CONTENTS

Police officer working as hospital security guard did not use excessive force in stopping possibly intoxicated and hallucinating man who was running toward glass exit doors which were locked. Neither officer nor the city which employed him was liable for the man's subsequent death, allegedly from injuries suffered in a fall when the officer grabbed him.

     A police officer working as a security guard for an Arkansas hospital, while wearing his police uniform, a gun, and his badge and handcuffs, encountered a man who had been brought to the emergency room by ambulance with symptoms consistent with alcohol withdrawal. A nurse had requested that the officer find the man, who had wandered from his hospital room.

     When the officer found him, the man had pulled out his intravenous tube and appeared to be "talking" to imaginary people. The officer, who thought that the man might be under the influence of an unknown substance, told him he was under arrest and started to escort him back to his room.

     The man refused to enter the room and darted towards the exit doors leading to the ambulance bay, with the officer in pursuit. They passed through a first set of glass and steel doors which automatically opened, but the second set of doors was locked and did not open. The officer reached the man between the two sets of doors, grabbing him, and the two fell to the floor, at which point the man hit his head and cut his left eyebrow. The officer placed him under arrest for public intoxication and failure to comply with a lawful order, and then returned him to his room, where he allegedly continued to hallucinate. He died eight days later, of "hypoxic encephalopathy caused by an acute subdural hematoma" allegedly caused by blunt-force head trauma.

     The man's mother, as the executor of his estate, sued the city and the officer, as well as the hospital and various medical personnel. Medical negligence claims were settled, and the trial court granted summary judgment to the city and officer on federal civil rights claims, after finding that the plaintiff had failed to show a viable claim of a constitutional violation resulting from a city policy or custom, and that the officer had not violated any clearly established constitutional rights and was therefore entitled to qualified immunity.

     A federal appeals court agreed, finding that there was no unreasonable seizure or unreasonable use of force in violation of the Fourth Amendment.

     The officer acted reasonably under the circumstances since the man was disoriented and exhibiting signs of lacking mental control and was "barreling" toward glass doors that the officer knew were locked and would not open. Under these circumstances, even if the officer's actions could be viewed as "tackling" the man, as the plaintiff argued, doing so, to prevent the man from crashing into the glass, potentially injuring himself severely, was reasonable.

     The officer also needed to act swiftly, and it was only with hindsight that anyone could reach the conclusion that the use of force led to the fall, the fall led to the head trauma, and the head trauma led to the man's death. Far from being excessive, any reasonable officer on the scene would have recognized the danger posed to the man and taken "whatever action" possible to help him avoid crashing into the second set of glass doors.

     McVay v. Sears, No. 03-3948 2005 U.S. App. Lexis 3626 (8th Cir.).

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Defendant mayor and police officer were not entitled to qualified immunity in lawsuit in which political opponent of mayor claimed both attacked him while he was driving a sound truck for an opposition party. Summary judgment was not granted on the basis of widely different factual accounts of what actually happened.

     A man in Puerto Rico was driving a sound truck for one of the island's two main political parties near a local headquarters of the other party during election week when he became involved in an argument and physical fight with the city's mayor and other people on the street, after which an officer sought to intervene after the man allegedly hit the mayor.

     The man claimed that rocks were thrown at his vehicle, and that when he stopped to examine the damages, the officer arrived in her police car and questioned him, at which point the mayor arrived with a "mob" of supporters, told the officers that he would "handle" the matter, and then struck him in the face with a blackjack, after which the officer struck him with her baton when he hit back at the mayor, and the crowd then allegedly joined in the attack on him.

     Based on these events, the sound truck driver brought a federal civil rights lawsuit against the mayor, the officer, the municipality and the police commissioner, claiming that the mayor and officer had both wrongfully struck him, and together participated in and directed an attack on him, as well as failing to protect him when he was being beaten. He also claimed that his exercise of his First Amendment rights was the reason for these actions.

     The defendants argued, to the contrary, that the plaintiff had driven by his sound truck blasting and had stopped there, dismounted, got into an altercation with a 15-year-old boy, and struck the boy, breaking his glasses, and resulting in subsequent fighting. The officer claimed that she had arrived at the scene after the fight had broken up and that the mayor had asked her to file a complaint against the man for assaulting the boy, but was unable to arrest him because the large crowd then attacked him, and only dispersed after paramedics arrived on the scene.

     The defendant mayor and officer sought summary judgment on the basis qualified immunity, which the trial court denied. A federal appeals court upheld this result.

     Summary judgment, the trial court found, would be improper because there were so many factual disputes concerning what actually happened, since the versions told by the plaintiff and defendants had so little in common with each other.

     Further, if the plaintiff's version of the events were true, qualified immunity would not be available to the defendants.

     The plaintiff's claim against the officer, the appeals court noted, was weaker, because even in his version of events, he had struck the mayor, even if in purported self-defense, because the officer allegedly hit him.

This is a very dubious claim of excessive force; Rodriguez has admitted striking the mayor and, whether or not the mayor struck first, Medina probably would have been acting reasonably (and thus lawfully) if she used her baton to prevent a second blow by Rodriguez or hit him by accident in trying to break up the crowd gathering around him or for any of several other defensible reasons. Furthermore, for qualified immunity she would not even need to show that her judgment was correct but only that a reasonable police officer could in the circumstances have reasonably believed that this step was not legally excessive.

     The problem, however, was that the officer herself never explained what set of circumstances would cause herself or a reasonable officer to have struck the man. Her own version of the incident did not indicate whether she struck him at all, and, if so, why she needed to strike him incident to an arrest or otherwise. There was no indication that the man was poised to strike another blow or to flee, or that the blow by the officer was light and accidental.

     As for the mayor, if he did, as the plaintiff alleged, strike the man first, or in retaliation for his expression of his political opinions, he would not be entitled to qualified immunity because, if he were acting as a state actor, "the action would not be even arguably lawful; and if he were not a state actor, immunity would again not be available because the purpose of immunity is to protect persons acting in an official capacity. While the latter conclusion would defeat the federal civil rights claim, the issue is not properly before us."

     The appeals court emphasized that it was only affirming the judgment as to the claim by the defendants that the trial court erred on an issue of law concerning qualified immunity, and was not expressing any view as to the merits of the case or made a mistake in believing that factual disputes barred qualified immunity.

     Rodriguez-Rodriguez v. Ortiz-Velez, No. 03-2123 391 F.3d 36 (1st Cir. 2004)

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Federal trial court properly dismissed both state law and federal claims asserted by a woman concerning injuries allegedly inflicted on her by a police officer, even though the defendants failed to raise their statute of limitations defense on the original state law claims in state court until after answering an amended complaint. Federal appeals court decision discusses relationship between statutes of limitations on state and federal claims in Illinois in a case removed to federal court from state court.

     A woman filed a lawsuit in state court in Illinois asserting state-law claims against a municipality and one of its police officers for injuries allegedly inflicted on her by the officer on September 25, 1998, almost two years before September 22, 2000, the date her complaint was filed. The defendants answered an amended version of the complaint, but failed to raise any affirmative defenses, such as statute of limitations. (An affirmative defense is one which ordinarily must be specifically raised, or else it is waived).

