CONTENTS

City could not be held responsible for arrestee's injuries from officer's alleged excessive use of force while arresting and handcuffing motorist when officer's actions, if they occurred, would have clearly violated the city's policies and training that officers received regarding the use of force. The possibility that the officer was not taught a particular procedure for taking a handcuffed suspect to the ground did not alter the result, particularly when there was no evidence of other similar incidents.

     A motorist was stopped by a Kansas police officer on suspicion of driving under the influence of alcohol. During the vehicle stop, the officer was joined by several other officers. After administering a field sobriety eye test, the officer placed the motorist under arrest and handcuffed her, placing her in the back of a police vehicle. The motorist claimed that she told the officer several times that the handcuffs were too tight and that her fingers were going numb, and that he then opened the door and started pulling on her arm, and that as she tried to get out of the car, her feet came untangled and the officer yelled that she had kicked him.

     She claimed that two officers then grabbed her and shoved her down or forced her down face-first onto the street. She contended that this was done intentionally, and that the officers did not simply slip and drop her accidentally. In her lawsuit against the officers and city for excessive use of force, she claimed that two of the officers then held her face down in the ground while a third officer approached and started to kick her in the back.

     The officers asserted that the plaintiff began kicking one of them and that they took her out of the car so that she would not injure herself or damage the vehicle. When one officer went to assist the other, he was himself kicked, and when the officers got the arrestee out of the vehicle, they began losing control of her, and took her to the ground to regain control, as she continued to resist their orders to comply. The defendants denied kicking or hitting the plaintiff.

     The trial court granted motions by the city and a former police chief granting them summary judgment on an inadequate training claim. The court noted that the city provided training and had a policy on the lawful use of force. The police department complied with requirements of the Kansas Law Enforcement Training Act, Kan. Stat. Ann. Sec. 74-5601 et seq. (click here to search for text) requiring that every full-time law enforcement officer complete a course of not less than 320 hours of accredited instruction at a certified law enforcement training school, and, in fact, the defendant officers involved in the case had both successfully completed 848 hours of such training.

     The training provided included both extensive instruction on the federal and state laws restricting the use of force to that which is reasonable under the circumstances and extensive classroom and hands-on practical training regarding the difference between reasonable and excessive force. In some of the classes, the officers were "taught the use of force continuum, which helps an officer determine the level of force permitted to establish control over a resistive suspect." And, the court noted, extensive training was provided on how to properly handcuff the suspect.

     Following the officers' graduation from the training academy, they also received an additional 14 weeks of field training with a field training officer.

     The court acknowledged that one of the officers testified that he was not taught a particular procedure for taking down a resistive suspect who was handcuffed, but that take-downs, in general, were part of his continuum of force training. Another defendant officer also testified that he had been taught procedures for taking resistive suspects to the ground when they were not handcuffed at all or when they had on only one handcuff, but that he was not aware of any procedure specifically designed to take a resistive suspect down who had both cuffs on.

     The captain in charge of the police department's training division, however, testified that officers are taught that they can take a handcuffed suspect who is in the back of a car kicking to the ground by simply keeping hold of the suspect by the arms and lowering the suspect down to the ground.

     Based on this record, the trial court found that the plaintiff had failed to show that any alleged violation of her rights was caused by a policy of inadequate training or that the city acted with deliberate indifference to known risks of harm in its training policies.

     First, if the officers "intentionally shoved or forced" the plaintiff face first onto the ground without provocation, as she claimed, they did not do so as a result of inadequate training by the city, as any such conduct would have been in "clear violation" of the city's policies and the training the officers received regarding the use of force.

     Second, the evidence showed that the city provided training to its officers "over and above what is required by state law," and there was no evidence that its training program "was inadequate as compared to any recognized or accepted law enforcement standards."

     The court also concluded that the possibility that the officers were not taught a particular procedure for taking a handcuffed suspect to the ground "does not constitute a glaring omission" in the city's training program, "such that a reasonable juror could infer deliberate indifference." The harm that the plaintiff complained of, the alleged "intentional slamming" of her face first onto the street without justification, was not a "highly predictable consequence of the city's lack of training on taking a handcuffed suspect to the ground."

     Further, the plaintiff did not offer any expert testimony about the proper technique for taking down a handcuffed suspect, what the appropriate training should consist of, and whether such training is provided at other law enforcement academies. She based her claim of inadequate training on a "single instance of excessive force," rather than showing any prior instances. The court concluded that her failure to provide any expert testimony "renders summary judgment appropriate on this issue."

     Nelson v. City of Wichita, 217 F. Supp. 2d 1179 (D. Kan. 2002).

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Officers did not have qualified immunity from liability for allegedly evicting the residents of a women's shelter without a pre-deprivation process, since Kentucky state law protecting against evictions without pre-eviction notice and court proceedings were well established as were relevant U.S. Supreme Court opinions.

     Three residents of a women's shelter run by a religious organization paid a monthly fee of $140 to live there, and each had their own bedroom, sharing the rest of the house in common, and having possession of keys and full rights of entry. When a dispute arose between the residents and the director of the house regarding their alleged violations of the house rules, the director, who did not live on the premises, decided to evict them. The residents received legal advice that they were tenants under Kentucky law and could not be evicted without prior court proceedings, and they allegedly informed the director of this.

     Shortly thereafter, an employee of the facility called the police regarding a dispute with the residents, and asked an officer who arrived to remove the three residents from the house. No court order had been obtained authorizing an eviction, and that officer declined to carry one out. The following morning, the house director called the police again, and this time, officers responding to the call entered the residents' rooms and told them that they would have to leave the premises immediately because of the director's complaints about their possession of alcohol and illegal drugs on the premises.

     The officers allegedly ignored the residents' arguments that they paid rent and were tenants, and their letters from attorneys containing opinions to the effect that they could not be evicted without court proceedings. One of the officers allegedly laughed at one of the residents, telling her that she was "homeless" and "did not have a lawyer." The residents allegedly were not able to retrieve all of their belongings prior to the eviction. The officers did not subsequently claim that an emergency or exigent circumstances existed at the time to justify the eviction.

