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A Civil Liability Law Publication
for Law Enforcement

ISSN 0271-5481

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2004 LR Nov (web edit.)

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Featured Cases - With Links

Arrestee Suicide/Suicide by Cop
Assault and Battery: Chemical
Assault and Battery: Physical
Defenses: Qualified Immunity
False Arrest/Imprisonment: No Warrant (2 cases)
False Arrest/Imprisonment: Unlawful Detention
Public Protection: Crime Victims
Public Protection: Informants
Public Protection: Rescue Situations
Search and Seizure: Home/Business
Search and Seizure: Search Warrants

Noted in Brief -(With Some Links)

Administrative Liability: Supervision
Assault and Battery: Handcuffs & Restraints
Defenses: Collateral Estoppel
Defenses: Governmental Immunity
Defenses: Indemnification
Defenses: Qualified Immunity
Defenses: Release Agreements
Domestic Violence
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant (2 cases)
Federal Tort Claims Act
Firearms Related: Intentional Use
Firearms Related: Licenses and Regulations
First Amendment
Freedom of Information
Governmental Liability: Policy/Custom (2 cases)
Negligence: Vehicle Related (2 cases)
Procedural: Discovery (2 cases)
Public Protection: Crime Victims
Racial Discrimination
Search and Seizure: Home/Business


Cross References

Featured Cases -- With Links

Arrestee Suicide/Suicide By Cop

Officers who shot and killed a man who demanded they kill him were not entitled to summary judgment on his estate's federal civil rights claim for excessive force when there was a factual dispute over whether he was armed with a knife at the time of the shooting, and whether he posed an immediate threat to them.

     Police received a 911 call from a man's girlfriend informing them that he was threatening suicide. Three officers were dispatched to the couple's home, along with a sergeant. They were informed over the radio that the man was armed with a knife and wanted to “commit suicide by cop."

     The officers were armed with beanbag guns, and mace, as well as other weapons. When they walked towards the residence, they heard the man shouting statements such as, “Kill me, shoot me, I don’t care.” They saw him standing near his apartment behind a retaining wall, and he complied with their instructions to step out from behind the wall. Officers stated that they noticed that he was holding a 12-inch long butcher's knife in his right hand.

     The officers claimed that the man, in response to commands that he put down the knife, did not comply, but rather demanded that they shoot him. Two of the officers claimed that the man began walking in an aggressive manner towards them, "flailing his arms" and holding the knife out at his side. The sergeant, however, characterized the man only as "taking steps" toward the officers, and did not indicate that he felt threatened by or scared of the man. The officers did not retreat or take cover.

     According to the officers, one of them fired a beanbag round, which hit the man in the stomach, causing him to bend down "just a little bit." He then stood up again and continued toward the officers. A second beanbag round which struck the man on the chest had no effect. One of the officers, allegedly waiting to see the man take one more step after being shot with the second beanbag round, then fired at the man with his assault rifle. This officer fired two or three shots, and another officer fired three shots. Neither of them gave any warning prior to firing. After the man fell to the ground, an officer removed the knife the man allegedly was still holding, and another officer placed him in handcuffs. The man subsequently died.

     In a federal civil rights lawsuit, the plaintiffs claimed that the decedent did not have a knife five minutes before the officers' arrival, and that the knife was planted by the police after they shot him. The man's girlfriend suggested that one of the officers entered her home to obtain a knife to plant on the decedent. The plaintiffs also claimed that, if the decedent were holding a knife, he was doing so in a non-threatening manner with the blade facing down, not aiming it at anyone.

     The trial court noted that evidence regarding police training guidelines produced on a motion for summary judgment indicated that police officers generally cannot justify the use of lethal force on an unarmed suspect approaching them.

     The court ruled that the plaintiffs had no standing to assert federal civil rights claims for loss of familial association, in the absence any evidence that the officers, in their actions, intended to interfere with the personal relationship between the decedent and themselves. Summary judgment was therefore granted on federal constitutional claims for loss of familial association. The court also ruled that only the estate of the decedent had standing to assert constitutional claims on his behalf, and therefore granted summary judgment in the defendants' favor on the federal civil rights claims brought by the plaintiffs individually, leaving only those asserted by his estate. A similar ruling was made concerning the state law wrongful death claims.

     The court denied qualified immunity to the two officers who shot the decedent, ruling that if the facts were as the estate asserted them, i.e., either that the decedent was not armed with a knife, or was not posing an immediate threat to them at the time, they could not use deadly force against him. The court pointed to prior case law suggesting that the mere fact that the decedent was in possession of a knife was not enough.

     The estate also claimed that the officers knew that the decedent was "attempting to commit suicide by cop and that he was not threatening anyone else." If this were true, the court found, the use of deadly force would violate clearly established law. The court therefore allowed the federal civil rights claims against the officer to go forward, along with state law battery and wrongful death claims.

     The court dismissed claims against police chief in his individual capacity for allegedly maintaining an unwritten custom or police of permitting or condoning the use of excessive force, and for inadequate supervision, hiring, and training, as well as claims against the city and the police chief in his official capacity, except for the inadequate training claim.

      The court noted that "inadequacy of police training may serve as a basis for Section 1983 liability only when the failure to train reflects a municipality’s deliberate indifference to the rights of people with whom the police come into contact." The court found that the record contained few "specific facts showing that there is a genuine issue for trial” on the inadequate training claims, but declined to dismiss that claim because the defendants, while seeking summary judgment on all claims, did not address the inadequate training claims in their supporting memoranda.

     Murphy v. Bitsoih, 320 F.Supp.2d 1174 (D.N.M. 2004).

     » Click here to read the text of the case on the AELE website.

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Assault & Battery: Chemical

Federal appeals court upholds $900,000 jury award to family of adult non-verbal autistic man who died after officers seeking to restrain him allegedly continued to use pepper spray and to lay on top of his body after he was handcuffed, hobbled, and laying on his stomach on the ground, no longer resisting. Continued use of such force at that point, the court rules, violated clearly established law, and jury's award was not excessive.

     A 32-year-old autistic man, completely lacking the ability to care for himself, was unresponsive and unable to speak. He was in the care of a company which provided care for developmentally disabled individuals. He was taken by one of its employees to a store, along with the employee's three-year-old son, and after departing, began to have a "behavior" in the van, moving around, because he was not seat-belted in, and hitting himself in the face as well as biting his own hand, and slapping the top of the employee's head.

     The employee stopped the van, and she and the autistic man exited the vehicle. The employee believed that she had lost control of the man, and called 911, after locking herself in her van. An officer arrived on the scene, and was told that the man was mentally ill, but apparently was not told that the man was nonverbal and non-responsive.

     The officer approached the man, asking him to state his name and to explain the reason for his agitation, as he kept hitting and biting himself.  The man kept advancing toward the officer, who walked backwards about 50 feet through the parking lot, retreating from him, until he grabbed her shirt. The officer pushed his hand away and delivered a short burst of pepper spray to his face. He then walked into the store, and the officer followed him in and ordered him to leave.

     The man obeyed, giving the officer the false impression that he actually understood her, and as the two exited the store, another officer arrived. Both officers attempted to arrest the man outside the store, but a struggle ensued. A third officer arrived, and the officers decided to take the man to the ground in the entrance foyer of the store.

     They allegedly did so, but laid on top of him and sprayed him with pepper spray even after he was immobilized both with handcuffs and a hobbling device on his feet. They allegedly continued to apply pressure to his back as he lay on his stomach while restrained. The man died en route to the hospital shortly after the incident.

     A federal civil rights lawsuit by the man's surviving family resulted in a jury award of $900,000 in damages for the man's physical and mental pain and suffering prior to death. The trial court denied motions for a new trial, reduction of the damage award, or qualified immunity for the defendant officers.