     Almost two years later, the defendants sought to dismiss the lawsuit on the basis that the claims were barred by a one-year statute of limitations. The plaintiff, with permission of the court, then filed another amended complaint based on the same incident, but asserting federal civil rights claims for violation of constitutional rights under 42 U.S.C. Sec. 1983 for the first time in the case.

     The defendants then removed the case to federal court, and moved to dismiss, contending that all the claims were now time-barred, and the trial court granted this motion.

     A federal appeals court upheld this result, rejecting the plaintiff's argument that the defendants had waived their statute of limitations defense by failing to raise it at the earliest possible time.

     While a two-year statute of limitations generally applies to personal injury actions in Illinois, and this statute is also applicable to Sec. 1983 claims, state law claims against Illinois local governmental entities and their employees must be filed within a one-year time period. Therefore, the plaintiff's state law claims were already time-barred when they were first brought.

     Further, the federal civil rights claim asserted for the first time by the plaintiff almost five years after the incident did not "relate back" to her original claim, because in order for it to do so, the original state law claims must be brought in a timely manner, within the applicable one year statute of limitations.

If an original complaint against Illinois local governmental defendants is not filed within one year of the injury and does not claim a constitutional violation, we will not deem a later § 1983 claim timely merely because it rests on the same factual allegations included in the original complaint. As the original complaint was not timely, it cannot "act as a lifeline for a later complaint, filed after the two-year statute of limitations for the claims which it contained." Thus, even though Williams' § 1983 claim arises from the same incident as her tort claims, and even though her original complaint was filed within two years of that incident, her § 1983 was time-barred because the tort claims were not timely filed.

     The plaintiff's argument that the defendants waived their limitations defense was "frivolous," the appeals court found, on the federal civil rights claims, since the defendants moved to dismiss it as soon as she amended her complaint to add it.

     This left only the issue of whether the defendants waived the statute of limitations defense on the state law claims by raising it only after they had already answered an amended complaint. The federal appeals court inferred, however, that the state court judge had implicitly allowed the defense to be raised on the state law claims, since rather than denying the motion, he granted the plaintiff leave to amend her complaint.

     The appeals court rejected the argument that the state court trial judge abused his authority in doing so. By allowing the plaintiff time to respond to the defendants' limitations defense by filing an amended complaint, the trial judge eliminated any possible prejudice to her in these circumstances. Because the plaintiff did not suggest that any prejudice occurred to her from the defendants' delay in raising their statute of limitations defense on her state law claims, "other than her subsequent preparation for trial," the state court did not abuse its discretion in allowing the defense.

     The federal trial court, therefore, was correct in dismissing the federal and state claims in their entirety, the federal appeals court held.

     Williams v. Lampe, No. 04-1497 2005 U.S. App. Lexis 3430 (7th Cir.).

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Wheelchair bound woman failed to show that city police engaged in intentional disability discrimination in stopping her or arresting her for riding her wheelchair in the street, even though she did show that the city violated federal accessibility requirements in failing to provide proper curb cuts on the streets. She was not entitled to an award of attorneys' fees as a "prevailing party," because she failed to obtain any specific relief from the trial court.

     A disabled woman who uses a wheelchair or motorized scooter to move sued an Ohio city and a number of city employees under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, 42 U.S.C. § 1983, and various Ohio state law provisions. She claimed that the city violated the ADA by failing to install proper curb cuts, so that she was forced to ride her wheelchair in the street, instead of on the sidewalk, and that city police officers violated her rights by stopping her, and, on several occasions, arresting her for riding her wheelchair in the street.

     While summary judgment was initially granted to all defendants on all claims by a federal trial court, on the plaintiff's motion for reconsideration, the court found merit to some of her claims, but found that her request for injunctive relief had become moot. Both parties filed motions of appeal, and the plaintiff asked for an award of attorneys' fees and costs. The trial court denied this request, finding that even if the plaintiff was a "prevailing party," she was not entitled to any fees.

     The plaintiff had sought an injunction against city officials and police officers to prevent them from "arresting or otherwise harassing her" in the city, and to prevent them from installing or changing any buildings, streets or walkways in the city unless the changes complied with ADA requirements.

     When the trial court granted reconsideration of summary judgment for the city, it found that the city violated the ADA by failing to install proper curb cut sand ramps at numerous intersections, but denied all other relief. In denying attorneys' fees, the trial court found that the plaintiff's success and its impact on the defendants, "if any," was so limited as to represent a mere "moral or pyrrhic victory."

     The appeals court noted that based on an earlier case, Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004), the plaintiff did have a private cause of action under the ADA to pursue claims challenging a municipality's failure to comply with disability access regulations.

     The appeals court, however, rejected the plaintiff's claim that police stopped, challenged, and "harassed" her "because she is disabled," and failed to make reasonable accommodation for her. The court found that the record reflected that the police did not stop her because of her disability, but in response to citizen complaints about her being in the roadway, requiring vehicles to "stop or swerve" to miss striking her, or allegedly endangering a "small child" who was reportedly laying across her lap as she drove her wheelchair in the road. Because the officers were discharging their duties in investigating the complaints and keeping the roadways safe for both the plaintiff and passing vehicles, their actions were not intentional discrimination.

     The appeals court also upheld trial court rulings that the plaintiff had no meritorious claims for false arrest or malicious prosecution, or for inadequate training of one of the officers who stopped her.

     On the issue of attorneys' fees under 42 U.S.C. Sec. 12205, an ADA plaintiff must be a prevailing party, and to be that, one must materially alter the legal relationship of the parties, so that the defendants' behavior is modified in a way that directly benefits the plaintiff, the court stated.

     The decision to award no attorneys' fees in this case was appropriate, as the plaintiff only prevailed on the issue of whether the city violated the ADA with respect to the accessibility of its curbs, but obtained no relief because another judge in another case had previously granted injunctive relief in a class action which made her request for an injunction essentially moot. Her victory, therefore, did not "materially alter the legal relationship between the parties."

     While the plaintiff claimed that the alleged harassment she had previously been experiencing stopped, there was no evidence before the court on this, and no injunction had been issued. Therefore, even if the defendants had been "harassing" her before, and stopped doing so, "it was not the result of a judgment, consent decree or settlement obtained through the judicial process and therefore does not confer prevailing party status" on her. Finally, the appeals court stated, even if the plaintiff were a "prevailing party," the trial court did not abuse its discretion in concluding that "the only reasonable attorneys' fees are none at all," based on the failure of the plaintiff to obtain specific relief.

     Dillery v. City of Sandusky, No. 03-3465,  2005 U.S. App. Lexis 2882 (6th Cir.).

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Jury could properly find that officer's use of police dog to detain suspect following high-speed pursuit of car was proper when he then believed she was a burglary suspect and was attempting to flee arrest. Exclusion of testimony of expert witness was not an abuse of discretion when his testimony would be irrelevant to whether the officer acted in a reasonable manner.

     A passenger detained and injured by a police dog after officers had engaged in a high-speed pursuit of the car, believing it contained burglary suspects, claimed that the use of the dog was an unconstitutional use of excessive force.

     The jury returned a verdict for the defendants in the lawsuit, and the plaintiff appealed. A federal appeals court upheld the result in the trial court, including the dismissal of claims against the city on the basis of the jury verdict in favor of the officers.