     The residents filed a federal civil rights lawsuit for violation of their right to be free from unreasonable seizures and their right not to be deprived of possessory interests in property without due process. The defendant officers sought qualified immunity, which was denied by the trial court.

     A federal appeals court ruled that the plaintiffs were tenants who had a due process right to pre-deprivation process prior to eviction, even if their were post-deprivation remedies available under state law, in the absence of any showing of exigent circumstances making pre-deprivation process impractical.

     The officers did not have any entitlement to qualified immunity on Fourteenth Amendment claims for carrying out the eviction in the absence of a court order, the appeals court ruled, finding that the Kentucky state laws forbidding "self-help" evictions without judicial process and providing for preeviction notice and "forcible detainer" actions were well established, citing Cofield v. Randolph County Comm'n, 90 F.3d 468 (11th Cir. 1996), as were relevant U.S. Supreme Court decisions, Fuentes v. Shevin, 407 U.S. 67 (1972) (possessory interests in property invoke procedural due process protections, and U.S. v. James Daniel Good Real Prop., 510 U.S. 43 (1993) ("the right to prior notice and a hearing is central to the Constitution's command of due process.").

     At the same time, the court ruled that it was not clearly established that the allegedly illegal eviction was a "seizure" of property for Fourth Amendment purposes, since the officers never asserted any "physical control" over the property in question, entitling the officers to qualified immunity on the Fourth Amendment claim.

     Thomas v. Cohen, #01-5088, 304 F.3d 563 (6th Cir. 2002).

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Federal appeals court upholds $230,000 disability discrimination award to severely hearing-impaired arrestee for county's failure to take his disability into account during the process of arresting him for driving while intoxicated. Court finds that the evidence was sufficient to find that the county intentionally discriminated against him by failing to find a more effective method than verbal communication to explain things to him. Liability could be imposed on county without showing an official policy or that the deputy who arrested the motorist was a policymaker.

     A Texas motorist, who is severely hearing-impaired, was involved in a car accident when he rear-ended another vehicle traveling on the shoulder of a highway. Two deputies arrived at the scene of the accident in response to a report of an "incoherent subject" at the location. Shortly after they arrived, the motorist informed them of his hearing disability.

     Despite this knowledge, one of the deputies allegedly proceeded to administer three sobriety tests without asking the motorist which form of communication would be effective for him. Prior to administering the tests, one of the deputies turned on the video camera in his patrol car, which was standard procedure when an officer suspects that there may be a need for an arrest.

     The tests administered included a "walk and turn" test, a "one-leg stand" test, and a "finger-to-nose" test.

     According to the plaintiff, after the deputy demonstrated the "walk and turn" test for him, he performed the task as demonstrated, but the deputy had his back turned to the plaintiff while giving instructions. Because he could not understand the instructions as communicated, he took more than the required nine steps before turning around and returning to the starting point.

     The deputy allegedly demonstrated the one-leg stand test, but spoke very quickly while giving instructions. As a result, while the plaintiff was able to complete the task as demonstrated, he counted to fourteen, rather than ten, while doing so.

     On the "finger-to-nose" test, the deputy requested that the plaintiff touch his nose six times, and the plaintiff performed the task as demonstrated, but due to his failure to understand the deputy's instructions, he touched his nose approximately twenty-five times. The deputy then concluded that the motorist was unable to complete the tests as instructed, and arrested him for driving while intoxicated.

     The motorist contends that he did not understand the instructions given, and would have been able to perform the tests as requested if he had. Prior to arresting the motorist, the deputy read him his Miranda warnings, but the plaintiff did not respond when asked if he understood his rights.

     At the police station, the deputy read the motorist his rights again, and wrote the Miranda warnings on a blackboard. Despite knowledge that the arrestee was hearing-impaired and may not have understood his verbal communications, the deputy "nonetheless interrogated him without any accommodations to ensure that" he understood the circumstances of his arrest. The deputy allegedly asked the arrestee six times to take a blood test before he consented to do so. After passing the blood test, the motorist was released.

     His lawsuit alleged violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132 et seq. and Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794, as well as disability discrimination under Texas state law, Texas Human Resources Code chapter 121, and seeking damages under 42 U.S.C. Sec. 1983. The trial court granted the county's motion for judgment as a matter of law on the Sec. 1983 claims for denial of medical attention and unauthorized medical testing, but denied it on the other claims for disability discrimination, finding that a factual issue existed as to whether there was intentional discrimination or deliberate indifference in the county's treatment of the plaintiff.

     The jury specifically found that the plaintiff, by reason of his hearing disability, was excluded from participation in, or denied the benefits of, the services, programs, or activities of a public entity, or otherwise subjected to discrimination by the county, that the county's conduct was intentional, and that the county's exclusion, denial or discrimination against the plaintiff proximately caused damages, awarded $230,000.

     The federal appeals court upheld the award. It further ruled that the arrestee did not have to prove that the deputy who arrested him was a "policymaker" and was not required to prove that the county had a "policy" of discrimination. Additionally, it found that the evidence was sufficient to support the jury's finding that the discrimination was intentional.

     The court reasoned that Congress intended to impose an affirmative duty on public entities to create policies or procedures to prevent discrimination based on disability, and therefore, while federal civil rights claims against municipalities under Sec. 1983 require a showing of an official policy, that same rule does not apply to claims against a municipality for violation of the ADA and Rehabilitation Act.

     The court also ruled that the plaintiff was not required to show "deliberate indifference," but did have to show "intentional discrimination." In this case, the court found that it was clear from the videotape of the incident that no matter how many times the deputy repeated himself, and no matter how loudly he spoke, the motorist could not understand most of what he was staying.

     Further, instead of viewing the motorist's actions, such as starting the tests early after the deputy told him not to start yet until he was finished demonstrating, as an indication that verbal commands were not effective, the deputy only "became annoyed" and continued to instruct the motorist through verbal communications. He did not try to find a more effective form of communication.