     A federal appeals court upheld this result.

     The court ruled that this use of force violated the decedent's Fourth Amendment rights. The court noted that the officers had been trained in the use of pepper spray, and taught that it was excessive force to spray a suspect after they were incapacitated. Accordingly, they were not entitled to qualified immunity.

     At the time of the conduct that led to the arrestee's death, he had stopped resisting arrested and posed no flight risk. At that time, using pepper spray against him and lying on top of him while handcuffed and hobbled was clearly improper. This, the evidence showed, created asphyxiating conditions because it put substantial pressure, the officer's body weight, on the arrestee's back, which may have resulted in positional asphyxia.

     The appeals court also rejected the argument that the jury's $900,000 award was excessive or shocking in light of the psychic pain stemming from anxiety and fear that the decedent could have experienced while gasping for breath.

     Champion v. Outlook Nashville, Inc., No. 03-5068, 380 F.3d 893 (6th Cir. 2004).

     » Click here to read the text of the case on the Internet.

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Assault and Battery: Physical

Federal appeals court overturns trial judge's grant of summary judgment on arrestee's claim that officer used excessive force against her in allegedly shoving her headfirst into a police vehicle, causing her to strike her head on the metal partition inside.

     A female bar patron in New York sued the city and a number of police officers, claiming that she was arrested without probable cause following a dispute with a bouncer at the bar who refused to admit her, and that the officers used excessive force against her in the course of the arrest.

     The trial court, relying on statements by witnesses and the bar bouncer made to an officer, and the officer's own observation of a laceration on the bouncer's head shortly after the incident, found that there was probable cause for the arrest of the patron for assault on the bouncer, despite her argument that the bouncer had assaulted her. The bouncer claimed that the she had hit him over the head with her backpack, causing the laceration. While she claimed that there were other witnesses who could support her version of the incident, which was that the bouncer had assaulted her, the officers could base their decision to arrest on the statements of the bouncer and the witnesses they had talked to, and were under no obligation to investigate further or to believe the version put forth by the arrestee, the trial court ruled.

     On the excessive force claim, the arrestee alleged that one of the officers violently and unnecessarily swung and jerked her around by the handcuffs while she was cuffed from behind. She also claimed that the officer shoved her headfirst into his police car, causing her head to strike the metal partition between the front and back seats, resulting in various injuries and post-concussive syndrome.

     The trial court also granted summary judgment on the excessive force claim, based on a statement by the plaintiff during her deposition which it thought refuted her claim that she was propelled headfirst into the metal partition of the police car. The question and answer was as follows:

     The trial judge found that this undermined her later allegations in her sworn declaration in opposition to the summary judgment motion that she was "violently shoved" headfirst into the police car, causing her head to strike the solid partition inside the police vehicle.

     The federal appeals court vacated the summary judgment on the excessive force claim. It found that other statements in the plaintiff's deposition, including one that she "scraped my forehead against the thing that divides the perps from the police officers" and that she was "shoved" were entirely consistent with her later allegation that the officer propelled her into the car's partition. "At worst," the appeals court stated, the deposition answers "left an ambiguity that the later declaration clarified."

     Her version of the event was also supported by an affidavit from a friend who was present at the incident, who was a co-plaintiff in the case.

     The appeals court also found fault with the trial court's view that the plaintiff's injury was insufficiently serious. The trial court had stated that "minor scrapes, bumps or bruises potentially could occur, often unintended, during any arrest, and an arresting officer can not be held unremittingly liable for every such incident." The appeals court noted that the plaintiff claimed that the officer's use of force was sufficient to send pain into her arm and lower back and leave her with a post-concussive syndrome. It found that sufficient to require that a jury assess the plaintiff's account of what occurred during her arrest, along with any conflicting evidence that the defendants would present.

     Maxwell v. City of New York, #03-0245, 380 F.3d 106 (2nd Cir. 2004).

     » Click here to read the text of the case on the Internet. [PDF]

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Defenses: Qualified Immunity

•••• Editor's Case Alert ••••

U.S. Supreme Court to decide whether officers were entitled to qualified immunity for arresting a motorist for tape recording a traffic stop without consent, which was not a crime under applicable state law, based on the existence of arguable probable cause to arrest him for crimes "not closely related" to the charged offense.

     The U.S. Supreme Court will review a federal appeals court decision denying qualified immunity to arresting officers who arguably had probable cause to make an arrest for one offense, when that offense was "not closely related" to the offense charged by the officer at the time of the arrest. It will decide whether such an arrest violates the Fourth Amendment, as well as, for purposes of qualified immunity, whether the law was clearly established when there was a split in the federal appeals circuits concerning the application of "closely related offense doctrine," and the Ninth Circuit, within which the case occurred, then allegedly had no controlling authority applying the doctrine to circumstances similar to the case. Additionally the State of Washington, within which the case arose, also did not apply the "closely related offense" doctrine.

     The appeals court had ruled that under the "closely related offense doctrine," an arrest by a police officer for an offense for which officer lacked probable cause does not necessarily violate Fourth Amendment when probable cause existed for closely related offense, as long as it involves same conduct for which suspect was arrested. It also held that the defendant officers, however, could not have reasonably believed that their arrest of the plaintiff was lawful, and were therefore not entitled to qualified immunity on basis of probable cause to arrest plaintiff for unrelated offense.

     The case involved a Washington state motorist who spent a night in jail for tape recording a traffic stop without consent. Since taping police officers during the performance of their public duties is "not illegal under the Washington Privacy Act," RCWA 9.73.030(1)(b), under which he was arrested, the charge was dismissed by a state trial court. During the incident, the motorist's car was also towed and impounded. The arrestee then filed a federal civil rights lawsuit for violation of his right to be free of unreasonable searches and seizures.

     The defendant officers argued that they were entitled to qualified immunity from liability and also that they had probable cause for the arrest. Despite the trial court's instruction to the jury that state law at the time of the incident did not bar the type of recording that the motorist did, the jury found for the defendants and the trial court denied the plaintiff's motion for a new trial.

     A federal appeals court reversed, ordering a new trial. It found that the plain language of the statute in question only prohibiting taping "private" conversations without consent, so that the "legal distinction" the officers were asked to make was not a difficult one: "taping private conversations is illegal, taping a traffic stop is not." Despite this, the officers arrested the plaintiff for alleged violation of the state Privacy Act.

     During the incident at issue, the motorist even showed the officers a copy of a state appeals court decision he kept in his glove compartment which held that the state Privacy Act does not apply to police officers performing their official duties, but the arresting officers declined to look at it and arrested him shortly thereafter.

     The officers not only failed to read the clear language of the statute and incorrectly decided that the traffic stop on a public thoroughfare was a private conversation, they also declined to read the case the motorist offered and did not call it to the attention of the prosecuting attorney. Under these circumstances, the court found, no objectively reasonable officer could have concluded that arresting the motorist for taping the traffic stop was permissible, so that the defendants were not entitled to qualified immunity.

     The appeals court rejected the officers' argument that the fact that they had arguable probable cause to arrest the motorist on other offenses unrelated to the tape recording could be a basis for granting them qualified immunity. "Since the defendants did not have probable cause to arrest Alford for a violation of the Washington Privacy Act, probable cause to arrest for other unrelated offenses, if present does not cure the lack of probable cause here," the court stated.

     Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003). [PDF]

     The U.S. Supreme Court granted review in Devenpeck v. Alford, #03-710, 124 S. Ct. 2014 (2004), and will hear oral arguments on the case on November 8, 2004. A report of the Court's ultimate decision in the case will appear in a future edition of this publication.