     The plaintiff claimed that she was walking home when an acquaintance offered her a ride, which she accepted. Police officers, shortly thereafter, attempted to pull the vehicle over because of a non-functional license plate lamp. When the driver refused to stop, the high-speed chase began, and the officers were subsequently informed that the vehicle they were chasing was allegedly involved in a burglary earlier in the night. The chase ended when the pursued vehicle hit a wall.

     When the passenger emerged from the car, an officer who arrived on the scene claimed that she ignored his command to stop and attempted to flee the scene, whereupon he ordered his police service dog, "Bart," to apprehend her. Bart did so, and "latched firmly" onto her. The driver of the pursued vehicle then attempted to drive off, and the officer ordered the plaintiff, with the dog still firmly attached to her, away from the rear of the car. The driver was then apprehended and the officer removed the dog from the plaintiff and took her into custody.

     A federal appeals court rejected the plaintiff's argument that the trial court should have set aside the jury's verdict for the defendants and entered judgment for her as a matter of law. It did not agree with her that the evidence was such that the only "rational conclusion" was that the officer used excessive force in using the dog to effectuate her arrest.

     The appeals court noted that it had not previously considered whether the use of a police dog is considered deadly force, and that if it were, then the officer would only have used reasonable force in using the dog if it were shown that the plaintiff posed an "immediate threat" to the officers or others. However, other federal appeals courts considering the question have held that it is not deadly force to use a police dog, and "for the purposes of this case, we assume that use of a police dog is not deadly force ipso facto."

     In this case, there was evidence to support the jury's conclusion that the officer was objectively reasonable in ordering his dog to apprehend the plaintiff. He believed that he was faced with two potentially armed burglary suspects, and the driver and passenger appeared to match the descriptions of the robbery suspects heard over the radio. The high-speed chase that had just ended indicated that the plaintiff might be a danger to the public and was willing to attempt to evade arrest, an impression further supported by the fact that she attempted to run away when exiting the car. The officer was then the only officer at the scene and was required to secure two felony suspects, which also supported the use of the dog as a reasonable measure.

These pieces of evidence portray a tense and rapidly evolving situation in which a lone officer was confronted with two potentially armed robbery suspects who had just led police on a reckless high-speed chase. In this context, a jury could rationally reach the conclusion that [the officer], making a "split-second judgment[] in [a] difficult circumstance[]," acted reasonably when, after warning Marquez [the plaintiff] to halt, he ordered his police service dog to apprehend [her].

     The appeals court also ruled that the exclusion of the testimony of the plaintiff's expert witness that the use of a police dog is objectively reasonable only where there is evidence of an "articulable threat to" the safety of either the officer or a bystander, was proper.

     The appeals court rejected the argument that this testimony should have been admitted since it would have been helpful to the jury in determining whether the officer used a reasonable amount of force.

     The trial court properly used its discretion in holding that the testimony regarding the minimum use of force was irrelevant on the ground that the Fourth Amendment does not require police officers to use the least intrusive amount of force, and that testimony the expert sought to introduce regarding law enforcement standards was both irrelevant and confusing on the ground that the violation of such standards is not in themselves a Fourth Amendment violation. These rulings, the appeals court found, were supported by "well established precedent."

     The Fourth Amendment does not require officers to use the "least intrusive means" in the course of making an arrest, only "reasonable ones." Further, any violations of state law and police procedure, by themselves, generally do not give rise to a federal civil rights claim for excessive force, the court noted.

     The only issue for the jury was whether the officer acted as a "reasonable officer" in ordering the dog to detain the plaintiff. Whether he used the minimum amount of force to do so, and whether he violated some "well established police procedure," the court found, "are only tangentially related." Even if the jury found that he used more than the minimum amount of force necessary and violated police procedure, the jury could still find that he acted reasonably, so that excluding the expert's testimony was not an abuse of discretion.

     The appeals court rejected a number of other claims asserted by the plaintiff, including those involving alleged misconduct by an "expert juror" with some knowledge of dog training, and the dismissal of claims against the city, following the jury's verdict in favor of the officer.

     Marquez v. City of Albuquerque, No. 02-2294, 2005 U.S. App. Lexis 3299(10th Cir.).

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Employee of Government Printing Office arrested by GPO special police officer could not pursue a federal civil rights lawsuit for unlawful arrest under 42 U.S.C. Sec. 1983 since the officer did not act under color of District of Columbia law, but under the authority of federal law, even though he arrested the employee for violating a D.C. statute against disorderly conduct.

     A man in the District of Columbia claimed that he was unlawfully arrested by a special police officer employed by the U.S. Government Printing Office (GPO). A federal appeals court held that the plaintiff could not pursue a federal civil rights claim under 42 U.S.C. Sec. 1983 because the officer did not act under color of District of Columbia law, and upheld summary judgment in the officer's favor.

     Federal law authorizes GPO special police officers to make arrests for violations of the laws of the U.S., the states, and the District of Columbia, as well as to enforce the regulations of the Public Printer, including the removal from GPO premises of individuals who violate those regulations. This is spelled out at 44 U.S.C. Sec. 317.

     While on duty one afternoon, one of these officers asked to see the id badge of the plaintiff, a disabled African-American who worked at the GPO's office who was returning to the building after mailing a letter. According to the plaintiff, he showed his badge and the officer confiscated it, grabbing him when he protested, and dragging him across the lobby, slamming him head-first into a brass door at the entrance. According to the officer, however, the plaintiff refused to show his badge, used profanity, and threatened the officer with a cane, whereupon the officer took him to the GPO police office without the arrestee coming into contact with the door.

     The arrest was for disorderly conduct, a misdemeanor offense under the D.C. Code. The arresting officer and a fellow officer then took him to the local D.C. police station where he was detained for several hours and formally charged.

     On appeal from the dismissal of his federal civil rights claim, the plaintiff argued that the officer acted "under color of" D.C. law for purposes of 42 U.S.C. Sec. 1983, because the offense charged was a violation of D.C. law. Sec. 1983 claims can only be brought if the defendant acted under color of the law of "any State or Territory or the District of Columbia." Those acting under color of federal law are not included.

     The appeals court agreed with the officer that since no D.C. officials encouraged him to make the arrest and since his power to make such arrest comes solely from federal law, he did not act under color of D.C. law, and rejected the plaintiff's "but for" argument that but for the fact that the District has enacted a disorderly conduct statute, the officer could not have arrested him for violating it.

In cases under section 1983, circuit courts looking at whether defendants have acted "under color of" state law have thus focused on whether these defendants are state officials or have conspired with state officials in committing the alleged illegal acts.

     Agreeing with this approach, the appeals court concluded that the officer's arrest of the plaintiff could not be "fairly treated" as that of the District of Columbia.

     The appeals court noted that plaintiffs alleging abuse by federal officials "are not without a remedy," but such claims must be brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In this case, however, the plaintiff brought no such claim.

     Williams v. U.S., No. 03-5316, 396 F.3d 412 (D.C. Cir. 2005).

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Probable cause, rather than reasonable suspicion, was required to make a mental health seizure of an individual during an investigation of a report that he was suicidal. Probable cause was not present when the 77-year-old retired farmer, who was hunting groundhogs, complied with the deputies' orders to put down his rifle and walk towards them.