     One of the deputies, in his testimony, admitted that he did not know whether the arrestee understood his rights as verbally communicated.

     After a thorough review of the record, the appeals court concluded, "we cannot conclude" that the jury was "plainly erroneous' in finding that the plaintiff sustained a claim for disability discrimination against the county.

     Delano-Pyle v. Victoria County, Texas, #00-41038, 302 F.3d 567 (5th Cir. 2002).

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Wife awarded $30,000 against Tennessee county for failing to protect her against her estranged husband who allegedly burned her home when deputies failed to arrest him for violating a protection order while divorce proceedings were pending. Tennessee statute waiving governmental immunity for county, however, barred the additional award, by the trial court, of $130,000 in damages against two deputy sheriff's.

    A woman in Tennessee claimed that the county and sheriff's deputies failed to adequately protection her against her estranged husband (now her ex-husband) who allegedly set fire to her home while divorce proceedings were pending. Her claim was based on the alleged failure to the deputies to arrest the husband for violating a protection order, which allegedly left him free to commit the arson.

     The complaint sought damages for both property loss and emotional distress under the Tennessee Governmental Tort Liability Act (TGTLA), T.C.A. Sec. 29-20-101 to 407. The federal trial court, applying state law, awarded the plaintiff $30,000 in damages against the county and $130,000 in damages against two deputy sheriffs.

     A federal appeals court, interpreting Tennessee state law, ruled that the damage award against the deputies was precluded, remanding the case with instructions to enter judgment solely against the county, which did not appeal the award against it.

     The defendant deputies argued, and the appeals court agreed, that Sec. 310 of the statute precluded the entry of a judgment against a governmental employee when the governmental entity's immunity from suit has been removed under it.

     The appeals court pointed to the Tennessee Supreme Court case, Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000), [PDF format], in which the court reasoned that the state legislature "wished to limit the exposure of municipal employees while it selectively removed the immunity of the municipality itself," giving absolute immunity to employees in cases where the municipality's immunity was removed, and limiting the employee's liability in cases in which the municipality was still immune, unless the employee's actions were "willful, malicious, criminal, or performed for personal financial gain."

     "Once immunity has been lifted against the governmental entity, no claims may be brought against its employees for acts that gave rise to the suit. Plaintiff urges us to separate her property loss claim from her emotional distress claim despite the fact that both stemmed from the same nucleus of facts," the court noted, but it declined to do so, because the county's immunity from her entire suit had been removed, as "evidenced by the $30,000 judgment entered against it."

     Matthews v. Pickett County, Tennessee, No. 00-6644, 46 Fed. Appx. 261 (6th Cir. 2002).

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Evidence supported jury's determination that state troopers' actions in arresting casino patron were extreme and outrageous in a manner allowing an award of damages for intentional infliction of emotional distress. Trooper allegedly allowed security officer to pepper spray arrestee while handcuffed and transported arrestee outside on cold winter night dressed only in socks and underwear.

     A Connecticut federal court jury found that a state trooper arrested a casino patron without probable cause and used excessive force against him, as well as finding that his actions were sufficiently outrageous as to constitute the intentional infliction of emotional distress under state law. The jury awarded compensatory damages of $75,001 and punitive damages of $125,000, and the trial court awarded attorneys' fees of $217,002.37.

     Declining to set this award aside, the trial court found that sufficient evidence supported the jury's conclusions concerning the absence of probable cause for the arrest, and the arrestee's subsequent "no contest" plea to certain charges did not alter the result, as they related to a subsequent incident occurring at a hospital to which he was taken, and all charges relating to the casino-related incident were dropped.

     The court further found that actions in allegedly allowing a security officer to pepper spray the arrestee while he was handcuffed, and in transporting the arrestee outside on a cold winter night dressed only in his socks and underwear, and later allowing him to remain in that condition in a cold cell for hours were sufficiently extreme and outrageous under Connecticut state law to support an award for intentional infliction of emotional distress.

     Sabir v. Jowett, 214 F. Supp. 2d 226 (D. Conn. 2002).

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Officer's arrest of an attorney, made during his protest of a state trooper's traffic stop of his client, was not unlawful retaliation for the attorney's exercise of his First Amendment rights. The lawyer's interference with the officer on the side of a busy interstate highway and his attempt to leave the scene after the trooper informed him that he was going to be issued tickets, gave the trooper probable cause to arrest him for his conduct, even if the trooper was "arguably brimming over with unconstitutional wrath."

     An Illinois attorney left a courthouse one evening with his client. The attorney, stating that he was concerned about "potential police misconduct," told the client that he would follow him on the road back from Boone County to Chicago. Shortly after entering a tollway, the client's vehicle was stopped by state trooper, who exited his marked car and approached the client's car.

     The attorney stopped his own car on the highway shoulder, backed up, parked in front of his client, exited his car and approached the trooper, identifying himself as his client's attorney and questioning the trooper's decision to pull the client's car over. The trooper explained that he was going to ticket the client for following too closely, having an obstructed windshield, and not wearing a seatbelt. He instructed the attorney to return to his vehicle and warned him that his failure to comply would result in the trooper also issuing tickets to him.

     The attorney subsequently admitted that he refused to obey the trooper's orders, even though he was aware that it was being issued by a uniformed officer engaged in the performance of his duties, and even after the orders were repeated. The trooper then said that he was going to issue the attorney tickets--whereupon the attorney both "announced and manifested" his intent to flee in his vehicle. The trooper then found a knife in the attorney's car, which he put on the roof of the attorney's car. The attorney allegedly retrieved the weapon once the trooper returned to his squad car to call for backup.