     » Click here to read the text of the appeals court decision below on the Internet. [PDF]

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False Arrest/Imprisonment: No Warrant

Police officer could rely on store detective's statement that he had observed a woman and her sons take two jackets from the premises without paying, despite her display of a "layaway" receipt purporting to show her purchase of these or similar items thirteen days earlier. Summary judgment was properly granted to defendants in arrestee's civil rights lawsuit.

     A store detective called police to report a shoplifting. An officer responded to the call and the detective told her that a woman, her sons, and a group of other persons had entered the store, and that he had watched the woman take two jackets bearing the logo of the New England Patriots, a football team, from the rack and put them on her sons. He stated that he had watched the three as they walked around the store and then went through the checkout line without making any attempt to pay for the jackets.

     The store detective stopped the three when they left the premises, and one of the boys allegedly admitting that he had put the jacket on in the store. The officer, after hearing this, interviewed the woman, but found communication difficult because the suspect lacked fluency in English, and the officer spoke no Spanish. Despite this the officer was able to understand that the woman claimed that she had purchased the jackets on an earlier shopping trip, and the woman showed her a layaway receipt dated thirteen days earlier, indicating that $49.94 had been paid toward a previous balance and that the layaway of two items labeled "PATRIOTS OUT" had been complete.

     The officer arrested the woman and charged her with shoplifting. The charges were subsequently dropped, and the arrestee filed a lawsuit in state court in Rhode Island against several officers, the town, and the police department. The lawsuit included a federal civil rights claim, and the defendants moved the case to federal court.

     The trial court granted summary judgment to the defendants, finding that there was probable cause for the arrest at the time it occurred. A federal appeals court has upheld that result.

     The appeals court rejected the plaintiff's argument that the determination of whether there is probable cause for an arrest is always a factual issue to be decided by a jury. The court noted that the material facts in the case, including what the police knew at the moment of the arrest, the source of that knowledge, and the leads that were pursued or ignored, were not in dispute. "When that is so," the court reasoned, the question of whether there was probable cause for an arrest can ordinarily be determined by summary judgment.

     The appeals court also rejected the argument that the layaway receipt necessarily showed that the arrestee had not stolen the jackets.

     The question of which of these two inferences was true, the court noted, would not alter the determination of probable cause, since all that needed to be shown was that a reasonable officer with knowledge of the receipt might nevertheless find it likely that the store detective's eyewitness account was true, and that the arrestee had committed a crime. The appeals court found that a reasonable officer could reach that conclusion.

     The appeals court further rejected the arrestee's argument that the officer should have considered the store detective's statements "unreliable (or, at least, suspect)" because she had never met him before. The court noted that victim complaints are a prime source of investigatory information for officers, and that in the absence of circumstances that would "raise a reasonably prudent officer's antennae," there is no requirement that an officer "corroborate every aspect of every complaint with extrinsic information."

     Ordinarily, the statement of a victim or another witness to a crime, standing alone, can support probable cause. The appeals court further cited another court's prior decision, recognizing that "in the retail context, private security officers are inherently reliable." See Gramenos v. Jewel Cos., 797 F.2d 432 (7th Cir. 1986). In the immediate case, the court found, the officer had every reason to believe that the store detective was being truthful. Additionally, one of the sons allegedly admitted to having put on the jacket within the store.

     While the arrestee argued that the arresting officer, and other officers who arrived on the scene, should have investigated matters further, the appeals court stated that under ordinary circumstances, once a determination of probable cause has been made there is no duty to "investigate fully." 

     The trial court in this case, therefore, acted properly in granting summary judgment for the defendants.

     Acosta v. Ames Dep't Stores, Inc., No. 04-1016, 2004 U.S. App. Lexis 19823 (1st Cir. 2004).

     » Click here to read the text of the case on the Internet.

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Officers were not entitled to qualified immunity on motorist's claim that she was arrested for alcohol or drug induced driving without evidence of that, after she was involved in a collision with an off-duty officer's car. The motorist's version of the incident, if believed, supported her assertion that the officers fabricated smelling an odor of cannabis to manufacture probable cause for an arrest.

     A motorist was involved in a nighttime auto accident with an off-duty Miami police officer who was transporting a passenger in his unmarked police car. The motorist claimed that the officer ran a red light and caused the accident, while he claimed that it was she who ran the red light. The motorist suffered head trauma during the accident, and blurred vision. She was disoriented and not knowing that the officer had been a participant in the collision--instead believing him to be an officer who had responded to the scene--allegedly screamed to him, "He just ran the red light and hit me!"

     Other officers responded to the scene, but allegedly did not approach the injured motorist until 30 minutes had passed. She subsequently claimed that she told them that she was dizzy and could not stand up, and that she mentioned her head injury but was not treated at the scene by emergency medical technicians, but that the officer and his passenger were.

     While approximately twenty police officers were on the scene, the motorist claimed, no one asked her for a statement of her version of the events or spoke to any witnesses at the scene, other than the off-duty officer, who they spent a great deal of time talking to, and who claimed that she was at fault. Officers claimed that they smelled a slight odor of cannabis coming from the motorist's vehicle and person, but none of them conducted a search of her vehicle, nor were drug-sniffing dogs summoned, and no cannabis was ever found. The motorist denies being under the influence of alcohol or drugs at the time.

     One of the officers attempted to administer a field sobriety test, but she informed the officers that she was feeling dizzy and sick and wanted to go to the hospital. During a "walk and turn" test, she did an about face instead of doing the turn as instructed, and also swayed while balancing on one leg, failed to properly place her finger to her nose, missed the tip of her nose five times, failed to follow instructions, had eyelid tremors and failed to keep her eyes shut during a balancing test. One of the officers concluded that she had failed the test.

     She was taken into a police vehicle and told that she was being transported to the hospital for treatment and more tests, according to the motorist, but she was instead taken into custody and brought to a DUI testing facility. She was accused of running a red light and causing the accident. She was charged with driving under the influence of alcohol, she claims, but Breathalyzer tests (between two and four) all came back negative with a 0.000% alcohol content. One officer then allegedly told another to write on a form that the motorist had a strong odor of cannabis emitting from her breath. They also took a urine sample.

     She was taken to the county jail and bailed out the following day. After two court appearances, all charges were dropped, following negative drug test results.

     She sued the city and officers for false arrest, and the trial court ruled that the officers had probable cause for the arrest and that they were entitled to qualified immunity.

     A federal appeals court found that the officers acted in an unreasonable manner and were therefore not entitled to qualified immunity. The court noted that:

     The appeals court found that the trial judge erred in failing to recognize in the plaintiff's complaint the assertion that the defendant officers fabricated evidence, the supposed odor of cannabis, in order to support probable cause for the arrest. The negative drug test, the failure of the officers to search the motorist's vehicle, her person, or her passengers, the failure to call in drug-sniffing dogs, the failure to find drugs, the failure to impound the vehicle as evidence, and other facts tended to support her claim. The defendants, the court commented, appeared to lack "any corroborating evidence" to support their testimony that an odor of cannabis was present, while the plaintiff was able to support her version of this issue with "ample circumstantial evidence."

     As the plaintiff's word on the presence or absence of a cannabis odor was only contradicted by the defendants' testimony, summary judgment was improper, and the trial court improperly accepted as true the defendants' claim that they smelled cannabis, and therefore had probable cause for an arrest.

     Further, under the plaintiff's version of the incident, the officers did not act in an objectively reasonable manner under the totality of the circumstances. The appeals court found genuine issues of material fact existed as to whether the defendants "(1) manufactured probable cause, (2) failed to conduct a reasonable investigation, and (3) ignored certain facts within their knowledge," so that it could not find that there was probable cause for the arrest as a matter of law.