      A federal appeals court has overturned summary judgment in a lawsuit against a police officer claiming unreasonable seizure, finding that the plaintiff arrestee set forth allegations which, if true, showed that the arrest was made without the probable cause that is required in order to make a mental health seizure.

     The plaintiff, a 77-year-old retired farmer, had gone out one afternoon to shoot groundhogs, which he routinely did in an effort to help protect his neighbors' crops in the rural farming area. He was dressed in bib overalls, according to the court's decision, and had taken with him a folding chair, a rifle, and a tripod to help him aim the rifle and hold it steady. He positioned himself, sitting in the folding chair, upon an elevated railroad grade on one of his neighbor's property.

      Someone passing by noticed him off in the distance sitting on railroad tracks, and phoned the county sheriff's department, incorrectly reporting that a possibly suicidal man had his feet tied to the railroad tracks. Two deputies, who are husband and wife, were dispatched, and from 250 yards away used their vehicle's microphone and speaker system to arouse his attention and instruct him to come towards them.

     When the deputies noticed, as the man walked towards them, that he had a rifle slung over his shoulder, they drew their firearms, crouched behind their open cruiser doors, and ordered him to lay down the rifle. He complied, and then complied with further instructions to lay down his folding chair and tripod.

     When he reached them, they ordered him, at gunpoint, to lay face down on the roadway, and handcuffed him behind his back. He immediately went into cardiac arrest. He was subsequently taken to a hospital for emergency care, and survived, but suffered permanent disability as a result of the incident.

     On his civil rights lawsuit claiming that the officers violated his constitutional rights against unreasonable search and seizure without probable cause, the trial court determined that the officers were entitled to qualified immunity, and also found that there were no grounds for a claim against the sheriff for failure to adequately train and supervise his deputies.

     The appeals court rejected the argument that the officers only needed reasonable suspicion that the plaintiff was suicidal to support a mental health seizure, finding that probable cause is required to support a mental health seizure.

     The trial court had ruled that the officers did not arrest the plaintiff but rather restrained him as part of an investigative stop. The trial court also found that when probable cause is lacking, officers may, on the basis of an articulable and reasonable suspicion that a man might harm himself or others, make such an investigative stop for mental health purposes.

     The federal appeals court disagreed. It found that the plaintiff was seized, and that the defendant deputies conceded that they were not responding to a report of criminal activity, and never suspected the plaintiff had engaged in or was about to engage in any crime.

Absent suspected criminal activity, in this circuit a law enforcement official may not physically restrain an individual merely to assess his mental health. Rather, we have established that in the context of a mental health seizure an officer must have probable cause to believe that the person seized poses a danger to himself or others. [...] A showing of probable cause in the mental health seizure context requires only a "probability or substantial chance" of dangerous behavior, not an actual showing of such behavior. Just as actual innocence will not render invalid an arrest that is properly based upon probable cause that criminal activity was occurring, a mental health seizure can rest upon probable cause even when the person seized does not actually suffer from a dangerous mental condition.

     In this case, the deputies were unable to demonstrate that they had probable cause to believe that the plaintiff was a danger to himself or others. When they arrived, his response to their request that he walk towards them showed that he was not "tied" to the railroad tracks as had been reported, which alone would have caused a reasonable officer to question the veracity of the reported attempted suicide. The plaintiff complied with the officers' orders to put down his rifle, and he proceeded towards them in a normal manner for an individual of his age.

Even after Fisher arrived at the road and it became apparent that he was a man of his later years and dressed in hunting attire, the officers still did not make any inquiry of him, his purpose for being there, or the activity in which he was seemingly engaged at the time of their arrival. Instead, with their firearms continually trained upon him, they ordered Fisher to get face-down on the roadway and handcuffed him behind his back.

     Given that the plaintiff did nothing suspicious or threatening, and did nothing to make them afraid, there were "simply no facts" from which a reasonable officer could have found that the plaintiff posed a danger to himself or others at the time he was seized. Accordingly, viewing the facts in the light most favorable to the plaintiff, a Fourth Amendment violation would be established.

     The appeals court also found that the force used by the deputies elevated their seizure of the plaintiff from a mere investigatory stop to an arrest, and that the deputies alleged actions violated clearly established law, so that they were not entitled to qualified immunity.

     The appeals court, however, found no adequate indications of inadequate training of the deputies on the part of the county sheriff, and therefore upheld the dismissal of claims against him.

     Fisher v. Harden, No. 02-3996, 2005 U.S. App. Lexis 3276 (6th Cir.).

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Appeals court upholds injunction against city using ordinance prohibiting structures on a public right of way to prohibit, under threat of arrest or citation, union's use of a large "rat" balloon during demonstrations against a car dealership for alleged unfair labor practices.

     An Ohio city appealed from a federal trial court's grant of a preliminary injunction which prohibited it, on First Amendment grounds from enforcing an ordinance against a union and its members in their use of a "rat" balloon as part of demonstrations on a public right-of-way.

     A union official and several of his fellow union members had picketed a car dealership on three occasions for alleged unfair labor practices, with the protests all taking place in the public right of way between the dealership and a highway. In each instance, there were between 25 and 40 protesters and the demonstration generally lasted about an hour and a half. During the protests, the union official and his colleagues held signs and also displayed an inflatable rat balloon measuring approximately 12-feet high and eight feet in diameter. "The rat has long been used as a symbol of efforts to protest unfair labor practices." The balloon they used could be inflated or deflated within five to ten minutes, and was temporarily secured to the ground with stakes to ensure that it did not tip over.

     The city objected to the use of the balloon based on a municipal ordinance prohibiting "structures" in the public right-of-way. While the ordinance originally defined structure as construction requiring a permanent location on the ground, the city later amended the definition of "structure" with the express intent of covering the union's use of the rat balloon.

     The amendment defined a "structure" in relevant part as "any object, whether permanent or temporary, including, but not limited to, non-public signs, that is constructed, erected or placed in a stationary location on the ground or is attached to or placed upon an object constructed, erected, or placed in a stationary location on the ground." In passing the ordinance, the city council included a preamble stating that its purpose was "to amend its codified ordinances to further clarify that objects such as the inflatable rat are prohibited from the public right-of-way whether placed there on a temporary or permanent basis."

     No arrests were made during the first demonstration, while at the second one, police warned the protesters that they would be arrested if they did not remove the balloon, and they then deflated it. During the third protest, the union official and his fellow union members displayed the balloon again, and he was given a citation for violating the ordinance.

     In upholding the injunction against the application of the ordinance to the rat balloon, a federal appeals court noted that there was no indication that the protests, including the use of the balloon, created any obstruction or safety hazard.

     The appeals court found that the trial judge did not abuse his discretion, based on his findings that there was a very high likelihood of success on the merits of the union official's claim that he had a First Amendment right to use "portable, non-obstructive props to disseminate information in a public right-of-way on a temporary or limited basis." The balloon's use was not shown to harm others.

     The appeals court found that there was "no question" that the use of a rat balloon to publicize a labor protest is constitutionally protected expression. While courts have generally refused to provide First Amendment protection to the placement of objects on public property where the objects are permanent or not easily moved, the balloon in this case was "temporary and easily movable," and only used during the brief union protests, and had not been shown to cause any danger that could justify a restriction of the balloon's use, according to the court.

