CONTENTS

Evidence was sufficient for jury to award $15,000 to man beaten by police officer while sergeant stood by, but an award of $2 million in punitive damages was excessive, federal trial court rules, citing new U.S. Supreme Court case on proportionality of punitive damages to compensatory damages. Trial judge orders reduction of punitives to $45,000 or else a new trial on the issue of punitive damages.

     A Chicago man was arrested at his home for spraying water on a police officer on the previous afternoon. Once he arrived at the police station, he subsequently claimed, he was led into a small interrogation room and his hands were cuffed behind his back. A police officer then allegedly proceeded to strike him fifteen to twenty times in the face, head and neck with his open hand and kneed him in the groin, while a police sergeant, also present in the room, stood by and did nothing to intervene.

     The arrestee sued the two officers for excessive use of force. A jury returned a verdict in favor of the plaintiff, and awarded him $15,000 in compensatory damages against both defendants. The jury also awarded a total of $2 million in punitive damages, $500,000 against the officer and $1.5 million against the sergeant.

     Acting on motions by the defendants to set aside or reduce the awards, the trial judge found that there was sufficient evidence to support the award of compensatory damages, and rejected the argument that this award was excessive on the basis of a lack of evidence of physical injuries. The court noted that jury was presented with evidence, in the form of the plaintiff's own testimony, regarding his physical pain and suffering following the arrest, as well as his emotional distress.

     The court also found that the defendants' conduct was "reprehensible" enough to warrant an award of punitive damages to achieve punishment or deterrence. There was evidence that the beating was a "malicious and premeditated battery inflicted upon a defenseless victim," at a time where there was no need for the defendants to "apply any force against plaintiff, much less the amount of force that they used." The fact that the defendants were police officers "only contributes to the particularly repulsive nature of their offense."

     At the same time, the court found that the amount of the punitive damages awards were excessive. It cited the recent U.S. Supreme Court decision on punitive damages, State Farm Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003) (reported below in the Noted in Brief section of this publication), ruling that a disproportionate award of punitive damages greatly exceeding the amount of compensatory damages may, in some instances violate due process, as well as the earlier decision of BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

     The trial court found that the conduct "was not nearly so reprehensible as to justify a total punitive award of $2,000,000." This conclusion was supported by the "considerably lower punitive damage awards in similar cases involving conduct significantly more violent and reprehensible than here, including cases in which the assaulted person suffered serious physical injuries, the fact that the award represented a 133 to 1 ratio of punitive damages to compensatory damages, and the fact that there was "simply no way defendants could have fathomed that their conduct would subject them to two-million dollars in penalties," depriving them of fair notice of the possible severity of the penalty.

     The trial court further noted that "the awards against defendants far exceed their ability to pay," so that the "excess amounts, even if warranted, will serve no punitive purpose, because the defendants will never satisfy the awards." Damage awards which greatly exceed the defendant's ability to pay, the court commented, "result in a waste of time" for the jury.

     The court granted the defendants' motion for a reduction of the punitive damage award, ruling that the officer should be liable for $20,000 in punitive damages and the sergeant for $25,000 in punitive damages. The plaintiff was given the option of either accepting this reduction or rejecting it and having a new trial limited solely to the issue of punitive damages.

     The trial court noted that it was keeping the punitive damage award against the sergeant higher than that against the officer "to respect the jury's determination" that the sergeant, as the superior officer, "is deserving of more punishment and deterrence."

     Waits v. City of Chicago, No. 01C4010, U.S. Dist. Ct. N.D. Ill. June 6, 2003, reported in Chicago Daily Law Bulletin, p. 1 (June 9, 2003).

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Arrestee had no constitutional right to pre-trial DNA testing, even though failure to do requested test allegedly delayed his release from detention for twenty-two months.

     A New Jersey arrestee requested a DNA test that he claimed would prove his innocence. He remained incarcerated for twenty-two months before the test was conducted. After the test was in fact conducted, he was released from prison, and he filed a federal civil rights lawsuit against the state, the state police crime lab, and a number of officials asserting that his due process rights were violated by the refusal to conduct the requested DNA test.

     While the federal claims were barred against the state under Eleventh Amendment immunity, the trial court also found that the arrestee had no valid claims against the individual defendants either.

     A defendant in a criminal trial, the court ruled, does not have a constitutional due process right to DNA testing prior to trial, and police have no constitutional duty to perform any particular tests.

     The trial court therefore dismissed the claims against the individuals for failure to state a claim, finding it unnecessary to reach the issue of qualified immunity.

     Jimenez v. State of New Jersey, 245 F. Supp. 2d 584 (D. N.J. 2003).

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     EDITOR'S NOTE: See also Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) (deferring to legislature the issue of the potential constitutional right to post-conviction DNA testing for persons convicted of federal crimes and declining to fashion a broad constitutional due process right of access to DNA testing).

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Doctor who cursed police dispatcher and made statements that could be interpreted as threats against officers did not have a claim for violation of his First Amendment rights based on police department report of these statements to his employer, which contributed to his suspension from medical residency program.

     A medical resident stopped and ticketed for driving with expired license plates was angry over what he perceived as the "rude and threatening" attitude of the officer, and he called the police department to lodge a complaint against the ticketing officer. The dispatcher who answered his call told him, in a conversation recorded on tape, that there was no one available to take his complaint, whereupon the doctor became angry, cursed at the dispatcher, and told her that if any of the township's officers came into "his emergency room," he would "spit on [their] asses."

     Several days later, he stopped by the police station and had a discussion about the ticket. When the acting police chief realized that he was the same person who had cursed at the dispatcher over the phone, he asked the doctor for an apology and where he worked. The doctor lied about his place of employment, and allegedly again made statements regarding how he hoped that no township police officers ever came into "his emergency room."