     Additionally, if, as the plaintiff claimed, the officers fabricated or unreasonably disregarded certain evidence to establish probable cause or arguable probable cause, they were not entitled to qualified immunity on the false arrest claim. The appeals court upheld, however, the rejection of a malicious prosecution claim also asserted by the plaintiff.

     Kingsland v. City of Miami, No. 03-13331, 2004 U.S. App. Lexis 18409 (11th Cir.).

     » Click here to read the text of the case on the Internet. [PDF]

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False Arrest/Imprisonment: Unlawful Detention

•••• Editor's Case Alert ••••

City's procedures for obtaining a post-arrest probable cause determination in warrantless arrests did not violate constitutional requirements, despite not requiring a personal appearance of the arrestee before the magistrate and the use of a pre-printed form for the officer to fill out and submit along with the arrest report and related records.

     A federal appeals court has upheld the constitutionality of a city's procedures for determining probable cause after a warrantless arrest. In the case, an arrestee asserted that the city's procedure violated the Fourth and Fourteenth Amendments because it did not provide her with an opportunity for personal appearance before a magistrate at the time the probable cause determination is made, and because the application for probable cause submitted to the magistrate is made on a "pre-printed form."

     The plaintiff was arrested without a warrant for grand theft and the fraudulent use of a credit card, after a co-worker had reported that her wallet had been stolen and fraudulent charges made on her credit card. A grocery store clerk allegedly identified the arrestee from a photograph as the person who had charged over $300 worth of groceries on the victim's credit card. Police who went to her apartment and conducted a consensual search found several bags of groceries without receipts, and the arrest was made.

     After she was booked, the police department initiated the process of securing a post-arrest probable cause determination, which typically was done by an arresting officer filling out a pre-printed applicable for probable cause, signing it, and then sending the application, along with the relevant police reports and records, to the court for a post-arrest probable cause determination, with the magistrate having 48 hours to grant or deny the application. The form is a sworn statement, under penalty of perjury.

     In this case, the watch commander, rather than the arresting officer, filled out the application. The magistrate determined that the materials sent substantiated a finding of probable cause, and he made that determination 38 hours and 40 minutes after the arrest. The arrestee was released the following day, however, after further investigation revealed insufficient grounds to charge her.

     The appeals court found that the procedure used, on its face, did not violate the Fourth Amendment.

     The appeals court found that the procedure used provided such a "prompt, fair, and reliable determination," based on the 48-hour time limit on the magistrate's decision. The court also ruled that the Constitution did not require a personal appearance of a suspect at the post-arrest probable cause determination. While the U.S. Supreme Court has, in prior cases, stated that States may choose to incorporate a post-arrest cause determination into the suspect's first appearance before a judicial officer or into the procedure for setting bail, thereby involving a personal appearance, the appeals court stated that such "incorporation was a suggestion, not a constitutional requirement."

     The issue of whether there is probable cause for detaining an arrested person pending further proceedings, the court ruled, can be determined reliably without an adversary hearing.

    The court also found no problem with the use of a pre-printed form, as long as there is a sworn statement setting forth the facts supporting probable cause. Because the city's pre-printed application provides for a sworn certification and refers to and incorporates "official reports and records" prepared by officers, the city's practice of using such a form, accompanied with these reports and records would satisfy the issuance of an arrest warrant, and therefore is also sufficient for a post-arrest probable cause determination.

     The appeals court found itself unable to determine whether the application for probable cause filed in her case was constitutionally infirm, because it allegedly lacked sufficient attached documentation and was signed by an officer without first-hand knowledge of the arrest, because she failed to provide a trial transcript for the court to review.

     Jones v. City of Santa Monica, No. 03-55211 2004 U.S. App. Lexis 19046 (9th Cir. September 10, 2004)

     » Click here to read the text of the case on the Internet. [PDF]

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Public Protection: Crime Victims

•••• Editor's Case Alert ••••

Victim of alleged rape by four university football team members could not pursue claims against law enforcement for violation of her civil rights on the basis of a purported failure to perform a proper investigation.

     A woman claimed that members of the Stillwater, Oklahoma Police Department violated her constitutional rights by failing to adequately investigate an alleged rape and by discouraging her from pursuing prosecutions of the alleged assailants. The case involved a sexual encounter between the plaintiff, then an Oklahoma State University student, and four members of the school's football team at an early Sunday morning party at the house of a football teammate. The woman claimed that she was raped, while the football players maintained that the encounter was "consensual," and they were not charged with any crime.

     In a federal civil rights lawsuit, the plaintiff claimed that the lead investigator, a police department detective did everything in his power to derail the investigation and make certain that the football players would be shielded from public and legal scrutiny. This allegedly included the failure to collect material evidence, the failure to challenge the football players' account of the event, discouraging the victim from prosecuting the football players in purported violation of state and federal law, and finally, causing physical evidence from the alleged rape to be destroyed, making it difficult to pursue a civil action against the football players.

     The woman checked herself into a hospital shortly after the incident and the police department was notified, with two officers dispatched to the hospital, where a nurse assembled a "rape kit," which included samples of the woman's blood and other bodily fluids. Two other officers, including the lead detective, were dispatched to the house that was the scene of the incident.

     The detective was a 1994 graduate of the university who had received an athletic scholarship to play baseball as a student, and his second cousin, whom he allegedly sees approximately twice a year, is the university's director of media relations, the court stated. He had also, at the start of the football season, addressed the football team about the police department's "role within the community and the involvement with citizens."

     The detective went to the football team's on-campus office and interviewed each of the accused football players for no more than half an hour, gathering written statements in which each admitted to having some form of sexual contact with the plaintiff, but stating that the activity was consensual. After these initial interviews, the football players were not again questioned by the police. The plaintiff also claimed that prior to being interviewed by the detective separately, all of the accused players met together with the detective and their coach, which she argued could be used to infer that the detective might have helped the football players in "formulating a unified story and strategy." The detective denied that such a group meeting took place.

     The detective also interviewed the plaintiff and videotaped the interview, challenging her version of the incident a number of times, and stating that he had interviewed "numerous" people at the party and that her version of the incident had been contradicted. At his subsequent deposition, he admitted that the "numerous" people who contradicted the plaintiff's story were merely the four accused football players. He also indicated his interest in whether the plaintiff had any part in leaking the story to the press, questioning her about this at both the beginning and end of the short interview. At the conclusion of the interview, he placed a "waiver of prosecution" form in front of her, which she signed. The detective subsequently testified that in the other fifty rape investigations in which he had been involved, he had never used such a "waiver of prosecution" form.

     Despite the signing of the form, officers collected additional written witness statements after the interview, with a total of twenty written statements from potential witnesses gathered. The plaintiff returned to the police station a day later and was granted a request to be re-interviewed by a female officer. She indicated that she was confused about the purpose and effect of the prosecution waiver form she had signed. She admitted to being drunk at the party, and that she could not remember all of the night's events, but she insisted that the sexual contact was not consensual.

     She conceded that she might have agreed to have sex with one of the football players, but stated that she "most certainly would not have agreed to have sex with all of them at the same time."

     Based on a report from the lead detective, the prosecutor decided not to bring any charges. The rape kit was subsequently destroyed after a police department employee, seven weeks after the events, was told by the prosecutor that he could think of no reason to hold it any longer.

     Rejecting the plaintiff's claims, a federal appeals court has held that there is no constitutional claim for victims of crime when state or local law enforcement officials fail to perform a proper investigation.

     While the appeals court expressed its sympathy to a "young person who has undergone such an appeal, exacerbated by the alleged dereliction of duty on the part of the police who are employed to protect her," it concluded that none of the three legal theories for a constitutional claim she put forth could be sustained.