     The trial court also found, however, that the ordinance here was not a content-based restriction on speech, so the ordinance could be constitutional if applied if narrowly tailored to serve a significant government interest and left open other alternative channels of communication. In this case, the appeals court agreed with the trial judge that the ordinance did not appear to be narrowly tailored as applied to the union's use of the balloon.

In our view, the asserted government interests of keeping the public right-of-way clear and preserving the aesthetics of the community, while generally considered substantial, are simply not achieved any less effectively absent the application of the ordinance in this case. There is no objective evidence in the record before us suggesting that the temporary placement of the balloon in the public right-of-way has any adverse effects, such as obstruction of pedestrian or automobile traffic. By applying the ordinance to prohibit the temporary use of the balloon in this case, it therefore appears that the City has applied its ordinance in a manner that is "substantially broader than necessary" to achieve its interests.

     A strong dissent by one judge on the three judge panel expressed his belief that the union was unlikely to succeed on the merits and that the grant of the injunction was an abuse of discretion, and that the ordinance was a reasonable time, place, and manner regulation.

     Tucker v. Fairfield, No. 03-4508 2005 U.S. App. Lexis 2228 (6th Cir.).

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City was not liable for officer's shooting of a man in his home through a kitchen door window when he thought the man was threatening his wife with a gun. Plaintiffs failed to show a municipal policy of condoning the excessive use of force, and an expert's opinion that the city must have had such a policy simply because of the number of excessive force lawsuits filed was inadequate to create a genuine factual issue in the absence of any qualitative analysis of these past cases and their similarity to the current one.

     A man's neighbor called police to report a domestic disturbance of a man and a woman "screaming" at each other. An officer responding to the call heard two people inside screaming at each other from inside the house, and radioed for backup. Inside, through a window in the top half portion of the porch door, he saw the man and his wife facing each other, but could not make out what they were saying. He also observed two rifles on the kitchen countertop and saw that the man had a handgun in each hand.

     As the woman reached for the kitchen door, presumably to unlock it, the officer saw the man begin to turn towards the woman, and his vision was partially obstructed so that he lost sight of the gun in the man's left hand, which he believed had "traveled up" to point at her. Based on the woman's expression and body language, the officer believed that there was no doubt that "she was in imminent danger" and that he was in secondary danger if the man saw him through the window, or knew of his presence because of the loud barking by his dogs.

     Based on his belief that the man was an immediate threat, the officer fired seven continuous rounds through the glass in the kitchen door at the man's left arm. Both the man and his wife subsequently claimed that they were merely putting away the guns, and that the man had started to walk away from his wife when he was shot. Seven bullets struck the man in his back and left arm, and he survived but is now partially disabled.

    The man and his wife did not sue the officer at all, but rather chose to sue the police department under a theory of municipal liability. The trial court ruled that the plaintiffs failed to show the existence of any departmental policy condoning the use of unlawful excessive force against suspects, and granted the city summary judgment.

     A federal appeals court upheld this result.

     The plaintiffs had claimed that the city had an unwritten policy, practice, or custom of condoning the use of excessive force against potential suspects. To recover for municipal liability on the basis of an "inaction theory," where a purported policy of tolerating federal rights violations is unwritten but "nevertheless entrenched," a plaintiff must show:

(1) the existence of a clear and persistent pattern of [illegal activity]; (2) notice or constructive notice on the part of the [defendant]; (3) the [defendant's] tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and (4) that the [defendant's] custom was the "moving force" or direct causal link in the constitutional deprivation.

     The city presented affidavits that there had never been any prior complaints of excessive force against the officer who shot the male plaintiff, and that the department did not have any policy, custom or practice allowing officers to use excessive force against suspects, nor had any city policy-making official ever authorized or condoned any policy or custom of using excessive force. There was also evidence that the officer received proper training on the use of deadly force.

     In response, the plaintiffs merely pointed to statistical evidence gathered from forty-five suits filed against the police department, but not examining any details of these lawsuits beyond the allegations contained in the complaints, and an expert who stated that the number of formal civil suits filed against the department, based on his experience with other cities, indicated an informal unwritten policy, practice, or custom of tolerating excessive use of force, as well as the fact that a department investigation ruled that the shooting of the male plaintiff was justified.

     The complaints examined, however, involved uses of force ranging from a shooting to the infliction of a broken fingernail, and there was nothing to inform the court whether most of these complaints were serious or frivolous. In short, this evidence was "conclusory," and the plaintiffs' expert did not explain how he drew his conclusions from a list of complaints made against the department.

     The appeals court rejected the argument that based on the expert's alleged "vast expertise and experience alone," the trial court should have denied summary judgment because the plaintiff's expert "surmised that there must have been an unwritten policy of condoning excessive force." While the appeals court stated that it "need not doubt whether" the expert was qualified to assess "police operations," noting that his resume showed a long career in criminal justice, law, and education that all related to police training and operations, it stated that "being an expert does not lessen the burden one has in rebutting a motion for summary judgment."

     A federal trial court cannot take an expert's "word for it," and in this case, the expert offered no qualitative analysis of past cases and how they were similar to the present case. Accordingly, his conclusion that the police department "must" have an unwritten policy of condoning excessive force because of the mere number previously filed complaints was insufficient to create a genuine issue of material fact on which a jury could reasonably find that such a policy existed.

     The plaintiffs' argument that there was such a policy because the shooting officer's actions allegedly violated departmental policy, and the internal investigation still determined the shooting to be justified had the danger of inferring a municipal-wide policy "based solely on one instance of potential misconduct." That argument, taken to its logical end, would result in municipalities simply being held vicariously liable for the actions of their employees, which is impermissible under current federal civil rights law, which requires the showing of an official policy, custom or practice which caused a constitutional deprivation.

     In this case, there was no genuine issue of whether an illegal police department policy exists. Even if, as the plaintiffs claimed, the department failed to adequately investigate the shooting in question, this did not show a pattern of deliberate indifference that goes beyond the facts of the plaintiffs' own case.

     Thomas v. Chattanooga, #03-6308, 2005 U.S. App. Lexis 2024 (6th Cir.).

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State environmental agents did not violate a property owner's Fourth Amendment rights by entering his land without permission or a warrant to try to perform a regulatory inspection, in response to his own application for a permit to carry out construction on state regulated tidal wetlands.

     A New York homeowner appealed from a federal trial court's decision dismissing his federal civil rights lawsuit asserting Fourth Amendment claims relating to the entry onto his land by state environmental enforcement agents attempting to carry out a regulatory inspection. The areas to be inspected were a residential dock and adjacent areas located in tidal wetlands off the rear portion of the homeowner's backyard. The site visit by the agents and the inspection attempt occurred in response to the plaintiff's application to extend his 92-foot-long dock by an additional 50 feet and to add an additional boat lift to the two already in place.

     Upholding the dismissal, a 2-1 majority of a federal appeals court panel found that the homeowner's claim was essentially one for state law trespass "that has escalated into a constitutional claim of Fourth Amendment violations only because the trespassers were representatives of a state government regulatory agency." The property was posted with no trespassing and "beware of dog" signs.

