found, there was no evidence of any "collaboration" between the detective and employer, so no "conspiracy" could be proven.

     Additionally, there was no evidence of "racial animosity" as a motive in the detective's actions. "As long as a person is not targeted purely because of his race (i.e., if plaintiff were targeted absent any description or other evidence), it is permissible for law enforcement to consider race as one of a suspect's identifying characteristics."

     Freeman v. City of Hackensack, 200 F. Supp. 2d 458 (D.N.J. 2002).

     »Click here to read the decision on the AELE website.

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Search and Seizure: Home/Business

Officer did not act improperly in obtaining a search warrant for a residence, based on informant's identification of a resident as being involved in a counterfeiting operation, despite the fact that the informant's identification subsequently turned out to be mistaken. Other officers participating in the search reasonably relied on the facial validity of the search warrant.

     As part of a counterfeit investigation, eleven city police officers, a county police officer, and a Secret Service special agent executed a search warrant on a residence. The warrant also authorized a search of one of the persons who lived there. Two residents of the home sued claiming that the search violated their Fourth Amendment rights, and one of them also claimed that he was wrongfully arrested following the search, on charges of driving without a valid license. No evidence related to an ongoing criminal enterprise were found. "In retrospect," a federal court later commented, "it is clear that the warrant" was based upon "a misidentification by a cooperating witness."

     Despite this, the court ruled that the defendant officers were entitled to summary judgment. The officer who obtained the warrant had probable cause to search the residence of the person who his informant had identified as being a suspected counterfeiter. Although the informant was incorrect in identifying the resident, the officer had a reasonable belief in the truth of the identification. The resident's physical characteristics listed in police records matched the informant's description (even if his actual characteristics were somewhat different), and the informant picked the resident's photograph from six pictures presented, even if with some initial hesitation. Further, the person the informant identified lived at the same location the informant had previously identified as the site of the counterfeiting activity.

     The fact that the officer had no information that the resident had ever gone by the suspected counterfeiter's name did not eliminate the existence of probable cause, given the other information known to the officer.

     As for other officers who participated in the search, they had no reason at all to question the warrant which had been signed by a judge, and they proceeded on the reasonable belief that the warrant was valid and that the search was necessary.

     The court also rejected the argument that the officers acted improperly in handcuffing the resident during the search of his home after finding his expired drivers license. The officers had information that his previous arrest had been for carrying a concealed deadly weapon, and the officers had found such a weapon during their search, so they had a valid reason to be concerned for their own safety during the search. The officers determined that his license was expired and that he had been driving an automobile. As for the reasonableness of this arrest, the court noted that the arrestee ultimately pled guilty to the charges against him concerning driving without a license.

     Ferguson v. City of Louisville, 199 F. Supp. 2d 625 (W.D.Ky. 2002).

   »Click here to read the decision on the AELE website.

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City could not be held liable for shooting and killing of apartment occupant following allegedly unconstitutional warrantless entry. Evidence of eleven prior incidents of warrantless searches of residences by a gang task force was insufficient to establish the existence of a municipal custom of warrantless searches of residences in violation of the Fourth Amendment. Appeals court also rejects claim for liability based on inadequate training theory.

     Houston, Texas police officers who were members of a gang task force were patrolling when they stopped a car for a traffic violation. This led to the arrest of the driver, who volunteered to give information about his drug supplier in exchange for lenient treatment. These two officers, and other members of the task force, had the driver knock on the door of the alleged drug supplier's apartment. They did not obtain a warrant. When the door opened, the driver dropped to the ground, and the officers rushed into the residence.

     There were several people in the apartment, and in the commotion one of the officers apparently shot another in the back, followed by a "fusillade from the officers" killing one of the residents of the apartment. A gun was subsequently found near the body of the decedent, although it was disputed who owned it.

     The decedent's family members filed a federal civil rights lawsuit against the city, and the federal trial court granted the city's motion for summary judgment.

     A federal appeals court upheld this result as to all federal claims against the city, and held that the trial court should not have exercised jurisdiction over remaining state law claims.

     The appeals court noted that a city cannot be held liable under federal civil rights law simply for being the employer of the officer, as there is no vicarious liability under 42 U.S.C. Sec. 1983.

     The court also rejected the argument that evidence presented of eleven prior incidents of warrantless searches of residences by gang task force members was sufficient to establish the existence of an unwritten municipal custom of warrantless searches of residences in violation of the Fourth Amendment. This number of incidents "cannot support a pattern of illegality in one of the Nation's largest cities and police forces," the appeals court stated. "The extrapolation fails both because the inference of illegality is truly uncompelling--giving presumptive weight as it does to the absence of warrant--and because the sample of alleged unconstitutional events is just too small."

     Going further, the appeals court stated that even if the eleven incidents alleged were enough to show a pattern of unconstitutional searches, this would still not establish municipal liability in the absence of any evidence of actual or constructive knowledge of this by a policy-making official. "Opinion evidence" that offense reports and the number of warrantless searches "sent a clear signal" to supervisors and policymakers that a pattern of unconstitutional behavior existed was "not sufficient" the court commented.