     Police personnel allegedly decided that the doctor sounded like he might be a potential danger in the workplace because of his temper and his behavior of issuing what they took to be threats, so the acting police chief, after discovering the doctor's true workplace, reported the prior incidents to the hospital, and later met with the doctor's supervisors, playing for them the tape of the doctor's conversation with the dispatcher.

     The hospital subsequently suspended the doctor from its residency program, giving him a choice of either resigning immediately or appealing the decision to remove him permanently from the program. He appealed and ultimately had to continue his residency at a different hospital and complete two additional years of residency. He claimed that this cost him a loss of $150,000 to $200,000 in earnings.

     The doctor filed a federal civil rights lawsuit against the acting police chief and the township, contending that the action of contacting his employer was an act of unlawful retaliation against speech protected by the First Amendment.

     Upholding summary judgment for the defendants, a federal appeals court found that the decision to remove the doctor from the residency program was made by the hospital, not the police, and that it was based on other factors in addition to the police report to the plaintiff's employer.

     Additionally, however, the court reasoned that even if the medical resident engaged in First Amendment protected speech when he cursed at or threatened township police, he certainly had no "First Amendment right to have the police maintain silence about the incident rather than contacting his employer.

     Essentially, the court noted, the doctor "proposes that we hold that police officers who suffer verbal abuse at the hands of a citizen have an obligation to refrain from mentioning the incident, even when, as appears to be the case here, the officers relate the incident to others with truth and accuracy. This proposition lacks a basis in either law or prudence."

     Cohen v. Smith, #01-1666, 58 Fed. Appx. 139 (6th Cir. 2003).

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Pedestrian struck by police department motor scooter in mall area of public park was properly awarded $5,795,015 in damages when expert testimony showed that her brain injuries placed her at risk for Alzheimer's disease, epilepsy, seizures and dementia.

     A 43 year-old female stock exchange employee in New York was taking an early evening walk along a pedestrian promenade in a public park. The promenade is closed to all private motor vehicles. She was struck and serious injured by a police officer riding a motor scooter along the promenade in order to get to a post where he was to assist in traffic control for a five-kilometer race.

     The injured woman sued the city for personal injuries on the basis of negligence. There was testimony in the case that the speed limit for park department vehicles traveling along the promenade is five miles per hour, and that there were approximately 1,000 people in the mall area where the accident occurred. The officer testified that he was traveling at approximately 10-15 miles per hour when he first saw the plaintiff 80 feet in front of him and blew his horn.

     The plaintiff allegedly turned to face him and he swerved, but not enough to avoid her, resulting in a "heavy" collision. The officer himself suffered three broken ribs, a chest contusion, and chip fractures of the elbow, and missed 100 days of work.

     The jury awarded the plaintiff $6,328,000 of which $2,500,000 was for pain and suffering, $56,000 for past lost earnings, and $10,000 for loss of household services. The award also included $3,762,000 in future damages, including $2.5 million for pain and suffering for the next 30 years, $132,000 for psychological therapy for 15 years, $180,000 for physical therapy for 30 years, $250,000 for loss of household services for 30 years, and $700,000 for reduction in earnings capacity for 15 years.

     The trial court reduced the award for future earnings loss to $167,015, resulting in a total award of $5,795,015. It also rejected the defendants' argument that they should have been permitted to cross-examine the plaintiff about her medical coverage or that it was an error to allow the plaintiff to introduce the bill for scooter repairs into evidence as irrelevant and prejudicial.

     "Remarkably," the appeals court later noted, "15 months after the accident, the city sent plaintiff an invoice for $960, representing the amount of damage to the scooter as the result of the accident. We assume plaintiff declined to pay this bill."

     An intermediate New York appellate court upheld the resulting award in its entirety.

     The court found that the award of $2.5 million each for past and future pain and suffering was not a "material deviation" from reasonable compensation, considering that the plaintiff suffered multiple skull fractures resulting in brain damage, memory loss, permanent and progressive loss of abilities, and continuing problems with vertigo. She also suffered permanent termination of her sexual relationship, anxiety, depression, seizures, and a herniated disc.

     There was also expert witness testimony in the case that her brain injuries placed her at risk of later suffering Alzheimer's disease, epilepsy, dementia, and seizures.

     The appeals court also held that allowing the defendants to inquire into the plaintiff's medical insurance was proper, because any "probative value" of this evidence was outweighed by its prejudicial effect. The plaintiff had offered evidence, through two doctors, that she would have benefited from certain therapies, but that these were not pursued because of financial problems. In response to the defendants' questions about her insurance in response to this evidence, the appeals court ruled, the trial judge properly sustained an objection, and instructed the jury that "there was some reference to insurance. Do not consider insurance. That is not an issue in this lawsuit."

     Reed v. City of New York, 757 N.Y.S.2d 244 (A.D. 1st Dept. 2003).

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Parents who allegedly allowed their fugitive son access to their home and helped him avoid arrest owed a duty to a police officer their son subsequently shot and killed while trying to avoid apprehension to safely store and secure their handgun, which was used in the killing.

     The estate of an Indiana police officer shot and killed by a fugitive who was attempting to avoid apprehension sued the fugitive's parents on the theory that they were liable for the death because of their negligent storage of a handgun in their home which the fugitive used in killing the officer, while himself dying in the shootout.

     Overturning summary judgment for the defendant parents, the Supreme Court of  Indiana held that the parents did have a duty to the deceased officer to use reasonable and ordinary care to safely secure and store their handgun.

     The court rejected arguments that a duty of this nature was barred by the right to bear arms under the Indiana state constitution.

     Evidence in the case showed that in the months before the killing, the parents helped their son, who was an adult, avoid arrest, allowing him to "hide out" at their lake cottage, as well as allowing him to retain the keys to their home. His father also notified him of a tracking device the police had placed on his vehicle.