     The plaintiff claimed first that the detective's failure to comply with state statutes relating to rape investigations violated her procedural due process rights, secondly, that the destruction of the rape kit, the failure to conduct follow-up investigations of material witnesses, and the inaccuracies and omissions contained in the police reports impaired her constitutional right of access to the courts, and finally she claimed that her equal protection rights were violated during the course of the investigation, because the detective discriminated against her by favoring and seeking to protect the football players.

     Under a state statute, police officers "shall not discourage" a rape victim from pressing charges. The appeals court rejected the argument that this gave the plaintiff a protected due process property interest in the prosecution of her alleged assailants, or in having a particular kind of investigation.

     The appeals court found that the claim for alleged denial of access to the court was also deficient, since she had subsequently obtained a settlement in a civil lawsuit.

     As for the equal protection claim, the court noted that the plaintiff did not claim that the alleged unequal treatment of her claim by the detective was due to her membership in any protected class or racial or gender group. Instead, she asserted that she suffered discrimination as a "class-of-one," citing Bartell v. Aurora Pub. Schs., 263 F.3d 1143 (10th Cir. 2001), in which the court held that "Equal Protection affords protection to an individual injured by intentional or purposeful discrimination without identification of a class." This earlier case relied on the Supreme Court's decision in Village of Willowbrook v. Olech, #98-1288, 528 U.S. 562 (2000) (per curiam), which held that plaintiffs need not allege that they were part of a suspect class to state an equal protection claim.

     But the appeals court noted that the plaintiff did not allege that the defendants bore "any particular ill will or malice" against her, but rather that the detective was seeking to protect the university football program from the adverse publicity and the consequences of the rape prosecution of four of its players. "Presumably, any other person accusing OSU athletes of a heinous crime would receive similar treatment. Thus, it might be more accurate to say this is not a case of discrimination against a 'class of one,' but a case of discrimination in favor of a powerful and popular local institution." The court stated that it was not clear that the precedents cited could be "stretched to cover such a case."

     More important, the appeals court stated, was that the plaintiff failed to identify any specific actions of the defendants that were both "wholly arbitrary and lacking in legitimate justification," and also had a "concrete effect on her rights." It noted that the ultimate decision not to prosecute the football players and to release the rape kit were not made by the defendants, who were police officers, but by the prosecutor, who was not a defendant. Further, the plaintiff signed two waiver of prosecution forms, the second after being re-interviewed by a female police officer, who was not a defendant in her lawsuit, and the evidence showed that her decision to do so was motivated primarily by her fear of media attention, rather than any alleged misconduct by the police.

     The plaintiff also failed to show that other similarly situated rape victims were treated differently.

     Jennings v. City of Stillwater, No. 03-6206, 2004 U.S. App. Lexis 19274 (10th Cir. September 15, 2004)

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Public Protection: Informants

•••• Editor's Case Alert ••••

FBI agent could not be held liable for allegedly negligently revealing the identity of an informant to persons who might threaten him, when there was no showing of deliberate indifference towards the informant's safety.

     A federal appeals court has ruled that a trial court should dismiss a federal constitutional claim filed against an FBI agent by an informant who claimed that her actions had disclosed his identity to persons who might harm him. It held that the agent was entitled to qualified immunity, that the complaint, at most, alleged negligence, rather than deliberate indifference to the informant's safety, and that no clearly established right of the informant had been violated. It did not answer the question of whether a "deliberate indifference" standard or some other legal standard would govern or support such a claim, stating that it did not have to reach that issue, since no deliberate indifference was even alleged.

     The plaintiff was formerly a prisoner at a Massachusetts state prison, and sent letters to the security team at the prison containing information about both alleged corruption in the prison and crimes being committed or planned by other prisoners. He subsequently met with the defendant FBI agent, another FBI agent, a federal prosecutor and a police officer. The defendant FBI agent assured him that she would take precautions to keep him safe, in response to his fears if he passed along some additional information. He then shared information with her, and she encouraged him to pretend an interest in a still-developing plan by prisoners to rob an armored car after their release from prison.

     She asked him to send a letter to one of the persons planning the robbery--an inmate at another prison, saying that he would participate in the robbery if the others could wait until after his release. She instructed him to send this "dummy letter," along with a second letter containing more detailed information for the FBI to a phony company address that served as an FBI mail drop. She told him that the letter to the inmate would be forwarded to the inmate's girlfriend, who would pass it along to the other inmate, while she would keep the letter to the FBI. He sent the letters as instructed.

     She later told him that the FBI had made a "terrible mistake" and forwarded his entire parcel, including the letter to the FBI, which would make it clear to anyone that he was an FBI informant, to the girlfriend of the other inmate. Word of his informing allegedly spread through the prison system, and he had his teeth broken by a fellow inmate who accused him of being a "rat."

     He was transferred and subsequently released, but stated that he now lives in fear for his safety and has received numerous threats since his release.

     The appeals court agreed that it might be a violation of due process when a governmental actor "affirmatively acts to increase the threat to an individual of third-party private harm or prevents that individual from receiving assistance." So it was at least theoretically possible that the agent's actions, in permitting the letter to the FBI to be forwarded and in failing to protect him afterwards -- were the source of an increased danger that ultimately caused him harm.

     To prevail on such a claim, even assuming its validity, the appeals court stated, he would have to show that the agent's conduct was so egregious or outrageous that it may fairly be said to "shock the contemporary conscience."

      Such conduct could range from malicious and sadistic actions taken for the very purpose of causing harm to those in which a government official displays deliberate indifference to a known risk of harm. In this case, however, the court found that it did have to determine where along this spectrum of levels of fault the plaintiff's claim against the agent might lie, "because the complaint does not fairly allege deliberate indifference, let alone any more serious level" of misconduct.

     To show deliberate indifference, the plaintiff would have to, at a bare minimum, the court commented, demonstrate that the agent actually knew of a "substantial risk of serious harm to him and disregarded that risk."

     No such showing was made. The agent did not deliberately cause the plaintiff's role as a government informant to be revealed. Further, the evidence did not show that the agent "abandoned him" after learning of the mistaken mailing, rather she arranged for his transfer to another prison, and a prison security official was present when she met with him to inform him of the mistaken mailing.

     The appeals court found that this was basically a "negligence" case, in which the U.S. government would have to respond to the prisoner's claims under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., but for which the FBI agent could not be sued for violation of due process.

     Coyne v. Cronin, No. 03-2357, 2004 U.S. App. Lexis 21178 (1st Cir.).

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Public Protection: Rescue Situations

Police officers who allegedly failed to summon ambulance for an hour and a half after responding to 911 call reporting man suffering from gunshot wounds were not entitled to summary judgment in wrongful death lawsuit. Decedent's estate claimed that officers had also told a neighbor who wanted to assist the injured man to go away. While officers may not have had a duty to respond to the call, once they voluntarily undertook to take charge of the scene, they had a duty not to harm the injured man.

     Police officers who responded to a 911 call reporting a shooting at 2 a.m. in the morning found a man lying on a bathroom floor, bleeding from multiple gunshot wounds. They initially allegedly did not see the gunshot wounds, however, although they did see a trail of blood leading into the bathroom, and left the man on the bathroom floor, believing that he was drunk. It was allegedly an hour and a half later that they called for an ambulance after a witness took an officer into the bathroom again and lifted the man's shirt to show the officer a gunshot wound. The man died several hours later. The decedent's estate sued the city for wrongful death, and an Illinois trial court granted summary judgment for the defendants, ruling that the city and its officers had no duty to the injured man, but only to the general public.