     The appeals court also found that there was insufficient evidence that the police officers who conducted the complained of search were "inadequately trained" in the Fourth Amendment's warrant requirement and as to when a warrantless search could be conducted. Additionally, even if there had been some shortcomings in the officers' training regarding warrantless searches of residences, in the absence of any evidence of a "causal relationship" between such shortcomings and the shooting, there could be no municipal liability.

     Pineda v. City of Houston, #01-20189, 291 F.3d 325 (5th Cir. 2002).

   »Click here to read the decision on the internet.

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Noted in Brief

Assault and Battery: Handcuffs

     A genuine issue of material fact existed as to whether officers should have known, objectively, that they were putting the handcuffs on a detained person so tightly that they would cut into her skin and cause permanent damage, but officers' subsequent use of force to push detainee to her knees and place her in restraints at a hospital where she was involuntarily admitted was not excessive. Threlkeld v. White Castle Systems, Inc., 201 F. Supp. 2d 834 (N.D. Ill. 2002).

Defenses: Notice of Claim

     Arrestee's letter to county attorney's office stating his intention to sue the county police department for injuries incurred during his arrest was insufficient to satisfy the notice requirements of Maryland's Local Government Tort Claims Act, Md. Code. Courts and Judicial Proceedings, Sec. 5-304(a) when the letter indicated that the arrest was made by town police officers and did not state what action, if any, was taken by county police officers. Lanford v. Prince George's County, Md., 199 F. Supp. 2d 297 (D. Md. 2002).

Defenses: Judicial Bias

     Trial judge did not abuse its discretion in denying plaintiff arrestee's motion that he recuse himself. Plaintiff only made the allegation of judicial bias "well after judgment" against him in his federal civil rights lawsuit against arresting officers, and only asserted his claim of bias in a "conclusory manner" without stating any facts that would convince a reasonable person that personal or extrajudicial bias existed. Wilson v. Holt, #01-5298, 35 Fed. Appx. 189 (6th Cir. 2002).

Defenses: Qualified (Good-Faith) Immunity

     A reasonable police officer would have known that shooting a motorist in the back during a routine traffic stop when he posed no immediate threat to the officer and was not attempting to flee was an excessive use of force, precluding qualified immunity. Appeals court had no jurisdiction to review the trial court's determination, in denying qualified immunity to officer, that there were factual issues as to whether the officer shot the motorist in the back. Lewis v. Boucher, #01-1584, 35 Fed. Appx. 64 (4th Cir. 2002).

     Officers who made a warrantless entry into the plaintiff's home in February of 1999 to make a "welfare check" were entitled to qualified immunity in the homeowner's federal civil rights lawsuit when the law in the federal appeals circuit on that date on the police officers' community caretaking function to respond to emergency situations was not clearly established on date, but was instead subsequently decided in United States v. Cervantes, 219 F.3d 882 (9th Cir. 2000), cert. denied, 532 U.S. 9122 (2001). Humphrey v. Lane County, #00-36036, 35 Fed. Appx. 538 (9th Cir. 2002).

Defenses: Sovereign Immunity

     The U.S. government has not waived sovereign immunity for a Fourth Amendment lawsuit against the U.S. Marshal Service and the Marshal in his official capacity. Curtis v. Pracht, 202 F. Supp. 2d 406 (D. Md. 2002).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to make an arrest for disturbing the peace when the arrestee had interfered with a traffic investigation, ignored instructions to return to a house, and used profanity in a loud voice. Arrestee's subsequent acquittal did not alter the result. Merritt v. City of Oakdale, No. 01-1533, 817 So. 2d 487 (La. App. 3d Cir. 2002).

False Arrest/Imprisonment: Warrant

     Officers did not violate the Fourth Amendment when they took the arrestee into custody under a facially valid warrant, ignoring his protests that he had already served a sentence for the probation violation for which the warrant was issued. Peacock v. Mayor and City Council of Baltimore, 199 F. Supp. 2d 306 (D. Md. 2002).

First Amendment

     Ordinance barring "religious or political activities" in municipal amphitheater violated the First Amendment and a preliminary injunction against its enforcement would be issued. Firecross Ministries v. Municipality of Ponce, 204 F. Supp. 2d 244 (D. Puerto Rico 2002).

     Village ordinance, which made it a misdemeanor to engage in door-to-door "canvassing" without first obtaining a permit and registering with the mayor's office, violated the First Amendment in preventing religious "witnessing" and anonymous political speech. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, #00-1737, 122 S. Ct. 2080 (2002).

     Police department study concluding that concentrations of "adult" entertainment establishments are associated with higher crime rates in surrounding communities was reasonably relied on by city in enacting ordinance prohibiting such enterprises within 1,000 feet of each other or within 500 feet of a religious institution, school, or public park. City of Los Angeles v. Alameda Books, Inc., #00-799, 122 S. Ct. 1728 (2002).