     The Indiana Supreme Court noted that the parents were gun owners and parents of a "drug-addicted felon fleeing from police, to whom they gave unrestricted access to their home where they kept a handgun."

     There was evidence that the parents were aware of their son's lengthy criminal history, and he had, in fact, committed crimes against them. When their grandchildren visited, they hid the handgun in the attic, and after their son was released from prison, they took "extra precautions" to secure their cash, checks and other valuables, based on his "track record" of stealing from family members. They exercised care to protect their grandchildren and valuables, the court commented, but failed to safeguard the gun from "a mentally disturbed, habitual and violent offender [with] free access to the premises." This was evidence that the harm which occurred might have been foreseeable.

     The court also found that public policy in preventing the theft of guns and their use in murders and other crimes was implicated in the case. "Over a quarter million firearms are stolen each year, and this arsenal is used in thirty-five percent of the crimes involving guns." Accordingly, "public policy supports recognition of a duty in this case" to safely store firearms.

     The court found that there was a genuine issue of material fact as to whether the parents stored their handgun in a reasonable manner in this case. It was alleged that they kept it between the cushions of a chair in their bedroom," and it "remains to be seen whether this constituted reasonable and ordinary care in this situation." They argued that they did not show their son where the gun was hidden, but the court found that "this is not dispositive. The question is whether leaving a loaded handgun in a hidden but accessible location was reasonable under these facts."

     Estate of Heck ex Rel. Heck v. Stoffer, 786 N.E.2d 265 (Indiana 203).

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Use of hog-tie restraint against arrestee who had a head wound and had been sprayed with pepper spray, and was also allegedly compliant at the time of the restraint, was an excessive use of force, and officers were not entitled to qualified immunity from possible liability for arrestee's subsequent death from positional asphyxia. There was also evidence to show that county officers widely used hog-tie restraints but that no training in the use of such restraints was provided.

     A motorist led an officer on a chase through several counties after refusing to comply with a requested traffic stop for a tail light violation. Others joined the chase, which lasted from 45 minutes to an hour, until one of the officers forced the motorist's vehicle off the road and into a ditch. A struggle ensued, during which an officer struck the motorist in the head with his gun, other officers struck him with a baton or flashlight, and the motorist was handcuffed with his wrists in front of his body.

     As the motorist continued to struggle, he was sprayed with O.C. spray (otherwise known as pepper spray), and within a few seconds, he became compliant. After that, the officers re-cuffed the motorist's hands so that they were positioned behind his back and finished restraining him using the hobble or hog-tie method. He was carried back to the roadside in the hobble or hog-tie position so that his chest and face were hanging down. An officer checked to see that the arrestee had a pulse. One of the officers called for an ambulance and did not check on the arrestee again until the ambulance arrived.

      The paramedics found the motorist "in distress and still bound," directing the officers to remove his restraints and transported him to a medical center where he was pronounced dead. The cause of death was listed, after an autopsy, as "positional asphyxiation ('hog tie restraint')." The autopsy report also stated that "this death occurred in police custody and was the direct result of being restrained in a 'hog-tied' fashion." The autopsy also found methamphetamine in the motorist's system and listed the drug as a significant contributing factor in the death.

     The decedent's estate sued the county and the individual officers involved in the arrest, asserting claims for excessive use of force. Rejecting motions for summary judgment by the defendants, the trial court ruled that:

* The use of the hog-tie restraint against an arrestee who had a head wound and had been sprayed with pepper spray, and was also allegedly compliant at the time of the restraint, was an excessive use of force;

* The individual defendant officers were not entitled to qualified immunity and should have known that the use of force against an arrestee after he is compliant is unconstitutional;

* There were triable issues as to whether the county police department's training program on restraint techniques was inadequate.

    There was sufficient evidence to show that the county had "widespread custom of using the hog-tie restraint on suspects," and officers testified that they had regularly observed other officers employ the hog-tie or hobble restraint in the field. That, of course, the court commented, did not automatically mean that there was a widespread "unconstitutional" use of the hog-tie restraint so as to impose municipal liability.

     But there was an admission that the county did not provide their officers with training in the hog-tie restraint technique or the dangers of positional asphyxiation, despite evidence from the plaintiff that studies and bulletins on the dangers of positional asphyxiation and the hog-tie restraint method "were so widespread in the law enforcement community as to give" the county notice of the dangers of hog-tying. There was therefore sufficient evidence on which to infer that the lack of a training program on such restraints "constituted an inadequate training program."

     Garrett v. Unified Government of Athens-Clarke County, 246 F. Supp. 2d 1262 (M.D. Ga. 2003).

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Police officer and police legal advisor did not violate the due process rights of a 19-year-old mentally disabled girl by returning her, upon her request, to the home of a 39-year-old man she met over the Internet who she described as her boyfriend. They did not know that he had allegedly repeatedly raped her or that he would allegedly do so again after she was returned to his home, and they had no authority to detain her.

     A 19-year-old mentally disabled girl living with her parents in Pennsylvania, who was not under a formal guardianship, began talking online with a thirty-nine year-old man who misrepresented himself as a disabled 18-year-old and encouraged her to come visit him in another state. She left home before dawn one morning, taking a series of cabs and buses to reach him. Once at his home, he allegedly repeatedly raped her.

     Her parents began searching for their daughter, found an e-mail on the computer from the man, and with the assistance of the police and America Online, traced it to a physical address in Akron Ohio. The Akron police dispatched officers to the man's home to pick the daughter up. When they met the man and daughter at his residence, they convinced her to come with them to the police station.

     The daughter spoke "favorably" about the man, calling him her boyfriend, and repeatedly asking to call him and to be returned to his residence. She never mentioned having had sex with him or that he had hurt her in any way, but did make remarks suggesting that she had left Pennsylvania to escape abuse from her parents. After questioning by a police detective and a victims advocate, it was concluded that the daughter faced no risk of harm.