     While the attorney subsequently disputed that the trooper warned him not to touch the weapon, he admitted that he retrieved it moments after the trooper removed it from his reach and informed him that he was going to be arrested for the unlawful use of a weapon. The trooper then took the attorney into custody, charging him with obstructing an officer and resisting arrest, as well as two minor traffic offenses. He was ultimately found not guilty and sued the officer claiming malicious prosecution and unlawful retaliation against him for exercising his First Amendment rights.

     A federal appeals court upheld summary judgment for the officer. It found that there was probable cause for the trooper to arrest the attorney for his conduct, which amounted to interference with the officer's traffic stop of his client along a busy highway. Further, if he believed that the trooper was improperly issuing him tickets, he could make his defense in court, and should not have attempted to flee the scene in an effort to avert the issuance of a citation.

     While the appeals court acknowledged that it was possible that the trooper was "brimming over with unconstitutional wrath" at the attorney's statements and actions, this did not show that the arrest was "retaliation" for the attorney's exercise of his First Amendment rights. The attorney was arrested for his conduct, not for his speech, the court ruled.

Verbal criticism of police officers is an important characteristic of a free nation and cannot be punished. [...] But [the attorney] could have been reciting the Magna Carta and still been properly apprehended by [the trooper] His interference with a traffic stop was not the proper time, place, or manner for an officer of the court to register his disagreement with the traffic stop.

     Abrams v. Walker, No. 01-2447, 307 F.3d 650 (7th Cir. 2002).

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Officer who had probable cause to arrest a suspect for misdemeanor assault did not violate his rights by making a warrantless arrest outside the door of his apartment, after the suspect stepped outside as the officer instructed. Court rejects the argument that this constituted an "inside-the-home" arrest for which a warrant or exigent circumstances were required.

     A Florida police officer arrested a suspect for misdemeanor assault when he stepped outside the door to his apartment. The officer had just instructed the suspect to step outside the door. The arrestee filed a lawsuit for false arrest, and also argued that his constitutional rights were violated because the officer needed either a warrant or exigent circumstances to arrest him inside his home.

     Rejecting these claims, a federal appeals court found that despite the fact that the arrestee was ultimately never prosecuted, the officer had reason to belief, at the time of the arrest, that the suspect had threatened violence to his ex-girlfriend, who lived next door, and that he had created a "well-founded fear" for the ex-girlfriend that violence was imminent. This gave him probable cause to make an arrest, and the fact that Florida law, with only a few exceptions, authorizes warrantless arrests for misdemeanors only if they are committed in the officer's presence did not alter the result.

     The appeals court held that Florida law procedures governing warrantless arrests are not "written into the federal Constitution," so that if the arrest was supported by probable cause, the fact that it would not have been permitted by applicable state law did not support a federal civil rights claim.

     The appeals court also rejected the argument that the arrest violated the plaintiff's rights under the decision in Payton v. New York, 445 U.S. 573 (1980), which held that a warrantless arrest inside the home of a suspect is presumptively unreasonable unless exigent circumstances justify the intrusion. The court commented that the plaintiff's claim "founders on the facts," because he was not arrested inside his home at all, but just outside the door of it after he stepped out as instructed" by the officer.

     The officer never crossed the threshold or went over the line at the entrance to the house, the court noted. Payton, the court commented, 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."

     Knight v. Jacobson, #01-15506, 300 F.3d 1272 (11th Cir. 2002).

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Arrestee could not recover damages for his arrest on Christmas Eve under a warrant intended for his identical twin brother or for his wrongful detention for four days after he protested his innocence and that he was not the person sought. Warrant was facially valid, he met the description of the person sought, and a program of immediately doing fingerprint comparison of arrestees was not required by the constitution.

     A man was mistakenly arrested on December 24, 1999 in Chicago under a warrant issued for his identical twin brother. The arrestee matched the physical description and exact age of the individual named in the warrant, although their first names were slightly different. At the time of his arrest, the arrestee informed the officer that he was not the person named in the warrant and showed him his driver's license. The arrestee's father, who was present at the scene of the arrest, also told the officer that the arrestee was not his twin brother, but the officer ignored these protests.

     He was subsequently held in custody for four days, and was ultimately released on the basis of an investigation by the public defender's office and county jail personnel. He sued the arresting officer, the city, and the county jail and its sheriff, alleging federal civil rights violations as well as state law claims for wrongful arrest and detention.

     A federal appeals court has upheld the dismissal of his lawsuit. The court found that it was reasonable for the police officer to believe that the plaintiff was the person named in the warrant, and the warrant was facially valid.

     Because suspects often use aliases, the mere fact that the plaintiff had a driver's license with a different first name was not enough to require the officer to believe his story that it was actually his twin brother who the warrant sought. The officer also could doubt the arrestee's father, on the basis of their family relationship.

     The court also held that it was clear under existing case law that a program of immediately doing fingerprint comparisons of arrestees was not constitutionally required.

     Panfil v. City of Chicago, No. 01-3150, 45 Fed. Appx. 528 (7th Cir. 2002).

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No liability for police officer who entered home in response to two dropped 911 calls made during an ongoing domestic violence incident and subsequently shot and killed a man inside armed with a gun. Appeals court finds that "substantial evidence" supported the jury's finding that the officer had implied consent to enter the home when the "terrified" young female who opened the door did not respond to his questions, but stepped back and did not object when he entered.

     A Hawaii police officer went to a residence in response to two "dropped" 911 calls coming from there. When he arrived, a young female with a "terrified" look on her face answered the door, and would not respond to his questions, but when she saw him, opened the door wider and stepped back.

     The officer entered the home. No one objected to his entry, but the young woman looked to her mother, who was standing nearby, and the mother also initially failed to respond to questions about whether there was a problem and if anyone had called 911. The officer subsequently learned that a male in the home had grabbed her by or near her neck, and the officer told the "feuding" parties that one of them would have to leave.

     As the male went to the kitchen to gather up his things, the officer noticed him remove a revolver from a drawer there and put it in the waistband of his pants. The officer drew his weapon and ordered the man to drop the gun. The man instead removed the gun from his waistband and lowered it to his side, then pointed it at his own head and challenged the officer to shoot him.