Governmental Liability: Policy/Custom

     Plaintiff's claim that officer struck him with a police car, beat him with a night stick while he was handcuffed, and smacked his face on the side of the car while placing him in it, even if true, did not state a claim for federal civil rights liability against the city when there was no allegation of a governmental policy or custom which caused the alleged harm. The plaintiff's claim was also time-barred under Kentucky's one-year statute of limitations, since that statute began to run on the date of the arrest, and he filed his lawsuit more than one year later. Watson v. Baxter, #01-5971, 35 Fed. Appx. 118 (6th Cir. 2002).

Malicious Prosecution

     Reversal of criminal convictions for larcency and unlawful practice of law on the basis that the Attorney General did not have the authority to prosecute the accused under the state law was not a "favorable termination" for the accused for purposes of a malicious prosecution lawsuit when there was probable cause for the criminal prosecution and the accused was indicted by a grand jury. Romero v. State of New York, 742 N.Y.S.2d 701 (A.D. 2002).

Procedural: Appeal

     Members of a class who are not named class representatives may still appeal settlements of federal class action lawsuits. Devlin v. Scardelletti, #01-417, 122 S. Ct. 2005 (2002).

Procedural: Evidence

    Jury was presumed to have followed trial judge's instructions that lawyers' statements and arguments were not evidence, so that alleged misconduct by defendant police officers' lawyer in giving inference to the jury about items not in evidence during closing arguments was insufficient to support a reversal of the jury's verdict for the defendants in a homeowner's federal civil rights lawsuit over alleged unreasonable search of her house under a warrant. Jones v. Williams, #00-56929, 35 Fed. Appx. 424 (9th Cir. 2002). (.pdf format).

Procedural: Section 1983 in General

     Indigent plaintiff had no constitutional or statutory right to effective assistance of counsel in his Section 1983 excessive force lawsuit, so that any error the trial judge made in failing to appoint a substitute lawyer was harmless and jury's award for defendants upheld on appeal. Plaintiff's only available remedy for alleged ineffective assistance of counsel would be a lawsuit for legal malpractice. Taylor v. Dickel, #01-2102, 293 F.3d 427 (8th Cir. 2002). (.pdf format).

Search and Seizure: Home/Business

     Police officers acted in a reasonable manner for purposes of qualified immunity in reading warrants of attachment for contempt as allowing them to enter his motel room when they stated that they could be served in the daytime in a public place when it was not clear under prior Idaho law whether the restrictions were to be read "conjunctively or disjunctively." Plaintiff was also barred under the doctrine of collateral estoppel from relitigating the issue of whether the officers complied with the "knock and announce" rule when it was determined at criminal trial suppression hearing that they had. Hall v. Tudbury, #00-35831, 35 Fed. Appx. 428 (9th Cir. 2002).

     Disputed issues of material fact existed as to whether the mother of a resident's child consented to police detectives opening and damaging a locked safe in his home and whether a reasonable officer would have considered her authorized to do so, precluding qualified immunity for the detectives in the resident's federal civil rights lawsuit for the alleged unlawful search of his house and locked safe. Smith v. Heimer, #02-1042, 35 Fed. Appx. 293 (8th Cir. 2002). (.pdf format).


Article: "Blunt and penetrating injuries caused by rubber bullets during the Israeli-Arab conflict in October, 2000: a retrospective study," The Lancet, 25 May 2002. The article is online, but free registration is required at http://www.thelancet.com/ -- then access the article at: http://pdf.thelancet.com/pdfdownload?uid=llan.359.9320.original

Book: "The abuse of police authority: a national study of police officers' attitudes," by David Weisburd, Rosann Greenspan, Edwin E. Hamilton, Kellie A. Bryant and Hubert Williams. $24.95 (2001, 197 pages, 41 tables/figures) ISBN 1-884614-17-5. The Police Foundation, http://www.policefoundation.org/

Cross References

Featured Cases:

Assault and Battery: Physical -- See also Expert Witnesses
Defenses: Absolute Immunity -- See also False Arrest/Imprisonment: No Warrant
Defenses: Qualified Immunity -- See also Firearms Related -- Intentional Use (1st case)
False Arrest/Imprisonment: Warrant -- See also Governmental Liability: Policy/Custom
Firearms Related: Intentional Use -- See also Attorneys' Fees: For Plaintiff
First Amendment -- See also Off-Duty/Color of Law
Governmental Liability: Policy/Custom -- See also Search and Seizure: Home/Business (2nd case)
Racial Discrimination -- See also Police Plaintiff: Defamation

Noted in Brief Cases:

Defenses: Collateral Estoppel -- See also Search and Seizure: Home/Business (1st case)
Defenses: Qualified Immunity -- See also Search and Seizure: Home/Business (both cases)
Defenses: Statute of Limitations -- See also Governmental Liability: Policy/Custom
Firearms Related: Intentional Use -- See also Defenses: Qualified Immunity (1st case)
Search and Seizure: Home/Business -- See also Defenses: Qualified Immunity (2nd case)
Search and Seizure: Home/Business -- See also Procedural: Evidence

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