     The officer had a discussion with a prosecutor who served as a police legal advisor concerning whether he should hold the daughter until her parents, on the way, arrived in town. He was advised that the police had no legal authority to detain the daughter, and should therefore release her if she insisted on leaving. She was not a minor, and the officer had no paperwork confirming either her mental disability or that she was under a guardianship.

     The daughter requested that she be returned to the man's residence and officers took her back there. When her parents arrived in town, they picked her up from the man's residence and allegedly learned that she had been repeatedly raped by the man, both before and after she had been picked up by the police. Based on an examination of her at a hospital, rape and kidnapping charges were later filed against the man.

     The parents filed a federal civil rights lawsuit against the City of Akron, the police officer, and the police legal advisor, claiming that they violated their daughter's substantive due process rights as well as the parents' constitutional rights to the companionship of their daughter. The claims against the city were based on an alleged failure to adequately train the officer and legal advisor.

       The trial court found no evidence to support the failure to train claim, but it denied qualified immunity to the officer and legal advisor.

      A federal appeals court found that the denial of qualified immunity was erroneous, since the plaintiffs had not made out a viable claim for the violation of constitutional rights.

     The defendants knew that the daughter had some mental disability and had traveled hundreds of miles to meet a man that she had conversed with on the internet, but there was no evidence that they knew the extent of her disability, that she had previously been raped by the man, or that the man was dangerous. Additionally, she had requested to be returned to him, and had led them to believe that the man was her boyfriend and that it was her parents, not him, who had abused her.

     The individual defendants, had they detained the daughter, may have faced a different lawsuit based on false imprisonment, the appeals court commented.

     While the court acknowledged that its ruling may seem like a "harsh result," it stated that officials have a constitutional obligation only to "refrain from actively increasing an individual's susceptibility to private violence. They do not have a constitutional obligation to prevent such violence."

     Under these circumstances, the officer and legal advisor did not have any constitutional or state law authority to continue to hold the daughter in custody. Their action in returning her to the man's residence, upon her request, did not violate her substantive due process rights, barring any lawsuit against the officer, the legal advisor, or the city, including the claim against the city for failure to train.

     Bukowski v. City of Akron, No. 01-4248, 326 F.3d 702 (6th Cir. 2003).

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Police department was not liable for allegedly failing to take action to prevent a workplace shooting after receiving a phone call from a workplace manager reporting a threat of violence to employees. City had no constitutional duty to investigate any particular threat of violence made by private persons.

     Two employees at a manufacturing plant in Indiana suffered injuries during a fatal shooting spree by a co-worker. They filed a federal civil rights lawsuit claiming that the city, through its police department, violated their constitutional right to liberty by not acting to prevent the shooting, despite the fact that the police received a call from the plant manager reporting that there had been a threat of violence to plant employees.

     The shooter had gotten into a fight with another employee, and on his way out of the plant after the fight threatened to return to "do bodily harm." The plant manager reported this threat to the police department, and told them that he was particularly concerned because he knew that the threatening employee had access to guns. The person who answered the phone at the police department allegedly told him that the police would not get involved until and unless the employee harmed someone. Later that day, the employee returned to the plant, shot and killed the plant manager, and shot and wounded the two plaintiff co-workers and several other employees. The shooter also died during the shooting spree.

     Upholding dismissal of the lawsuit, a federal appeals court noted that the police department had not created or increased the dangers faced by the shooting victims, and that there is no constitutional duty, on the part of a city, to provide protection against or to investigate particular threats of violence made by private persons.

     The plaintiffs could not pursue a claim that their constitutional rights were violated when the city failed to come to their aid despite knowing that they were at risk of harm. A governmental entity's failure to protect private persons "from injuring each other does not establish a constitutional violation."

     Hernandez v. City of Goshen, #02-3268, 324 F.3d 535 (7th Cir. 2003).

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Officer may have had a duty to protect a woman who called 911 when she was restrained in her apartment by an attacker, but his decision, in investigating the call, to knock, look in a window, and leave when he received no response was not unreasonable.

     The estate of a woman restrained in her apartment by an attacker, and murdered later that night, after a police officer responding to a 911 call for help knocked, looked through a window, and then left without forcing entry, sued the officer and the county which provided the 911 service, along with other officials. The complaint claimed that the defendants violated the decedent's substantive due process rights and her right to equal protection in not protecting her against her assailant.

     A federal appeals court overturned the denial of the defendant officer's motion for dismissal on the basis of qualified immunity.

     The court noted first that the decedent, who allegedly called 911 for assistance, was not in the custody of the county or the officer at the time she was injured or subsequently murdered. The county also did not do anything which "affirmatively prevented" her from taking action to protect herself.

     The court also rejected the argument that the county had created some kind of "special relationship" with the decedent by its decision to operate a 911 phone system, imposing a duty to protect her against this specific harm.

     The appeals court did find, however, that the complaint sufficiently alleged that the officer had a duty to protect the decedent after allegedly "emboldening" the assailant inside the apartment by going there, knocking, and then leaving.

     The plaintiff argued that the officer's arrival, "minimal investigation," and subsequent departure were "affirmative acts that emboldened" the attacker to hurt the decedent. If true, this imposed a duty of protection. But the court also found that the applicable standard for liability was whether what the officer did "shocks the conscience," and that it did not "shock the conscience" under these circumstances.

     The officer only was informed by the dispatcher that he was responding to a "good domestic." He did not know if there was anyone present in the apartment, and he did not have a warrant to enter. His conclusion, after knocking and receiving no response, that there was nothing likely happening in the apartment and that its occupants had left, as well as that a forced entry would be both unnecessary and unwelcome was not unreasonable.