     An intermediate Illinois appeals court, assuming for purposes of argument that the city had no duty to respond to the 911 call, held that the city "voluntarily undertook the response," and at that point assumed a duty not to harm the injured man. The plaintiff estate, the court said, presented evidence that the city breached that duty when officers on the scene allegedly told at least one person who wanted to help the injured man to leave the area.

     Additionally, the court found that a section of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-104, which provides immunity under state law for failure to provide police protection or services did not apply because the injured man needed for the officers responding to the call to provide or summon medical care, not provide police protection.

     Medical testimony in the case included a statement from a doctor that expressed the opinion that if the decedent had received treatment within an hour of the shooting, his chances of survival would have increased by "at least 50%."

     The appeals court found that the evidence, taken in the light most favorable to the plaintiff, showed that if the police had not arrived and deterred the neighbor from assisting the injured man, he may have gotten the medical treatment required much sooner, and that the officers' delay in summoning the ambulance may have "substantially decreased" the injured man's chance of survival. Based on this evidence of willful and wanton misconduct in the police response to the 911 call, the court stated, the grant of summary judgment for the defendants was inappropriate.

     Torres v. City of Chicago, No. 1-03-0357, 2004 Ill. App. Lexis 1115 (1st Dist.).

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Search and Seizure: Home/Business

Officers who allegedly compelled warrantless entry into a woman's home by threatening to arrest her and put her baby in foster care were not entitled to qualified immunity. Warrantless entry was not justified by the fact that a parolee, the subject of the search, had previously lived there, when he was in jail at the time, and the search was based on "stale" information. Additionally, no reasonable officer could have believed that pointing a gun at the five week-old baby during a search of his room was reasonable under the circumstances.

      A federal appeals court panel, by a 2-1 vote, reinstated a civil rights lawsuit by a woman who claimed that police officers who raided her home looking for her boyfriend gained entry by threatening to arrest her and put her five week-old son in foster care unless she let them come in. They also, at one point, allegedly misrepresented that they had a search warrant and that one of them was the boyfriend's parole officer.

     The boyfriend, who police believe to be a member of a gang, was the target of the raid, as part of a sweep targeting parolees. At the time of the raid, however, the boyfriend was in jail, and the woman allegedly informed police that he did not live in the apartment at that time. The raid was conducted by both officers from the Los Angeles Police Department, and the federal Bureau of Alcohol, Tobacco, and Firearms, as well as state parole officers.

     The appeals court majority overturned the trial court's decision that these officers were entitled to qualified immunity for the search, finding that they relied on "stale" information concerning the boyfriend's whereabouts, with the addresses for the ten searches they were conducting having been compiled as long before as five months earlier, and should have either known that he was in jail or checked as to his whereabouts after the girlfriend told them he was not in the apartment, rather than insisting on entering for a warrantless search. The girlfriend, in fact, directly told them that she knew he was still in custody, according to her lawsuit.

     The mere fact that a parolee used to live in a residence, the court noted, did not justify the warrantless search of the residence when he no longer lived there. Caselaw which upheld searches after a parolee was taken into custody, the court found, typically involved searches shortly after the parolee's arrest.

     Accordingly, construing any disputed facts in her favor, the plaintiff "established that the officers violated her Fourth Amendment right to be free of warrantless searches." The officers who entered the residence, therefore, were not entitled to qualified immunity, as any reasonable officer should have known that the search was unlawful, as well as the manner in which it was allegedly conducted.

     The two-judge majority also found that the plaintiff could pursue her claim of excessive force, based on her contentions that one of the officers pushed her against a wall after entering the apartment, and that another scared her baby by going into the child's room and pointing a gun at it. The officer allegedly kept the gun on the baby, who was screaming, the entire time the room was being searched. The appeals court ruled that no reasonable officer could have believed that pointing a gun at a child, particularly a five-week-old baby, "was reasonable during the course of a non-exigent (and unconstitutional) search."

     Following the search, the woman called the boyfriend's parole officer, who stated that she did not authorize the search, and confirmed that the boyfriend was still in custody.

     The majority did agree with the trial court, however, that there was no evidence supporting municipal liability by the city on the basis of any official policy or custom.

     A strong dissent by the third judge argued that the officers who actually carried out the raid had been given the boyfriend's name and address by their superiors, and therefore could reasonably have believed that he was living there.

     Motley v. Parks, No. 02-56648 2004 U.S. App. Lexis 19581 (9th Cir.).

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Search and Seizure: Search Warrants

Search warrant for a residence which authorized a search of "all persons" present for drugs was not adequately supported by detailed information to support probable cause to believe that all occupants of the premises were involved in criminal activity. Officers who carried out the search pursuant to the warrant, and who strip-searched or pat-searched four adults and two minors in the home, were entitled to qualified immunity because the law on the issue was not clearly established at the time of the search.

     Six occupants of a home, four adults and two minors, filed a federal civil rights lawsuit claiming that their rights were violated when they were strip-searched or patted down during the execution of a search warrant that stated that it authorized a search of both the residence and all persons located there for drugs.

     A federal appeals court upheld summary judgment for the defendants on the basis of qualified immunity.

     It noted that a search warrant authorizing the search of "all persons" present at a residence can be constitutional if the magistrate issuing the warrant was given enough information in the affidavit for the warrant to show probable cause to believe that all persons on the premises are involved in some criminal activity.

     In this case, however, the deputy sheriff's affidavit used to obtain the warrant did not satisfy this standard, because it merely repeated an informant's statement that he had witnessed drug transactions there on the morning of the day the search was to be conducted. There were no facts asserted concerning whether the residence had any history of drug-related activities, that known drug dealers or users were frequenting it or that they were frequenting the surrounding neighborhood.

     The required information was allegedly also not presented in sworn oral testimony.

     Despite the defects in the warrant and how it was obtained for an "all persons" search, the appeals court found that the defendants were entitled to qualified immunity because the law as to whether an "all persons" warrant authorizing the search of all persons present at the scene of the search was constitutional was not covered by clearly established law at the time of the search, June of 2000. The court stated that the issue has not been clearly addressed by the U.S. Supreme Court, and there is no "consensus" among other courts as to the "requirements for what is necessary to sustain the validity of such a warrant."

     Owens Ex Rel. Owens v. Lott, No. 03-1194, 372 F.3d 267 (4th Cir. 2004).

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Noted in Brief

Administrative Liability: Supervision

     In a lawsuit claiming that federal agents had violated the Fourth Amendment in the course of retrieving documents from a medical office responsive to a subpoena in a regulatory enforcement action, the agents' supervisors could not be held liable for damages when they had no personal involvement in the incidents in question. Van Eck v. Cimahosky, 329 F. Supp. 2d 265 (D. Conn. 2004).

Assault and Battery: Handcuffs & Restraints

     While an arrestee's claim that officers used excessive force against him after handcuffing him could move forward, based on genuine issues of fact as to what happened, and whether officers were entitled to qualified immunity from liability, the plaintiff failed to make any showing that an official policy or custom of the city or its police department led to his injuries. Claims for municipal liability, therefore, were properly rejected. Arrestee's testimony in a deposition that he "might" have been yelling and waving his arms, and making a fist at the officers as he approached them, and his admission that he reached for one officer's gun belt and touched it, warranted summary judgment for the defendant officers on his claims that they also used excessive force against him prior to handcuffing him. Ross v. City of Toppenish, No. 03-35234, 104 Fed. Appx. 26 (9th Cir. 2004).