     The officer subsequently stated that in lowering the revolver, the suspect pointed it in his direction and took several steps forward, so he shot the suspect in the chest, killing him. The decedent's estate contended that the suspect was simply holding his weapon at his side, pointing it towards the ground.

     His estate sued the officer and the county for excessive use of force. The jury returned a verdict in favor of the officer, finding that the officer had received a "clear and unequivocal consent to enter" from the occupants of the house, and that he had a reasonable belief that the decedent posed a significant threat of death or serious physical injury to the officer or others when he shot him.

     A federal appeals court upheld this result on appeal. It found that "substantial evidence" supported the jury's finding that the officer had "implied consent" to enter the home. There was nothing in the record to suggest that the decision of the young woman to more fully open the front door of her home and step back into the living room was "mere acquiescence to a claim of lawful authority." To the contrary, the court found, the circumstances indicated that her actions constituted an "implied invitation to enter the home."

     Further, while the mere failure to object to an officer's entry is "alone insufficient to allow an inference of consent," the fact that none of the occupants of the residence objected to his entry "lends further credence to the conclusion" that he had consent.

     Pavao v. Pagay, #01-15201, 307 F.3d 915 (9th Cir. 2002).

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Officer who investigated a mother's alleged assault of her teenage daughter was not liable for malicious prosecution when the mother provided no evidentiary support for her claim that the officer was untruthful in his trial testimony, and did not even show that he caused her to be prosecuted or arrested or seized her. Nothing in the record showed that the investigating officer had anything to do with the prosecution, in fact, after he submitted his report to the prosecutor's office.

     A Michigan woman claimed that a state trooper falsely and maliciously caused her to be arrested without probable cause for the assault of her eighteen year old daughter. She claimed that the trooper was responsible for obtaining the warrant for her arrest, and that, without any evidence that an assault had occurred, provided false statements and omitted material facts in his report of the investigation of the alleged assault, deliberately lying and misrepresenting the medical report of the physician who examined the plaintiff's daughter.

     The woman was tried and acquitted by a jury on the assault charges.

     A federal appeals court ruled that the trooper was entitled to qualified immunity from suit and reversed the trial court's denial of summary judgment in his favor.

     The trooper became involved in the investigation after a high school guidance counselor reported to the state police that a student at the school confided that he mother had struck her twice in the face with an open hand the previous evening, causing her to have pain on the left side of her jaw and difficulty opening her mouth. The guidance counselor also took the student to a doctor for an examination, where a written medical report was prepared.

     The trooper investigated, speaking to the student, the guidance counselor, and the mother (on the phone). He also spoke to the student's father, who confirmed that the mother had hit her daughter, and who also stated that she hit him also when he attempted to intervene. The trooper also interviewed the student's older sister. He then submitted his report, along with the medical report, to the prosecutor's office, which decided to charge the mother with aggravated domestic violence.

     The appeals court noted that it was unclear from the record whether the mother was ever "formally arrested," but it was clear that after the trooper turned in his investigative report, he did nothing more than fingerprint the mother at the police station when she came there, and testified at her trial.

     The trooper did not make the decision to prosecute the plaintiff, the court found, and his report contained statements by alleged eyewitnesses identifying the mother as the assailant of her daughter. The eyewitness statements included statements of the victim and her father, as well as statements by the older sister which "lent credence" to the suggestion that this incident was not the first combative encounter the mother had with her children.

     The plaintiff presented no evidence showing that the trooper had any reason to believe that these witnesses were untruthful, and his report was further supported by the doctor's medical report. There was also no evidence that the trooper was untruthful in his testimony, and the court found that the transcript of his trial testimony, included as part of the plaintiff's response to the motion for summary judgment, merely reconfirmed the information in his police report and the medical report.

     Finally, there was no evidence that the trooper actually arrested or "seized" the plaintiff at any time, and it is "not clear whether she was arrested at all. The plaintiff voluntarily appeared for her arraignment and was ordered by the court to proceed to the state police post for fingerprinting and processing. The trooper's only role there was to fingerprint her.

     Since the plaintiff presented no evidence in support of her claims, and the evidence "resoundingly supports the legitimacy" of the trooper's conduct, he was entitled to summary judgment.

     Skousen v. Brighton High School, #00-2170, 305 F.3d 520 (6th Cir. 2002).

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Plaintiff did not have to "plead with particularity" the alleged falsifications that a coroner made in an autopsy report which lead to the plaintiff's arrest and prosecution for murder charges on which he was later acquitted, or that the coroner knew that his statements were false to establish his improper motive. A short and plain statement of the claim was sufficient.

     A federal appeals court has overruled its past decisions requiring that a plaintiff "plead with particularity" constitutional claims on which an improper motive is an element.

This appeal involves a claim that a county coroner falsified an autopsy report, leading to the false arrest and prosecution of plaintiff Nelson Galbraith for murder in violation of his constitutional rights. The central question is whether a heightened pleading standard should continue to apply to constitutional tort claims in which improper motive is an element. See Branch v. Tunnell, 937 F.2d 1382, 1385-88 (9th Cir. 1991). In light of intervening Supreme Court cases, we hold that the Branch heightened pleading standard no longer applies

.     The appeals court cited the U.S. Supreme Court cases of Crawford-El v. Britton, 523 U.S. 574 (1998) (Court of Appeals erred in fashioning a heightened burden of proof for unconstitutional-motive cases against public officials) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (federal rules of civil procedure do not require that a complaint contain specific facts establishing a prima facie case, but instead only a "a short and plain statement of the claim showing that the pleader is entitled to relief"), and explicitly found that these cases overruled its own prior decisions in Branch, cited above, as well as Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994).

     In the immediate case, the arrestee, who was subsequently acquitted of the charges against him, alleged that the coroner recklessly disregarded the truth when he stated in his autopsy report that the decedent was strangled, while ignoring "abundant evidence" that pointed to suicide. The Complaint claimed that various deficiencies in the autopsy showed that the coroner did not perform the work the way he claimed to have done it, and lied in his report, in his communications with other investigators and on the witness stand in order to "cover up" for his own incompetence. It also stated that this conduct proximately caused the arrest and prosecution of the plaintiff.