     "His actions do not even indicate a deliberate indifference to [the crime victim's] welfare, the standard that would be applied were this a custodial situation, where qualified immunity is less easily granted," the court commented. The officer's decision to investigate the call but not to force entry was "reasonable."

     May v. Franklin County Bd. of Com'rs, No. 01-4000, 59 Fed. Appx. 786 (6th Cir. 2003).

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African-American motorist did not show that police officer's traffic stop of her vehicle was racially motivated. The officer had grounds to stop her based on observations of her vehicle crossing the center line of the highway, and there was no evidence that similarly situated persons of another race were not stopped and ticketed.

     An African-American motorist claimed that a police officer's traffic stop of her vehicle was not really based on a traffic violation but was because of her race, and because she was driving a 1996 Lexus automobile.

     Rejecting this claim, and ordering summary judgment for the defendant officer on the plaintiff's federal civil right claim, a federal appeals court found that the officer's alleged observation of the motorist's car crossing over the highway's center line on multiple occasions provided a sufficient basis for him to have an objectively reasonable suspicion that she was engaging in criminal activity.

     There was no violation of the motorist's Fourth Amendment rights, as driving while excessively fatigued and crossing the center line of the highway were both violations of state law. The appeals court also noted that any traffic violation, including minor ones, provide a police officer with grounds to stop a motorist, and that any "ulterior motivation" on the officer's part is irrelevant.

     The plaintiff motorist failed to provide evidence that similarly situated persons of a different race were not stopped and ticketed, which would demonstrate discriminatory effect and purpose as required for an equal protection violation.

     Johnson v. Crooks, No. 02-1915, 326 F.3d 995 (8th Cir. 2003).

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Officer was not required to express his concern to a judge issuing a search warrant for the search of a home in a drug activity investigation when there was no evidence that any doubts he had about the informant's information were serious. Failure to acknowledge, in affidavit for the warrant, that the informant had given different numbers regarding the amount of cocaine he allegedly distributed for the suspect did not eliminate probable cause for the warrant.

     In an investigation of a suspect for being the head of a drug distribution organization, two informants came forward with information. One said that he had previously been a member of the organization for seven years and had picked up drugs from the suspect's home in the past, seeing up to one kilogram of cocaine there. The second informant provided a statement that he had dealt five pounds of marijuana a week for the suspect for several years. Investigating officers, in an attempt to corroborate these statements, searched the suspect's garbage and several items tested positive for the probable presence of cocaine.

     One of the officers then obtained a search warrant for the home, relying, in his affidavit, on the field tests and the statements obtained from the two informants. The warrant issued and the search was carried out with the assistance of a Tactical Response Team, since it was deemed a "high risk" search.

     Two occupants of the house were eventually charged with possession of a controlled substance, unlawful use of weapons, and possession of drug paraphernalia on the basis of the results of the search, but these charges were later all dismissed. Four occupants of the house then sued for unlawful search and seizure.

     A federal appeals court upheld summary judgment for the defendant officers.

     While it agreed that statements by one of the two informants used were "stale," his involvement in the suspect's alleged drug activities having ended three years before, it found that the affidavit for the warrant supported probable cause even if his statements were totally disregarded.

     The appeals court also rejected the argument that the affidavit was defective regarding the statements of the other informant in failing to point out to the judge that he had given different numbers regarding the amount of cocaine he had allegedly distributed for the suspect, and that he had provided information to get favorable treatment on his pending criminal aggravated battery charge, and that he was initially released from jail without posting bond.

     The appeals court noted that, while the informant did provide different figures during the interview for the amount of drugs distributed, he also claimed that the amount delivered varied and was dependent on need. He also ultimately settled on approximately 27 ounces per week. When weighed against the rest of his "detailed, corroborated, self-incriminating, first-hand accounts" of the suspect's alleged drug distribution activities, the officer's failure to include the information about the fluctuating cocaine amounts in the affidavit "did not affect the probable cause equation."

     The appeals court also found that the officer had no obligation to express "doubts" concerning certain aspects of the informant's story to the judge who issued the warrant, in the absence of any indication that they were "serious" doubts or should have expressed "serious" doubts on the basis of the knowledge he had at the time.

     The affidavit was also clearly strengthened by the lab tests of the items from the suspect's garbage, which tested positive for drugs.

     The informant's desire to "make a deal," and the failure of the officer to mention this in the affidavit for the warrant, the court found, "was not essential to the probable cause determination." While the court did not suggest that an informant's motive "can never be a factor in assessing whether probable cause exists," it did point out that "courts are aware that informants are frequently facing charges and hoping for deals." In this case, the informant's testimony was sufficiently reliable that probable cause would have been found even if the informant's motive had been included.

     The field tests and the second informant's statements about the suspect's drug involvement were sufficient for a reasonable officer to believe that probable cause existed to apply for a search warrant.

     The appeals court also held that a 5 to 12 second wait between the officers' knock and announce and entry into the home to serve the search warrant was reasonable under the Fourth Amendment when the officers had information that the suspect owned weapons and had a "violent criminal history."

     Molina Ex Rel. Molina v. Cooper, #02-1995, 325 F.3d 963 (7th Cir. 2003).

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Federal appeals court upholds award of $1 in nominal damages and $7,428 in attorneys' fees against city which allegedly took no action and began no investigation of woman's complaints to police chief and mayor that a police officer with whom she had broken off an affair was harassing her and stalking her while on the job and in uniform. Attorneys' fee award, court states, should put police departments and cities "on notice" that they cannot simply ignore such complaints.

     The wife of a city's chief of police began a consensual extramarital affair with an officer in the department, and, after two months, decided that she did not want to continue it, and told him so. The officer allegedly refused to consider the affair over and "continued to stalk" her. He would allegedly drive behind her while in uniform and driving a police squad car, turning on his lights and siren and pulling her over. He would allegedly accost her and demand that their relationship continue.