     This "very brief, albeit trespassory, entry of these state actors was responsive" to his own desire to obtain the necessary permit to conduct construction work on his property, and the agents were sent away by the homeowner within minutes of their entry, and "no damage was done."

     In upholding the dismissal of the Fourth Amendment claims, the appeals court noted that "warrantless searches have regularly been allowed when they were conducted pursuant to some legislated regulatory scheme in situations in which there was found to exist a diminished expectation of privacy." As in other situations of "special need," the court stated, when the privacy interests of the owner are weakened and the government interest in regulating particular businesses are heightened, "a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment."

     As for the current situation, the appeals court said that "the [special needs] doctrine may be especially applicable, given its utility in providing a framework to balance important non-arbitrary governmental objectives against de minimis intrusions in situations in which there is some degree of an expectation of privacy."

     The court found that the fact that the homeowner had been issued previous permits for his dock "severely diminished" his privacy interest in his backyard, as did his then pending permit application seeking to permit further construction on state-regulated wetlands.

     Additionally, the level of intrusion was minimal, and the agents did not seek to inspect the interior of the homeowner's residence, his personal property, his person, or any closed containers, but only to visually inspect his dock and adjoining wetlands to evaluate his permit application. The agents only entered the backyard through the gate after ringing the front doorbell and getting no response. The only intent was to perform their duties connected with the evaluation of the plaintiff's most recent permit application, and indeed, they were shocked in being chased off the property "at the barrel of a camera lens."

     Further, the appeals court found, the state's interest in regulating construction on tidal wetlands overrode any asserted expectation of privacy in the outside areas of the home that were adjacent to the water.

     Palmieri v. Lynch, No. 03-9038, 392 F.3d 73(2d Cir. 2004).

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Federal food safety inspectors from the USDA were not subject to federal civil rights lawsuits in connection with their actions concerning a meat packing company's facilities.

     A beef company brought a federal civil rights lawsuit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against U.S. Department of Agriculture (USDA) federal food safety inspectors based on their actions taken on company premises pursuant to the Federal Meat Inspection Act (FMIA), 21 U.S.C. § 601 et. seq. The inspectors appealed from the trial court's denial of their motion for qualified immunity.

     A federal appeals court reversed, finding that a Bivens claim was not available to the plaintiff under these circumstances.

     Bivens, the court noted, allows lawsuits for damages tort actions against federal officials and employees directly under the Constitution. Under the statute in question, the USDA has promulgated a "comprehensive regulatory scheme" which governs meat packing and processing. The plaintiff operates a packing and processing plant subject to inspection under the FMIA and its implementing regulations. The inspectors conducted a public health assessment of the plant and issued "noncompliance records" for perceived violations of the regulations.

     The company and USDA entered into a mutual consent decision to resolve these alleged violations. According to the company, the inspectors then "maliciously" issued 58 additional "noncompliance records" in violation of the consent decision. The company's lawsuit sought damages for injury to its business and reputation.

     The appeals court noted that the U.S. Supreme Court has been "wary" of extending Bivens remedies into "new contexts," and has not done so "when the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration." Parties upset at regulatory actions may not avoid administrative review "simply by fashioning their attack on an agency decision as a constitutional tort claim against individual agency officers."

     In this case, the court noted, there were three factors against extending a Bivens remedy to lawsuits brought against meat inspectors. Congress had not explicitly created any direct right of action against USDA employees alleged to have committed constitutional violations, the USDA has promulgated a "comprehensive regulatory scheme" which includes the right to judicial review, and Congress has also created a "stringent exhaustion requirement for grievances filed against USDA employees," which shows its intent to have grievances aired to and addressed by the agency prior to our reaching a court.

Given the above factors, as well as the Supreme Court's caution against extending Bivens remedies to new contexts, we conclude that such a remedy is not available to Nebraska Beef. Because we resolve the instant case on the lack of a Bivens remedy, we do not reach the issue of qualified immunity.

     Nebraska Beef v. Greening, No. 04-1918, 2005 U.S. App. Lexis 3368 (8th Cir.).

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Deputies who allegedly stopped and searched two men because they appeared "nervous" while walking through a "high crime" area at night lacked reasonable suspicion for the search and detention. The subsequent knowledge the deputies obtained that one of the men was a parolee subject to search as a condition of parole and that there was a bench warrant for his arrest did not "retroactively" justify their earlier detention and search, so that the deputies were not entitled to qualified immunity.

     A man and his friend were going to a church meeting when their car broke down, so they proceeded towards the church on foot. A sheriff's patrol car passed them that evening and then pulled onto the curb in their path. The deputies ordered the two men to approach, and one of them interrogated both men as to their business in the area, patted them down for weapons, emptied the contents of their pockets onto the hood of the patrol car, and locked them into the back seat. One of the deputies then entered their names into a computer inside the patrol car, and asked the men whether they were on parole. One of them admitted that he was. The other man was allowed to leave, but the parolee was handcuffed and told he was under arrest for violating his parole.

     The deputies allegedly told him he was in possession of rock cocaine, and the parolee claimed that one of the deputies had actually retrieved the substance from the patrol car's glove compartment.

     The deputies contended that the man had "discarded something" on the front steps of a nearby residence as they approached, and they decided to investigate because it was a high crime area where drugs were sold in several nearby houses. One of the deputies then walked to the area where he had seen the parolee discard the object and recovered an object he recognized as rock cocaine. The deputies also found an outstanding arrest warrant for the parolee through the computer, as well as the fact that he was on parole.

     Both deputies declared under oath that they were aware from their training and experience that a standard term of parole was that parolees were subject to warrantless searches by any peace officer. The parolee was placed under arrest, both for possession of cocaine and under the authority of the outstanding arrest warrant, and a parole hold was placed on him.

     The parolee was acquitted on drug charges by a jury after trial. He then sued the deputies, claiming that they violated his Fourth Amendment rights to be free from unreasonable searches and seizures when they arrested and searched him without cause. The deputies argued that the plaintiff had no right to be free from suspicionless arrests and searches because of the outstanding bench warrant and the parole condition. They also claimed that, even if reasonable suspicion were required to detain the parolee, they had the required level of reasonable suspicion because of the parolee's nervous behavior and the fact that he was walking in a "high crime" area.

     The trial court rejected the deputies' argument and ruled that "at least" reasonable suspicion was required to justify the search and subsequent seizure of the plaintiff, and that, by interpreting the facts in the light most favorable to the plaintiff, they did not "come close" to the level of reasonable suspicion required. The trial court rejected the argument that the plaintiff's parole search condition and outstanding arrest warrant "retroactively justified" the arrest and search, even though neither deputy was aware of either circumstance at the time. Accordingly, the trial court denied summary judgment on the basis of qualified immunity.

     The appeals court upheld this result, agreeing with the trial court that the right to be free from suspicionless searches was "clearly established" at the time of the detention, and that a suspect's nervousness at the sight of law enforcement, by itself, did not give rise to reasonable suspicion.

     The appeals court rejected the notion that a parolee has no Fourth Amendment rights at all. Probation may "significantly diminish," but does not extinguish, an individual's reasonable expectation of privacy.

     Whatever the extent of the parolee's Fourth Amendment rights, the appeals court stated, "they clearly included the right to walk along a public sidewalk unmolested by law enforcement," in the absence of at least reasonable suspicion.