Defenses: Collateral Estoppel

     The rejection by a federal trial of the plaintiffs' federal civil rights claims of excessive force against a police officer, along with its dismissal, without prejudice, of their state claims, did not bar them from pursuing those state claims in a new lawsuit in West Virginia state court. West Virginia Supreme Court of Appeals rejects the argument that state law claims such as assault, battery, and reckless misconduct by officer who broke a man's leg during an encounter were barred from further consideration under the doctrine of collateral estoppel. While the federal claims rejected by the federal court arose out of the same incident, different legal standards applied to the federal and state claims, so the issues involved in the state claims had not previously been decided on the merits. Neiswonger v. Hennessey, No. 31274, 601 S.E.2d 69 (W. Va. 2004).

Defenses: Governmental Immunity

     Officer who did not act with malice towards arrestee who had violated laws against having alcohol on water district property was entitled to governmental immunity under the Mississippi Tort Claims Act, A.M.C. Sec. 11-46-7(2) for alleged injuries arrestee suffered from the force the officer used when the arrestee allegedly resisted arrest. Pearl River Valley Water Supply District v. Bridges, No. 2002-CA-01425-COA, 878 So.2d 1013 (Miss. App. 2004). [PDF]

Defenses: Indemnification

     County did not act arbitrarily or capriciously in terminating the coverage of a sheriff's department employee under an ordinance concerning defense and indemnification in lawsuits against employees acting in their official capacity when the employee allegedly failed to fully cooperate with the county attorney and deliberately withheld information from the attorney in replying to interrogatories concerning his prior work history. Baker v. Gwinnett County, No. A04A0048, 600 S.E.2d 819 (Ga. App. 2004).

Defenses: Qualified Immunity

     Jury's finding that a police officer used excessive force in breaking a motorist's wrist during an arrest for intoxicated driving was not inconsistent with its finding that the officer was entitled to qualified immunity from damages for the use of such force. The jury could, from the evidence, decide that the officer reasonably believed that he was justified in using the level of force he employed, while he was not actually justified, in fact, in doing so. Kent v. Katz, 327 F. Supp. 2d 302 (D. Vt. 2004).

Defenses: Release Agreements

     Release agreement that arrestee signed in connection with a negotiated plea on pending criminal charges was not enforceable when the available evidence failed to show that the arrestee voluntarily entered into an agreement to waive his right to sue a police officer and the prosecutor. The arrestee was not advised at either the arraignment or the plea hearing of his right to counsel concerning the entry of the plea. Jimenez v. Brunner, 328 F. Supp. 2d 1208 (D. Utah 2004).

Domestic Violence

     Woman's estate could pursue a negligence claim under Connecticut law against town and police officers for allegedly failing to protect her and her unborn fetus from being fatally shot by her estranged boyfriend, who was the father. Court rules that the defendants did not have tort immunity because the decedents were identifiable persons facing imminent harm. It was alleged that the officers knew of two prior assaults and a kidnapping that the boyfriend had perpetrated against the woman, and that the woman had expressed fear for her life. Florence v. Town of Plainfield, No. CV-03 00695808, 849 A.2d 7 (Conn. Super. 2004).

False Arrest/Imprisonment: No Warrant

     Maine police officer had arguable probable cause to arrest a homeowner on a drug offense when he had information presenting a reasonable likelihood that the arrestee had furnished a prescription drug to his teenage son, who then sold it to a confidential informant. Officer was therefore entitled to qualified immunity from liability for false arrest. Cox v. Maine State Police, 324 F. Supp. 2d 128 (D. Maine).

False Arrest/Imprisonment: Warrant

     Man arrested under a valid warrant in a case of mistaken identity did not show that officers violated his constitutional rights in making the arrest by failing to attempt to compare the photo of the suspect sought with his appearance. Since the officers had the correct address, and the arrestee himself "acquiesced" in the arrest, this did not show anything other than, at most, negligence on the part of the officers, which was insufficient for a federal civil rights claim. Jordan v. Fournier, 324 F. Supp. 2d 242 (D. Me. 2004).

     Judge's finding that arrestee was guilty on charges of delaying a police officer in the performance of his duties, which he had been arrested for under a warrant, showed that there was probable cause for the arrest, even though the arrestee was not formally sentenced or "convicted" of the charges, since the judge entered a "prayer for judgment continued" under North Carolina law. Such a ruling, while it had the effect of not sentencing the arrestee for the offense, did not establish his innocence of it. Elkins v. Broome, 328 F. Supp. 2d 596 (M.D.N.C. 2004).

Federal Tort Claims Act

     Activities of the U.S. Marshals Service while attempting to provide protection to a federal judge and his home involved the exercise of judgment, bringing their actions within the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. This entitled the U.S. government to dismissal of a claim under the Act by neighboring homeowners seeking money damages for alleged trespass, nuisance, and invasion of privacy committed by the Marshals in the course of carrying out their protective function. The judge was given 24-hour-a-day protection at his residence because of threats to him resulting from his handling of terrorism related court cases. Callahan v. United States, 329 F. Supp. 2d 404 (S.D.N.Y. 2004).

Firearms Related: Intentional Use

     Police officer acted in an objectively reasonable manner by using deadly force against the occupants of a truck that was being driven towards him at a high rate of speed while he stood a few feet away. Herman v. City of Shannon, No. 04-60027, 104 Fed. Appx. 398 (5th Cir. 2004). [PDF]

Firearms Related: Licenses and Regulations

     Sheriff's office employees acting in good faith were immune, under Washington state statute, from liability for any alleged errors in connection with preparing or transmitting information in the process of determining an applicants eligibility to receive or possess a firearm, or eligibility for a concealed pistol license. Applicant who was at first denied purchase of a pistol on the basis of incorrect information could not, therefore, collect damages. Deschamps v. Mason County Sheriff's Office, No. 30432-5-II, 96 P.3d 413 (Wash. App. Division 2 2004).

First Amendment

     City's action of issuing a convicted sex offender a letter permanently banning him from all city parks did not violate his First Amendment rights or his right to due process of law. The action was not aimed at punishing the offender for his thoughts, a federal appeals court ruled, but rather was aimed at preventing his conduct of going to parks to search for children to satisfy deviate desires, and any impact on his First Amendment right to freedom of thought was incidental. The court also found that the city's action was the narrowest reasonable means of promoting a compelling interest of protecting children from him when he admitted that he was a "sexual addict" and would always have "inappropriate urges" towards children. Doe v. City of Lafayette, Indiana, No. 01-3624, 377 F.3d 757 (7th Cir. 2004). [PDF]

Freedom of Information

     New York high court orders further proceedings on city's denial of freedom of information law requests for police officer "use of force" forms when the city admitted, during oral argument, that it did not use the type of form sought, but did have incident and arrest reports which might include references to the use of force, which it would be willing to disclose after the removal of certain information. The trial court was instructed to provide direction concerning which documents should be produced and reviewed by the court or a referee before disclosure to the plaintiff, a civil liberties organization. N.Y. Civil Liberties Union v. City of Schenectady, 2 N.Y.2d 657, 814 N.E.2d 437 (N.Y. 2004). [PDF]

Governmental Liability: Policy/Custom

     Woman arrested for alleged violation of a domestic violence protective order that she claimed she had not yet been served with could not pursue federal civil rights claim against town when there was no assertion that any official municipal policy had caused the arrest. The mere fact that the magistrate who issued the warrant for her arrest, and the sheriff who supervised the office which allegedly failed to serve her with the protective order were both municipal employees did not alter the result. Cole v. Summey, 329 F. Supp. 2d 391 (M.D.N.C. 2004).

     An arrestee's mere conclusory statement in his federal civil rights complaint that a county was somehow involved in the alleged unlawful use of a trespass form (forbidding the arrestee to enter a Home Depot hardware store) by the local prosecutor and village police officers to prosecute him was insufficient to impose municipal liability on the county. No official policy or custom by the county was shown, and a municipality and its agencies cannot be held liable under federal civil rights statutes merely for the "isolated" allegedly unconstitutional actions of its employees. Vineyard v. County of Nassau, 329 F. Supp. 2d 364 (E.D.N.Y. 2004).