    The wife told her husband about the affair, which allegedly disturbed him so greatly that he had to leave his job. The officer allegedly continued to follow the wife following that, despite her repeated statements that she no longer wanted to see him. She complained to the acting police chief, who supposedly told her that he was "not in a position to do anything," and that she should talk to the mayor. The mayor allegedly told her that he was not going to become involved in the police department's internal affairs.

     The city allegedly took no formal action and began no formal investigation on the basis of her complaints, and the officer allegedly only stopped harassing her after her husband physically assaulted him. The wife filed a federal civil rights lawsuit against the city and the officer.

     The jury returned a verdict in favor of the officer, but found that the city had violated the plaintiff's rights and awarded her one dollar in nominal damages. The trial court awarded the plaintiff $7,428.25 in attorneys' fees and costs against the city.

     A federal appeals court upheld this result.

     The appeals court rejected the city's argument that the trial court's instructions to the jury were erroneous. The city primarily argued that the error was in telling the jury that it need only find that the plaintiff proved that the city officials did not respond to her complaints about the officer's alleged sexual harassment and stalking. The city argued that the proper instruction would have required the plaintiff to prove that her "claims had some merit" and that the city did not respond to her meritorious claims. It also argued that a proper instruction should require a connection between proof of a damage and the city's omissions, as well as requiring a constitutional violation to be established.

     The appeals court found that, read as a whole, the jury instructions required the plaintiff to establish more than mere inaction on the part of the city. She had to prove that city officials deliberately chose to ignore her allegations regarding the officer, and that this proximately caused her mental distress and other psychological injuries. While the instructions given were "not models of clarity," they did imply that the plaintiff "had to prove her allegations had some merit."

We believe that instructing the jury to specifically find her claims meritorious would be redundant and unfairly prejudicial.

     The appeals court reasoned that the jury must have found merit in the plaintiff's allegations, or it would not have found that she was injured.

     The appeals court also found no abuse of discretion in the award of attorneys' fees, despite the fact that the plaintiff was only awarded nominal damages. The court found that the difference between the amount that the plaintiff sought, $500,000, and the amount she received, $1, was "not an outrageous split." Second, "we believe compelling city officials to make at least cursory investigations into serious allegations of police abuse and misconduct are significant legal issues."

     Finally, it found that an award of attorneys' fees in this case would serve a "clear public policy":

[P]olice departments and cities should be on notice that they cannot ignore allegations of sexual harassment and other abuses.

     The amount of attorneys' fees awarded was already reduced to half of the plaintiff's request to reflect the fact that they city prevailed in its defense of the individual officer.

     Murray v. City of Onawa, Iowa, No. 02-2626, 323 F.3d 616 (8th Cir. 2003).

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

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Assault and Battery: Physical

     Deputies who were busy with other things in arrestee's residence when a fellow officer allegedly struck arrestee across the face and nose with a flashlight while she was restrained on the floor could not be held liable when they had no reason to anticipate this action nor could they have intervened in time to prevent it. Dixon v. Campbell, No. 02-1260, 58 Fed. Appx. 180 (6th Cir. 2003).

Attorneys' Fees: For Plaintiff

     Federal trial judge abused his discretion by issuing a ruling on an attorneys' fee petition in a settled civil rights lawsuit over wrongful arrest and illegal search of a residence, since the settlement agreement provided that the issue of attorneys' fees would be decided through mediation and resolution under the guidance of a magistrate judge. Settlement provided for a $100,000 payment to the plaintiff, and trial judge reduced plaintiff's attorneys' fees request by 70% from $291,358.75 to $87,407.62, along with granting $18,707.31 in costs. Hatcher v. Consolidated City of Indianapolis, No. 01-3550, 323 F.3d 513 (7th Cir. 2003). [PDF]

     Arrestee who was awarded $2 in damages by a jury on his claim for violation of his First Amendment rights based on his arrest while he was protesting on the steps of city hall was not entitled to attorneys' fees, particularly when he previously declined two separate offers of judgment from defendant officers, requested $10,000 in damages, and lost his claim against the municipality and his claim for punitive damages. Pouillon v. Little, No. 01-1619, 326 F.3d 713 (6th Cir. 2003).

Damages: Punitive

     U.S. Supreme Court holds that a punitive damages award of $145 million was excessive in a case where the compensatory damages were $1 million. Such a disproportionate award of punitive damages violates the Due Process Clause of the Fourteenth Amendment. Courts reviewing punitive damages should consider: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co. v. Campbell, #01-1289, 123 S. Ct. 1513 (2003). [Editor's Note: While this case arose in a non-law enforcement context, the reasoning would also apply in a law enforcement case in which an award of punitive damages was being reviewed. See Waits v. City of Chicago, No. 01C4010, U.S. Dist. Ct. N.D. Ill. June 6, 2003, reported in Chicago Daily Law Bulletin, p. 1 (June 9, 2003), reported elsewhere in this issue.].

Defenses: Absolute Immunity

     Prosecutor was entitled to absolute immunity for alleged suppression of exculpatory evidence in criminal prosecution and alleged instructions to witness to falsely implicate defendant during murder trial. Federal appeals court rejects argument that it should adopt an exception to prosecutorial immunity for "egregiousness" in cases of "drastic and systematic departure" from the proper exercise of prosecutorial power. Cousin v. Small, No. 01-30745, 325 F.3d 627 (5th Cir. 2003). [PDF]

Defenses: Absolute Judicial Immunity

     Montana Supreme Court overturns, as erroneous, its prior decision that judicial and quasi-judicial immunity provided local governmental units in that state immunity from liability under 42 U.S.C. Sec. 1983, overruling Reisdorff v. County of Yellowstone, 989 P.2d 850 (Mont. 1999). Miller v. City of Red Lodge, No. 01-517, 65 P.3d 562 (Mont. 2003).