     This, the court found, was adequate to state claims against the coroner and the county, and the plaintiff did not have to "plead with particularity" the alleged falsifications in the autopsy report or that the coroner knew that the statements in the report were false, or how the falsifications caused the prosecution, to establish the coroner's improper motive.

     Galbaith v. County of Santa Clara, #00-17369, 307 F.3d 1119 (9th Cir. 2002).

     »Click here to read the decision on the Internet. [PDF]

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Police chief was not entitled to qualified immunity on detainee's claim that officer falsely arrested him and then tried to sexually molest him. Complaint presented sufficient allegations that the city ignored a known or obvious risk that the officer was highly likely to engage in sexual misconduct and abuse of power and inadequately screened him.

     The plaintiff claimed that an Alabama police officer unlawfully stopped him, conducted an unlawful pat down search, handcuffed him and placed him in his police vehicle, and then drove him to a remote location. Once there, the officer allegedly exposed himself and attempted to sodomize the detainee. The federal civil rights lawsuit filed by the detainee, in addition to claims against the officer, asserted claims against the city and police chief for allegedly failing to adequately screen the officer before hiring him.

     According to the plaintiff, the defendant officer was dismissed from prior employment with another police department for indecently exposing himself to others and the defendant city police department was aware of a complaint against the officer for sexual misconduct and abuse of power before the immediate incident occurred.

     The trial court rejected arguments that there were "no constitutional violations" alleged in the case. The court found that there are constitutionally defined protections against unlawful searches and seizures as well as a due process right to liberty, which includes the right to be free from sexually motivated physical assaults, which were adequately alleged by the plaintiff's complaint.

     The trial court also rejected the argument by the city that the plaintiff was improperly seeking to simply hold it vicariously liable as the officer's employer, finding that the complaint adequately alleged that the city had a policy or custom of deliberate indifference through its police chief, specifically a failure to screen applicants and a failure to adequately train or supervise.

     The plaintiff also alleged that when he reported the defendant officer's conduct to another officer, that officer stated that the department knew about or had suspected the defendant officer's misconduct. According to the complaint a prior complaint of detention, unlawful touching, and attempted sodomy was filed against the defendant officer before his.

     The court did dismiss, however, as improper a claim for punitive damages against the city under both federal and state law.

          Romero v. City of Clanton, 220 F. Supp. 2d 1313 (M.D. Ala. 2002).

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

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Defenses: Judicial Bias

     Judge's relationship with the President of the Board of Police Commissioners, which included appearances at the same bar association functions and large social events and several small group meetings over almost twenty five years was not a close enough relationship as to require his recusal under 28 U.S.C. Sec. 455(a) from presiding over a police officer's lawsuit against police officials for malicious prosecution and falsely accusing him of assault and use of excessive force against a mentally retarded person mistakenly identified as a burglar. Judge recuses himself anyhow, however, on other grounds.  Moran v. Clarke, 213 F. Supp. 2d 1067 (E.D. 2002).

Defenses: Qualified Immunity (2 cases)

     Arresting officers were entitled to qualified immunity from a landowner's claim that they violated her Fourth Amendment rights and used excessive force during her arrest for interference with a gas company's easement over her property. The plaintiff did not dispute that she attempted to take a gun from one officer's holster when officers were trying to arrest her husband, so they acted reasonably in believing that they were using appropriate force in subduing her by pushing her to the ground. Pulice v. Enciso, #01-3748, 39 Fed. Appx. 692 (3rd Cir. 2002).

     The possibility that an arresting officer could have reasonably believed that he had probable cause to arrest a hotel manager for theft of petty cash deliveries was enough to provide him with qualified immunity from liability for false arrest, despite the alleged access of other hotel employees to the funds and the officer's alleged failure to interview either the manager or other hotel employees before making the arrest. Robinson v. Gerritson, 210 F. Supp. 2d 1004 (N.D. Ill. 2002).

Expert Witnesses (2 cases)

     No hearing was required to resolve a plaintiff arrestee's objections to the admission of an expert psychiatrist's report and testimony about his mental state at the time of his arrest when the basis for the objection was disagreement with disputed factual evidence on which the expert relied. The plaintiff, who claimed excessive use of force during the arrest, could explore, during cross-examination, the reliance that the expert put on the disputed evidence in drawing his conclusion that the plaintiff had been psychotic at the time so that his perception of events were impaired and unreliable. He could also argue to the jury that, if it rejected the underlying factual premises of the expert's report, it should also reject the expert's opinion. Walker v. Gordon, #01-4106, 46 Fed. Appx. 691 (3rd Cir. 2002).

     Instructors at college's police academy, who had testified against police as expert witnesses in an excessive force case had no constitutionally protected property interest which was violated by chiefs of police and sheriffs allegedly seeking non-renewal of their contractors in retaliation for the testimony. Police chiefs and sheriffs were not, however, entitled to qualified immunity on instructors' claim that they kept their personnel out of the instructors' classes, in violation of their First Amendment rights, in retaliation. Plaintiffs also asserted a valid claim under Texas state law for tortious interference with instructors' contract relationship with the academy, and the defendants were not entitled to official immunity from that claim. Kinney v. Weaver, #00-40557, 301 F.3d 253 (5th Cir. 2002).

False Arrest/Imprisonment: No Warrant (3 cases)

     Dispute over whether arrestee continued to protest loudly or lowered his voice after initial yelling when officer confronted him over sleeping in the surgery waiting room in the hospital where his daughter was going to be operated on barred summary judgment on false arrest claim. Arrestee's activity in confrontation with hospital staff over his sleeping in the waiting room was not, however, protected by the First Amendment. Shevlin v. Cheatham, 211 F. Supp. 2d 963 (S.D. Ohio 2002).