     In this case, neither deputy had any information that would cause them to suspect the parolee of any illegal activity, if the plaintiff's version of the events was correct.

     The appeals court also rejected the argument that the existence of the bench warrant for the plaintiff's arrest somehow retroactively justified the initial detention and search, since it was unknown to the deputies until later. The deputies were therefore not entitled to qualified immunity.

     Moreno v. Baca, No. 02-55627, 2005 U.S. App. Lexis 3739 (9th Cir.).

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Assault and Battery: Physical

     While officers properly arrested woman for poking one of them in the chest, and had a right to use some force in light of her allegedly "intoxicated and belligerent" conduct, factual disputes over the degree of force used precluded summary judgment on her excessive force claims. It was disputed, for example, whether an officer did in fact twist her arm behind her back, push his knee into her kneecap to bring her to the ground and then deliberately lay on top of her prone body to subdue her or rather accidentally fall on top of her. It was also disputed as to how much force was reasonably necessary to accomplish the arrest under the circumstances. Elliott v. County of Monroe, #04-0746-CV, 115 Fed. Apx. 497 (2nd Cir. 2004). [PDF]

     Officers' alleged actions of repeatedly striking suspect on his ribs, back and head after he fully submitted to arrest was unreasonable so that they were not entitled to qualified immunity. Alleged unprovoked beating would be sufficiently outrageous under Tennessee law to support a claim for intentional infliction of emotional distress. Alexander v. Newman, #02-2983-DV, 345 F. Supp. 2d 876 (W.D. Tenn. 2004).

     When an arrestee was uncertain as to which of two officers allegedly placed a knee on his neck, and there was no evidence as to which officer did so, this barred a finding that either of the officers used excessive force while involved, with others, in making the arrest. Birdine v. City of Coatesville, No. CIV. A.03-5569, 347 F. Supp. 2d 182 (E.D. Pa. 2004).

Defenses: Statute of Limitations

     The applicable three-year statute of limitations on an attorney's federal civil rights claim against court officers who allegedly physically assaulted him started to run on the date of the alleged assault. The fact that an allegedly "related" claim was pending in state court did not toll (extend) the three-year time period, so the complaint was properly dismissed as untimely. Keane v. Navarro, No. Civ.A.03-CV-10154, 345 F. Supp. 2d 9 (D. Mass. 2004).

     Motorist' claim against the State of New York for state and federal constitutional violations concerning two stops during which his car and person were searched were time barred when not filed within the two-year jurisdictional time limit of the New York Court of Claims. McKinney's Court of Claims Act, Sec. 10, sub. 3. The state was immune from these constitutional claims when not filed within two years, rather than the otherwise applicable New York statute of limitations of three years for federal constitutional claims or six years for state constitutional claims. Lyles v. State, 3 N.Y.3d 396, 820 N.E.2d 860 (N.Y. 2004). [PDF]

     While a one-year statute of limitations applied to an arrestee's malicious prosecution claim under Illinois law, the statute started to run not at the time criminal charges against him were first dismissed, since they could have still been reinstated, but rather at the time when a statutory speedy trial period lapsed, and the prosecutor was barred from continuing to seek to prosecute him. Ferguson v. City of Chicago, No. 97218, 820 N.E.2d 455 (Ill. 2004).

False Arrest/Imprisonment: No Warrant

     The testimony presented in state court criminal proceedings, as described in transcripts the plaintiff arrestee himself attached to his complaint alleging false arrest, established the existence of probable cause as a matter of law, justifying the dismissal of his lawsuit. The plaintiff was arrested during a narcotics surveillance, and was discovered to be in possession of twenty-five packets of heroin. The materials the plaintiff attached to his complaint indicated that the officers observed several hand-to-hand transactions between himself and other persons during their surveillance, and that the officers believed that they were witnessing narcotics transactions. Averhart v. City of Chicago, No. 04-1340, 114 Fed. Appx. 246 (7th Cir. 2004).

     Police had probable cause to arrest a civil process server on charges of impersonating an officer when he identified himself to them as a deputy sheriff, but could not produce any verification of that claim, and the sheriff's office told them that he had no such authority. Additionally, the officers had been informed that the process server had threatened at least one person with arrest. Orso v. Cobb, No. CV 03-214, 348 F. Supp. 2d 1165 (D. Hawai'i 2004).

     Officers had probable cause to arrest two parents for sexual abuse of minors after two of their children acknowledged having sexual contact with them. The fact that the parents' conviction was subsequently set aside and the children later recanted their accusations did not alter the fact that probable cause existed at the time of the arrest. The officers were therefore entitled to qualified immunity. Doggett v. Perez, No. CS-02-282, 348 F. Supp. 2d 1198 (E.D. Wash. 2004).

     Probable cause existed to arrest a man based on statements by a complainant and his girlfriend that he had threatened them with a gun and assaulted the girlfriend, even though the girlfriend declined to be taken to a hospital for medical treatment. Officers could reasonably rely on statements by purported victims of a crime, in the absence of something to cast doubt on their truthfulness. Golub v. City of New York, No. 03 Civ. 0239, 334 F. Supp. 2d 399 (S.D.N.Y. 2004).

     Deputy sheriffs had sufficient probable cause to arrest a man for burglary when a trail of his footprints went from the entered home to his own residence and he had a gun matching the homeowner's description of the gun used by the burglar. Carver v. Mack, No. 03-4019, 112 Fed. Appx. 432 (6th Cir. 2004).

False Arrest/Imprisonment: Unlawful Detention

     Deputy did not violate motorist's rights by continuing to detain him after he passed a field sobriety test at a checkpoint. The deputy had reasonable questions concerning the motorist's use of a dealer plate on his car, and the motorist himself contributed to the length of the detention by arguing with the deputy about motor vehicle laws. Motorist was only arrested after he refused to sign a citation for his alleged unlawful use of a dealer plate, and himself demanded that he instead be taken before a magistrate judge. Gross v. Pirtle, #01-2337, 116 Fed. Appx. 189 (10th Cir. 2004).

False Arrest/Imprisonment: Warrant

     Police detective did not violate an arrestee's rights under the Fourth Amendment by seeking a warrant for his arrest based on a woman's statement that she had hurt her leg when he battered her two weeks earlier. The detective could reasonably rely on the alleged victim's statement and was not required to further investigate before seeking an arrest warrant. Further, there was no showing that the detective knowingly made false statements or omitted exculpatory evidence in the affidavit in support of the warrant. George v. City of Wichita, No. 02-1344, 348 F. Supp. 2d 1232 (D. Kan. 2004).

     Police officers had probable cause to obtain arrest warrants for two individuals who, after a "contentious" court hearing allegedly left the room muttering the words "judge," "shot," or "judge should be shot." Statements from witnesses who claimed to have heard these remarks were sufficient to furnish probable cause for arrests on charges that they violated a New Jersey statute forbidding threatening a public servant with the purpose of influencing a decision in a judicial proceeding. El v. Gloucester Township, No. 04-1328, 116 Fed. Appx. 386 (3rd Cir. 2004). [PDF]

     Police officer's alleged violation of a state statute prohibiting him from making an arrest outside of the town which was his primary jurisdiction, even if true did not, by itself, make the arrest, pursuant to a valid arrest warrant, unreasonable under the Fourth Amendment. Armstead v. Township of Upper Dublin, No. Civ.A. 03-CV-3608, 347 F. Supp.2d 188 (E.D. Pa. 2004).