Defenses: Collateral Estoppel

     When the trial court found, in a criminal proceeding, that probable cause existed for the defendant's arrest, she was barred by "issue preclusion," (the defense of collateral estoppel) from asserting in a subsequent federal civil rights lawsuit following her acquittal on the underlying charges that she was illegally arrested without probable cause. Crumley v. City of St. Paul, Minn. No. 02-1257, 324 F.3d 1003 (8th Cir. 2003). [PDF]

Defenses: Eleventh Amendment Immunity

     Florida State Department of Highway Safety and Motor Vehicles is an agency of the state and cannot be sued for damages under 42 U.S.C. Sec. 1983. "Neither a state nor its officials acting in their official capacities are 'persons' under Sec. 1983," the court noted, citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Dickinson v. Gonzalez, No. 3D00-927, 839 So. 2d 709 (Fla. App. 3d Dist. 2003). [PDF]

Defenses: Service of Summons

     Plaintiff arrestee, serving as his own lawyer, showed sufficient good cause grounds for extension of time for the service of a summons on the arresting officer when process server could not obtain officer's home address, attempted to serve the officer at work several times, and was always told that the officer was not on duty, and eventually left the summons with another officer on duty who represented that he was authorized to accept service of process for the police department. Officer's motion to dismiss for failure to serve summons was therefore denied. Elkins v. Broome, 213 F.R.D. 273 (M.D. N.C. 2003).

Defenses: Statute of Limitations

     Arrestee's state law false arrest and intentional infliction of emotional distress claims accrued on the date of his arrest and his federal civil rights claim for arrest without probable cause accrued, at the latest, on the date he was sentenced, rather than on the date that his conviction was subsequently invalidated nine years later. Arrestee's claims were all time-barred under two year Illinois statute of limitations. U.S. Supreme Court decision in Heck v. Humphrey, 512 U.S. 477 (1994), holding that a federal civil rights claim for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated did not apply to claims for damages resulting from false arrest not made pursuant to a warrant, the court stated, citing Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001). Day v. Conwell, 244 F. Supp. 2d 961 (N.D. Ill. 2003).

Expert Witnesses

     Psychiatrists were qualified to testify as expert witnesses as to the psychological impact on juveniles attending a basketball tournament of allegedly unlawful detentions and searches of them by police officers. Since psychiatrists did not need forensic training or board-certification in child psychology to treat juveniles, their lack of these qualifications did not bar them from testifying. Psychiatric team leader who relied on data collected by a team member and did not himself personally examine the civil rights plaintiffs could testify as to his opinion. Williams v. Brown, 244 F. Supp. 2d 965 (N.D. Ill. 2003).

False Arrest/Imprisonment: No Warrant

     Police officer had sufficient probable cause to arrest a student on a charge of unlawfully carrying a deadly weapon onto school grounds based on school security guard's finding of a knife and gun in the student's car in the parking lot, where the officer was a bystander. Butler v. Rio Rancho Public School Board of Education, 245 F. Supp. 2d 1203 (D.N.M. 2002)

     State trooper was entitled to qualified immunity for arresting a motorist who refused to sign a reckless driving citation he issued after observing the driver speeding in a large tractor truck on an interstate highway in an area with hazardous conditions. Driver's subsequent acquittal of reckless driving did not alter the result, as the trooper could reasonably have believed that the charges were justified. Wood v. Kesler, No. 01-15827, 323 F.3d 872 (11th Cir. 2003).

False Arrest/Imprisonment: Warrant

     Arrestee could not pursue a federal civil rights claim based on her arrest under a facially valid warrant after county sheriff's office warrant clerk allegedly entered incorrect information into the National Crime Information Center (NCIC) database, confusing the arrestee's date of birth and social security number with those of another person with the same first and last name and middle initial. Negligence alone is not enough for a federal civil rights claim. Johnson v. Scotts Bluff County Sheriff's Dept., 245 F. Supp. 2d 1056 (D. Neb. 2003).

Freedom of Information

     Freedom of Information Act (FOIA) exemption permitting the withholding of personnel, medical and similar files which would invade personal privacy did not apply to documents including reporter's typed notes of interview with organization members and another document explaining how the notes were distributed to the FBI, since those interviewed knew they were speaking to a reporter, so there was no expectation of privacy. Government could properly remove names and identifying marks of FBI agent and IRS employee from documents requested under exemption for information compiled for law enforcement purposes. Billington v. U.S. Department of Justice, 245 F. Supp. 2d 79 (D.D.C. 2003).

Governmental Liability: Policy/Custom

     Insufficient evidence existed to show a "custom" of burglaries by police officers, so that claims against city for liability for officers' burglary of plaintiff's home were appropriate. There was also no showing that city policymakers had shown deliberate indifference to the need to properly train and supervise police officers. Hernandez v. Borough of Palisades Park Police Department, No. 02-2210, 58 Fed. Appx. 909 (3rd Cir. 2003). [PDF]

Malicious Prosecution

     Arrestee allegedly misidentified as seller of drugs in undercover drug "buy" by police officers did not show that police officers failed to follow their standard operating procedures for identification, and therefore could not pursue her malicious prosecution claim against the state of New York, since nothing supported her assertion that the officers acted intentionally or recklessly in misidentifying her. Harris v. State of New York, 756 N.Y.S. 2d 302 (A.D. 3rd Dept. 2003). [PDF]

Off-Duty/Color of Law

     Deputy sheriff's alleged sexual abuse of his stepdaughter over a two and a half year period could not be the basis for holding the county vicariously liable for his actions under California state law, as he was not acting within the scope of his employment in doing so. K.G. v. County of Riverside, No. E030933, 131 Cal. Rptr. 2d 762 (Cal. App. 4th Dist. 2003). [PDF] (also available in Microsoft Word .doc format).