Negligence: Vehicle Related

     Postal inspector's undercover vehicle qualified as a "police vehicle" under a New York statute granting qualified exemptions from traffic laws when engaged in emergency operations. The defendant inspector did not act in "reckless disregard" of others' safety in following a person under surveillance through a red light. The U.S. government was not, therefore, liable under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for injuries to another motorist in an ensuing traffic accident. Hodder v. United States, 328 F. Supp. 335 (S.D.N.Y. 2004).

     A genuine issue of fact as to whether the driver of an emergency vehicle that proceeded through a red light while responding to a fire should have seen the motorist's vehicle that he collided with precluded summary judgment for the defendant city in a personal injury lawsuit by the motorist. While Florida law allowed the emergency vehicle to proceed through a red light, and the driver had his lights and sirens engaged, he was not relieved, under the statute, from the duty to "drive with due regard for the safety of all persons" or from liability for conduct in "reckless disregard" of such safety. Evans v. City of Miramar, No. 4D03-3895, 879 So.2d 684 (Fla. App. 4th Dist. 2004). [PDF]

Procedural: Discovery

     Plaintiff in federal civil rights lawsuit against officers and city claiming summons was improperly issued to him in retaliation for his exercise of First Amendment rights and because of racial animus was not entitled to disclosure of a defendant officer's home address for the purpose of asking whether neighbors had overheard officer make racist remarks. Trial court also rejects plaintiff's arguments that plaintiff was entitled to disclosure of officer's home address for the purpose of aiding his investigation of her ability to pay punitive damages. The officer's interests in privacy and safety outweighed the plaintiff's "extremely weak" interest in obtaining her home address, the court rules. Collens v. City of New York, 222 F.R.D. 249 (S.D.N.Y. 2004).

     Plaintiffs who sued a municipality for alleged civil rights violations in connection with at least two instances of trespass upon their premises were not entitled to pursue their lawsuit if they persisted in asserting their privilege against self-incrimination in response to discovery questions concerning the use and occupancy of the premises and whether they or others lived there. While they had a constitutional right under the Fifth Amendment not to answer such questions, the failure to provide such information would prevent the municipality from properly defending itself in the lawsuit, and the privilege against self-incrimination, which is intended to be used solely as a "shield" cannot be used as a "sword to harass a defendant and to effectively thwart any attempt" by a defendant at a pretrial discovery proceeding to obtain information relevant to the cause of action alleged and possible defenses to it. Nasca v. Town of Brookhaven, 781 N.Y.S.2d 137 (A.D. 2nd Dept. 2004).

Public Protection: Crime Victims

     Police officer could not be held liable for failure to protect the plaintiff under a theory of "state-created-danger" when the plaintiff was "unknown" to the officer at the time of the incident in question. Under the "state-created-danger" theory of liability for failure to protect, the appeals court stated, liability exists "only if the state actor is aware of an immediate danger facing a known victim." Lester v. City of College Station, No. 03-20906, 103 Fed. Appx. 814 (5th Cir. 2004). [PDF]

Racial Discrimination

     Officer's action in stopping a vehicle driven by an African-American motorist did not constitute racial discrimination when he made the decision to do so based on a problem with the license number of the car, which was for another vehicle, and suspicion that it was the car used in an earlier crime, prior to seeing the motorist. Wright v. Santopietro, 325 F. Supp. 2d 79 (D. Conn. 2003).

Search and Seizure: Home/Business

     The factual question of whether officers reasonably believed that their warrantless entry into a home was necessary for the safety of the residents in light of the behavior of a man with "mental problems" inside was for the jury to decide, so that a trial court properly denied the plaintiffs summary judgment on their federal civil rights lawsuit against the officers. The officers contended that their warrantless entry was justified by the man's extreme agitation at the door to the residence, his statement that he would "like to kill" the police, and the presence of his elderly parents inside, as well as their apparent inability to calm their son down. Deloreto v. Karengekis, No. 03-7709, 104 Fed. Appx. 765 (2nd Cir. 2004). [PDF]

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

     Book: Highway Safety Desk Book. (September 2004). [PDF] Prepared by the Highway Safety Committee, International Association of Chiefs of Police (IACP), the entire 374 page book is available online. Intended for police leaders as a quick and practical compendium of information to assist in asserting leadership in one of policing's most important functions, Police Traffic Services.

     Historical Materials: Biographies of the first U.S. Marshals appointed by President George Washington on September 24, 1789, following the passage of the first Judiciary Act. From this small group of 13 Marshals, the U.S. Marshals Service has grown today to more than 4,500 Marshals nationwide. The Service has begun a year long celebration of their agency's 215th anniversary as the nation's oldest federal law enforcement agency.

     Publication: COPS POP Guide: Identity Theft by Graeme R. Newman (78 pgs., June 2004) [PDF] NCJ 205701 U.S. Department of Justice, Office of Community Oriented Policing Services (COPS). This guide addresses the problem of identity theft and reviews the factors that increase the risk of it. Identity theft is a new crime, facilitated through established, underlying crimes such as forgery, counterfeiting, check and credit card fraud, computer fraud, impersonation, pick pocketing, and even terrorism.

     Publication: COPS POP Guide: Crimes Against Tourists by Ronald W. Glensor and Kenneth J. Peak (54 pgs. August 2004) [PDF] NCJ 206408 U.S. Department of Justice, Office of Community Oriented Policing Services (COPS). This guide describes the problem of tourist crime and reviews the factors that contribute to it. It identifies a series of questions to help readers analyze their local problem and a number of measures that can be taken to address the problem.

     Publication: Identity Theft, by the U.S. Postal Inspector's Office, Publication No. 280. [PDF]

     Publication: Law Enforcement Guide to Postal Crimes, by the U.S. Postal Inspector's Office, Publication No. 146. [PDF].

     Publication: Updated Manual of Police Traffic Services Policies and Procedures. (July 2004). [PDF] An updated compilation of sample traffic policies, initially created by IACP, in cooperation with the U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) nearly three decades ago. The current 130 page document, now available online, will help promote an effective traffic management system that provides public security, reduces traffic crashes, discourages traffic violations, suppresses criminal activity, and expedites the flow of traffic.

     Terrorism/Homeland Security: President Bush orders a common identification card standard for access to federal facilities. Homeland Security Presidential Directive No. 12 (2004).


     • Abbreviations of Law Reports, laws and agencies used in our publications.

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

Cross References

Featured Cases:

Assault and Battery: Positional Asphyxia -- See also, Assault and Battery: Chemical
False Arrest/Imprisonment: No Warrant -- See also, Defenses: Qualified Immunity
False Arrest/Imprisonment: No Warrant -- See also, False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use -- See also, Arrestee Suicide/Suicide by Cop
Search and Seizure: Home/Business -- See also, Search and Seizure: Search Warrants
Strip Searches -- See also, Search and Seizure: Search Warrants

Noted in Brief Cases:

Assault and Battery: Physical -- See also, Assault and Battery: Handcuffs & Restraints
Assault and Battery: Physical -- See also, Defenses: Qualified Immunity  
Domestic Violence -- See also, Governmental Liability: Policy/Custom (1st case)
Federal Tort Claims Act -- See also, Negligence: Vehicle Related (1st case)
First Amendment -- See also, Procedural: Discovery (1st case)
Racial Discrimination -- See also, Procedural: Discovery (1st case)
Search and Seizure: Home/Business -- See also, Administrative Liability: Supervision

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