     Arresting officer acted reasonably in relying on reports, videotapes, public records and other materials prepared by private investigators who had been hired by his superiors in making an arrest of an injured correctional officer for allegedly continuing to collect job injury benefits when he no longer qualified for them. The officer had no duty to conduct an independent investigation into the materials provided by his superiors in order to use them as the basis for an arrest, and was therefore entitled to qualified immunity. Caldarola v. Calabrese, #01-9053, 298 F.3d 156 (2nd Cir. 2002).

     Arrestees could not pursue claim for damages against officers who charged them with disorderly conduct when they refused to leave a state park beach after entering through the water rather than a designated land-based entrance, as there was a rational basis for the regulation prohibiting entry from the water, and the disorderly conduct statute, which prohibited disobeying a lawful order of a police officer was not unconstitutionally vague. Dorman v. Castro, 214 F. Supp. 2d 299 (E.D.N.Y. 2002).

False Arrest/Imprisonment: Warrant

      Officers who arrested a motorist on the basis of a computerized outstanding warrant list despite his possession of a printed acknowledgment that the warrant had been recalled were entitled to qualified immunity. Federal trial court rules that the issue of the priority of the printed recall notice over the computerized indication of an outstanding warrant was not clearly established at the time of the arrest. Soto v. Bzdel, 214 F. Supp. 2d 69 (D. Mass. 2002).

Firearms Related: Intentional Use

     Officers who were present but did not participate in fellow officers' shooting of robbery suspects could not be held liable under 42 U.S.C. Sec. 1983 for the use of excessive force in the absence of any proof that they had control over the police department's operations, or the actions of the officers who did fire. Further, nothing showed that they set into motion any action that resulted in the shooting or that they authorized, approved, or acquiesced in the shooting. Their mere presence was not enough to pursue claims against them. Figueroa v. Gates, 207 F. Supp. 2d 1085 (C.D. 2002).

Freedom of Information

     Documents concerning an internal investigation of a police officer were exempt from disclosure under Michigan's Freedom of Information Act, MCLA Sec. 15.243(1)(s)(ix), because they were part of the personnel records of a law enforcement agency. Sutton v. City of Oak Park, #229640, 650 N.W.2d 404 (Mich. App. 2002). [PDF]

Governmental Liability: Policy/Custom

     County could not be held liable for officer's alleged unlawful handcuffing and strip searching of plaintiffs in their home when the plaintiffs failed to establish their case against the officer. Summary judgment was therefore entered for the county. Robertson v. Prince George's County, 215 F. Supp. 2d 664 (D. Md. 2002).

Miscellaneous: Towing

     Sheriff's department did not violate the due process rights of the operator of a towing service by removing his company from a rotation list. Despite company's seventeen years of service, it had no property interest in being on the tow rotation list, and internal departmental rules establishing a policy of removing companies only for "sufficient cause" did not create a property interest because they were not required by statute or ordinance. Plaintiff operator also did not establish a First Amendment violation based on his argument that the removal was in retaliation for his public criticism of the rotation system. S&S Research, Inc. v. Paulszcyk, No. 01-2456, 44 Fed. Appx. 744 (7th Cir. 2002).

Procedural: Amendment of Complaint

     Plaintiff could, under Federal Rule of Civil Procedure 15, amend his complaint, seven years after it had been filed, to add three officers as defendants, when the original complaint mentioned all three of them as having been involved in the alleged use of excessive force against him, but he could not amend it to now name as a defendant an officer who was named only as a witness in the original complaint, since he was not on notice that he could be named as a defendant. Mosley v. Jablonsky, 209 F.R.D. 48 (E.D.N.Y. 2002).

Procedural: Class Actions

     In federal civil rights lawsuit brought by Native American anti-gambling demonstrators alleging that state officials violated their right to equal protection by not providing them with police protection on the reservation, the plaintiffs' motion for class action certification was not "untimely" despite being filed more than ten years after the lawsuit was begun, since the trial was still not "imminent," and there had been no rulings on the actual merits of the claims in the case. Court also rules that the allegations in the complaint satisfied the requirements for class certification under Federal Rule of Civil Procedure 23. Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002).

Procedural: Failure to Prosecute (2 cases)

     Dismissal of an arrestee's federal civil rights lawsuit alleging excessive force in his shooting by an officer was not appropriate for failure to prosecute, despite the inactivity of the case during two years since the plaintiff's release from prison. Plaintiff had not failed to comply with any court orders or to appear for any scheduled depositions and the plaintiff was unable to leave New York to litigate his claim in Pennsylvania due to the conditions of his parole. No prejudice would be suffered by the defendants by proceeding with the case since statements were taken on the day of the shooting and the depositions of both the plaintiff and the defendant officer were already taken. Baxter v. Lancaster County, 214 F. Supp. 2d 482 (E.D. Pa. 2002).

     Trial court abused its discretion in dismissing a motorist's lawsuit against the city and one of its police officers following three years of inactivity in the case when the city itself was partially responsible for the delay, having asked for a continuance after a new lawyer was assigned to the case, and city would not be prejudiced by officer's alleged non-availability when his deposition testimony and trial testimony from an earlier trial with a hung jury was available. Claims in the case involved the officer's alleged wrongful refusal to provide motorist with the identity of another driver who turned in front of him, forcing his vehicle into a ditch. Tims v. City of Jackson, No. 2000-CA-01820-COA, 823 So. 2d 602 (Miss. App. 2002).

Property

     A city's delay in setting a hearing date for a number of weeks after a motorist's car was towed for alleged parking violations, despite the owner's "insistent and immediate" demand for a hearing violated both a California state statute, Ann. Cal. Vehicle Code Sec. 22852, and constitutional due process, as clearly established twenty-five years before in Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir. 1977). Overturning trial court's grant of summary judgment for defendant city in motorist's federal civil rights lawsuit, appeals court also holds that the motorist was not entitled, as a matter of due process. to cross-examine the officer who issued the towing order, but that the city had the burden, under California law, of demonstrating that the seizure of the car was valid. David v. City of Los Angeles, #00-57091, 307 F.3d 1143 (9th Cir. 2002). [PDF format].