Police Plaintiff: Vehicle Related

     Police officer badly injured in vehicle collision with speeding hearse receives $10 million settlement. Data retrieved from "sensing and diagnostic module" in hearse, a "black box" data recorder increasingly becoming standard equipment in many commercial vehicles and luxury cars, proved that the hearse was going 63 miles per hour within two seconds of the impact despite a 45 mile per hour speed limit, and that the driver's braking only slowed the hearse down to 53 mph at the time of the impact. Tiedje v. Weinstein Brothers, Inc., No. 00L12335 (Circuit Court of Cook County, IL.), reported in The National Law Journal, p. A4 (April 21, 2003).

Police Plaintiff: Wrongful Death

     Estate of police investigator stabbed to death by outpatient from county mental health clinic could pursue claims against county based on alleged negligence in the monitoring and treatment of outpatient. Padula v. County of Tompkins, 756 N.Y.S.2d 664 (A.D. 2003). [PDF]

Procedural: Amendment of Complaint

     Arrestee pursuing federal civil rights claim against town and police officer arising out of his arrest and conviction for violation of a town ordinance could not seek, in the same proceeding, administrative review of his conviction, since state law requires filing for such review within 35 days. Doctrine in federal court that an amended complaint "relates back" to the date of the original filing date of the complaint could not be used to circumvent this time limit, and therefore state law claims in the lawsuit, which depended on the arrestee successfully challenging his conviction of the town ordinance, should be dismissed. Almanza v. Town of Cicero, 244 F. Supp. 2d 913 (N.D. Ill. 2003).

Procedural: Police Records/Reports

    Community group was entitled to access to disclosure of city police department records pertaining to civilian complaints of police misconduct, under Rhode Island statute, and trial court could waive costs of retrieval and award group reasonable attorneys' fees. Police chief was entitled however, to exclude Social Security numbers and badge numbers of police officers against whom complaints had been received. Direct Action for Rights and Equality v. Gannon, Nos. 99-22-Appeal, 819 A.2d 651 (R.I. 2003).[PDF]

     Defendant in cocaine possession case did not present a plausible factual basis for his claim of police misconduct sufficient to provide good cause for discovery of confidential police personnel files of the officers involved in his arrest. Warrick v. Superior Court, No. B160462, 132 Cal. Rptr. 2d 810 (Cal. App. 2003).

Search and Seizure: Home/Business

     Federal appeals court overturns jury award of damages to three bystanders detained by police during search of commercial building by police under search warrant and of damages to building owner for property damage during search. City could not be liable to bystanders, as there was no showing that there was a municipal policy or custom of detaining innocent bystanders to searches for an unreasonably long period of time. Damage done to building during search, which amounted to less than $500, did not amount to a "taking" for purposes of the Fifth Amendment, and building owner had no reasonable expectation that the building would remain free of legal searches. Two-hour deprivation of access to the building could not be the basis for a claim for damages either. Jones v. Philadelphia Police Department, No. 01-4202, 57 Fed. Appx. 939 (3rd Cir. 2003). [PDF]

Wrongful Death

     Georgia Supreme Court holds that, under state law, a parent of an adult child murdered by his surviving spouse can pursue a wrongful death claim against the alleged murderer or against "other parties" that proximately caused the death, answering a question certified to it by the U.S. Court of Appeals for the Eleventh Circuit in a case where the murdered son's mother asserted state wrongful death claims against the wife, a police chief, and the city. The claims against the city and police chief were based on the fact that the alleged murderer was a police captain who had previously attempted suicide. The police chief had ordered her to remove all weapons from her home, but did not relieve her of her duties, and she used her service revolver to shoot and kill her husband. Carringer v. Rodgers, No. SO2Q1483, 578 S.E.2d 841 (Ga. 2003).

       AELE's list of recently-noted civil liability law resources.

     Article: "Police Response to Anonymous Emergency Calls," by Michael L. Ciminelli, J.D., Chief of the Domestic Criminal Law Section, DEA, 72 FBI Law Enforcement Bulletin No. 5 pgs. 23-32 (May 2003). [PDF] Also available in .html format.

     Chart: Revised U.S. Department of Justice Organization Chart, last updated 04/29/03. Includes links to on-line websites for major components.

     Publication: Mediation Programs Mediating Citizen Complaints Against Police Officers: A Guide for Police and Community Leaders addresses the implementation, expectations, and evaluation of mediation programs. The mediation process focuses on solving problems by understanding the conflict and the stakeholders involved, not on placing blame. Mediation programs have been successful in settling disputes, but implementing them can be difficult. This Office of Community Oriented Policing Services guide by Samuel Walker, Carol Archbold, and Leigh Herbst examines how to deal with implementation obstacles and how to overcome police and citizen resistance to a mediation program. It also reviews a successful mediation process for communities considering developing a mediation program. Key issues, such as eligibility, cultural barriers, and creating a level playing field between the police and those involved in the conflict, are discussed. For availability and ordering information, contact the U.S. Department of Justice Response Center at 800-421-6770 or access the guide electronically. [PDF]

     Publication: Protecting Your Community From Terrorism: The Strategies for Local Law Enforcement Series. The first of a series of five white papers to address local law enforcement concerns in preventing and preparing for terrorist acts. Police Executive Research Forum (PERF) (March 2003) 120 pages. [PDF].

     Publication: "Research for Practice, Factors That Influence Public Opinion of the Police," by Cheryl Maxson, Karen Hennigan, and David C. Sloane, National Institute of Justice, June 2003 (ASCII Text File) (PDF File).

     Publication: "Research for Practice, How Police Supervisory Styles Influence Patrol Officer Behavior," by Robin Shepard Engel, National Institute of Justice, June 2003. (ASCII Text File) (PDF File).

     Reference:

• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently-noted civil liability law resources.