     Officers who were informed by the sheriff's department that there was a facially valid warrant for a suspect's arrest were entitled to rely on it even if the arrestee and his family told them that it was not valid. Cunningham v. Reid, No. 03-1055, 337 F. Supp. 2d 1064 (W.D. Tenn. 2004).

First Amendment

     Probable cause existed to arrest demonstrators who burned a professional baseball team (the Cleveland Indians) mascot in effigy outside a stadium, and the arrests were an "incidental restriction" on the First Amendment free speech rights of the demonstrators, who claimed that the team's Indian logo was disparaging to Native Americans and their culture. This incidental restriction was no greater, the court found, than what was essential to protect public safety. Bellecourt v. City of Cleveland, No. 2003-1202, 820 N.E.2d 309 (Ohio 2004). [PDF]

Governmental Liability: Policy/Custom

     City could not be held liable for police officers' alleged actions of seizing and beating a robbery suspect without justification merely on the basis that it was the officers' employer. Arrestee failed to allege that any of the purported violations of his constitutional rights were the result of the city's policies. Hales v. City of Montgomery, Civil Action No. 03-M-593, 347 F. Supp. 2d 1167 (M.D. Ala. 2004).

Negligence: Vehicle Related

     Even though deputy sheriff was technically off-duty at the time his patrol car struck another vehicle in its rear end, he was acting within the scope of his employment. The accident allegedly occurred when he glanced down at his computer terminal to see the result of his inquiry as to whether a truck nearby was stolen, which fell within the performance of his duties. Further, his doing so was a "ministerial" act rather than a discretionary one, so that he was not entitled to official immunity under Texas state law. Texas appeals court upholds $27,000 jury award to motorist against county. Harris County v. Gibbons, No. 14-02-00398-CV, 150 S.W.3d 877 (Tex. App. 14th Dist. 2004).

Police Plaintiff: Defamation

     In a police officer's libel lawsuit against a newspaper over an article reporting his alleged verbal abuse of a woman, the "actual malice" legal standard applied, even though the officer was allegedly off-duty at the time of the incident. The article was focused on the alleged abuse of police authority based on race, and the plaintiff officer was wearing his police jacket at the time of his alleged misconduct. "Actual malice" requires, for liability for defamation, that the plaintiff show that that false statements were made about him with knowing falsity or in reckless disregard of their truth. In this case, the officer failed to show such actual malice, and the reporter could not be required to withhold the story just because the officer denied making the alleged statements. Smith v. Huntsville Times Co. Inc., No. 1021999, 888 So. 2d 492 (Ala. 2004).

Search and Seizure: Home/Business

     While the officers' alleged conduct in staying in a home searched under a warrant for 7-1/4 hours, while keeping all residents in handcuffs for several hours in their underwear appeared to be unreasonable under a prior appeals court decision, Leveto v. Lapina, 258 F.3d 165 (3rd Cir. 2000), the search in question took place over two years before the Leveto decision, so that the officers did not violate clearly established law and were entitled to qualified immunity. Kerusenko v. New Jersey, #03-3556, 115 Fed. Appx. 583 (3rd Cir. 2004). Editor's Note: In Leveto, the court ruled that an 8-hour search carried out as part of an investigation for tax evasion where the plaintiff was detained at his place of business, restricted in his communication with others during the search, and interrogated during a period of six hours, was unreasonable and amounted to a violation of Fourth Amendment rights.

     Officers had sufficient exigent circumstances to justify a warrantless entry into an apartment based on neighbors' reports of hearing a woman's scream and "sounds of a struggle." Foutz v. The City of West Valley City, No. 2:03 CV 1116, 345 F. Supp. 2d 1272 (D. Utah 2004).

     Officers who entered a home without a warrant and then shot a suspect inside as he descended from a hiding place holding a machete had exigent circumstances justifying their actions. The suspect had allegedly already assaulted several people with the machete and had threatened to chop up his cousin's small dog. Additionally, he fled from officers to his house, and refused to obey orders to drop the machete. Cuffy v. Van Horn, No. 03-3517, 112 Fed. Appx. 438 (6th Cir. 2004).

Search and Seizure: Search Warrant

     Deputy sheriff's failure to include 13-month-old and 17-month-old reports of prior investigations in affidavit for search warrant for farm on probable cause of animal mistreatment did not show intentional or reckless misleading of the magistrate. The old reports, on which no charges had been issued, were "stale" and not altogether exculpatory. Further, the old reports did not negate a finding of current probable cause based on the sworn statements of five separate complainants, and the deputy's own investigation. Officers who executed the warrant were entitled to qualified immunity on seizing farmer's daughter after she attempted to lock herself in the farmhouse bathroom, since they had a security reason--the presence of weapons--for gathering all occupants outside the house as soon as possible. The house would not be secure until she was removed. Spafford v. Romanowsky, No. 02 Civ. 6348, 348 F. Supp. 2d 40 (S.D.N.Y. 2004).

Search and Seizure: Vehicle

     Police officer could not have had sufficient reasonable suspicion to stop a car based on an anonymous phone call which said teenagers in baggy pants were looking into the windows of cars in a hotel parking lot and his observation of the motorist's car coming from the hotel soon after the report of the call. The officer was not entitled to qualified immunity because he reasonably should have known that he needed to corroborate the anonymous tip. The call itself did not report any criminal conduct. Srisavath v. Richardson, #03-5869, 115 Fed. Appx. 820 (6th Cir. 2004).

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

     Article: "Selecting a Duty-Issue Handgun," by Chad A. Kaestle and Jon H. Buehler, 74 FBI Law Enforcement Bulletin, No. 1, pgs. 1-8 (January 2005). "Departments should carefully approach decisions concerning the firearms officers will use." [.html format] [PDF format].

     Article: "Defending Against Cybercrime and Terrorism," by Tony Aeilts, 74 FBI Law Enforcement Bulletin No. 1, pgs. 14-20 (January 2005). "Higher-education institutions offer additional resources to law enforcement agencies in the fight against terrorism." [.html format] [PDF format].

     Publication: Calling 311: Guidelines for Policymakers. "Do 311 call systems reduce the 911 call burden? Will citizens use 311 appropriately, saving 911 for true emergencies? The answer appears to be 'yes,' according to a study sponsored by NIJ. During the first year of operating its 311 system, Baltimore police saw a 99-percent drop in lowest priority calls to 911. This Research for Policy discusses the researchers' findings, focusing on key considerations for police managers and public policymakers." (February 2005). NIJ. [PDF]

     Publication: Managing Calls to the Police With 911/311 Systems. "Implementing a 311 call system can help police better manage citizen calls and determine the appropriate response, according to a recent NIJ study. Researchers found that given an effective public information campaign, citizens will divert most nonemergency calls from 911 to 311. But capitalizing on this major change in citizen reporting requires careful planning and organizational changes. This Research for Practice summarizes the researchers' key findings and recommendations, with practical considerations for police officers and managers." (February 2005). NIJ. [PDF]

     Reference:

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

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