Search and Seizure: Warrants

     There was probable cause for a warrant to search a nursing student's residence for evidence of dispensing drugs, including a confidential informant procuring drugs from the suspect during a "sting operation," so that officers' alleged withholding of exculpatory evidence from search warrant affidavit did not violate her Fourth Amendment rights. DeFelice v. Ingrassia, 210 F. Supp. 2d 88 (D. Conn. 2002).

Strip Search

     State social worker violated Fourth Amendment rights in conducting a visual body cavity search of a female minor based on accusations of sexual abuse without demonstrating probable cause and obtaining a court order, getting parental consent, or showing emergency circumstances, but she was entitled to qualified immunity because the violation was not clearly established in July of 1999. Mother of child did consent to investigative home visit and therefore had no individual claim for Fourth Amendment violations. Roe v. Texas Department of Protective and Regulatory Services, #01-50711, 299 F.3d 395 (5th Cir. 2002).

     Article: "Supreme Court Cases 2001-2002," a review of cases decided by the court during the last year of possible interest to law enforcement, prepared by instructors in the Legal Instruction Unit of the FBI Academy. Vol. 71, No. 12 FBI Law Enforcement Bulletin pgs. 16-24 (December 2002). [PDF]. (Subsequent and prior issues of the FBI Law Enforcement Bulletin are available on-line at: http://www.fbi.gov/publications/leb/leb.htm.)

     Conference Presentations: conference presentations from Beyond the Technology: The Law & Policy Implications of Increased Biometric Use (a national conference sponsored by U.S. Department of Justice Bureau of Justice Statistics (BJS) and SEARCH, the National Consortium for Justice Information and Statistics) in New York City, November 5-6, 2002.

     Guide to Bureau of Justice Statistics Website: Guide to the BJS Website: Third Edition (December 2002). Reports on the latest updates and additions to materials on the U.S. Department of Justice BJS website. In addition to paper documents, BJS electronically publishes a variety of materials, including statistical graphics and spreadsheets on its website. This report, the third in a series, outlines all of the material available on the website, some not otherwise published. NCJ 187735. Available in PDF format or plain text ASCII format.

     Memorandum of Agreement: Memorandum of Agreement Between the United States Department of Justice and the City of Buffalo, New York and the Buffalo Police Department, the Police Benevolent Association, Inc., and the American Federation of State, County, and Municipal Employees Local 264, September 19, 2002. The agreement provides for a cooperative effort by DOJ, the City, the BPD, the PBA and Local 264 to establish management practices by the City and BPD that promote lawful use of chemical agent propellant ("CAP") spray and community support for the BPD and its officers. The agreement was entered into pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, and resolves the DOJ's investigation into the BPD's use of CAP spray.

     Publication: Freedom of Information Act Guide, (May 2002). The "U.S. Justice Department Guide to the Freedom of Information Act" is an overview discussion of the FOIA's exemptions, its law enforcement record exclusions, and its most important procedural aspects. Prepared by the attorney staff of the Office of Information and Privacy, it is updated and revised biennially. See also The DOJ FOIA Reference Guide, revised December 2002 This handbook is designed to familiarize the reader with the specific procedures for making a FOIA request to the Department of Justice, and includes the mailing address of the FOIA offices of each DOJ component. This guide also contains descriptions of the types of records maintained by each component. A listing of published law review articles on the Freedom of Information Act, commencing with pre-1970 articles and listing articles following that in chronological order through 2002 is available on the DOJ website in PDF format. See also Freedom of Information Case List, (May 2002).

     Publication: Magistrate's Guide to the Vienna Convention on Consular Notifications. [PDF format] Published by the Texas Attorney General's Office (2000). Contains instruction and guidance relating to the arrest and detention of foreign nationals and related issues pertaining to the provision of consular services to foreign nationals in the U.S. Includes translations of suggested statements to be made to foreign nationals who are arrested or detained (Arabic, Chinese, Farsi, French, German, Italian, Japanese, Korean, Polish, Portuguese, Russian, Spanish, Vietnamese) and a suggested fax sheet for notifying consular offices of an arrest or detention. Under the Vienna Convention on Consular Relations, an international treaty to which 160 countries, including the U.S., are parties, foreign nationals are supposed to be allowed to contact the consulate of their country of nationality when incarcerated, imprisoned, or taken into custody or detained. In the instance of some countries, notification is mandatory, as opposed to being at the option of the foreign national, and this publication discusses a number of issues that arise as a result. EDITOR'S NOTE: At least one federal court has held that the failure to allow a foreign national to contact the consulate of their country can be the basis for a federal civil rights lawsuit. See Standt v. City of New York, No. 99-Civ-110008, 153 F. Supp. 2d 417, 2001 U.S. Dist. Lexis 9954 (S.D.N.Y.), reported in Liability Reporter, October 2001. (City could be sued for violation of civil rights for failure to allow a German visitor arrested to contact the German consulate as required by treaty). The U.S. State Department also maintains a web page containing "Instructions for Federal, State, and other Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials To Assist Them," which is updated from time to time.

     Report: Commission on Special Weapons and Tactics (S.W.A.T.) (Sept. 2002) - [PDF format 1,120k 42pg] This report by the California Attorney General's Commission on Special Weapons and Tactics (SWAT) identifies seven important issues and makes numerous recommendations to improve public safety and law enforcement success in the use of SWAT.

     Report: National Drug Control Strategy, 123 pages, 2002 This report provides an overview of Federal efforts to prevent drug use, treat America's users, and disrupt the drug market. Available in PDF format and in .html. See also Pulse Check: Trends in Drug Abuse (April 2002) Executive Office of the President Office of National Drug Control Policy Washington, DC 20503 NCJ 193398.(For the entire document in PDF format, click here).