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Nov. 12-14, 2007 - Las Vegas

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December 10-12, 2007 Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2007 LR October(web edit.)
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CONTENTS

Monthly Law Journal Article
(PDF Format)
Civil Liability for Acts of Off-Duty Officers -- Part Two
2007 (10) AELE Mo. L. J. 101

Digest Topics

Assault and Battery: Physical (5 cases)
Assault and Battery: Stun Guns/Tasers
Defamation
Damages: Compensatory
Defenses: Absolute Immunity
Dogs
False Arrest: No Warrant (6 cases)
False Arrest/Imprisonment: Warrant (2 cases)
Firearms Related: Intentional Use (3 cases)
First Amendment (3 cases)
Governmental Liability: Policy/Custom (2 cases)
Malicious Prosecution
Off-Duty/Color of Law: Assault & Battery
Pursuits: Law Enforcement
Racial Discrimination (2 cases)
Search and Seizure: Vehicle (2 cases)
Strip Search

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
Nov. 12-14, 2007 - Las Vegas

Public Safety Discipline and Internal Investigations
December 10-12, 2007 Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

     Some of the case digests do not have a link to the full opinion.

Assault and Battery: Physical

     Evidence showed that a police officer's use of force to arrest a man during a party was reasonable under the circumstances, or that, in the alternative, the officer was entitled to qualified immunity. While the arrestee claimed that the officer improperly beat him and choked him during the arrest, the record showed that attendees at the party outnumbered the officers present, and that the officer only succeeded in subduing the arrestee after the arrestee had successfully resisted the efforts of four other officers to place him under arrest. Duran v. Sirgedas, No. 05-4278, 2007 U.S. App. Lexis 17305 (7th Cir.).

     An arrestee failed to assert anything other than "speculative allegations" concerning a supposed policy by the county and its drug task force to approve excessive use of force, so that claims against the county and drug task force were properly dismissed. The arrestee's assertion, however, that three officers, during the arrest, stomped on his back because they did not like his answers to their questions, and that they treated him brutally after taking him into custody, including fastening his handcuffs too tight, causing his right hand to become numb, were sufficient to state a federal civil rights claim. Chambers v. St. Louis, No. 06-2588, 2007 U.S. App. Lexis 18605 (8th Cir.).

     Jury's verdict in a criminal case in which the plaintiff was convicted of four counts of resisting arrest and assault necessarily included a conclusion that the U.S. Marshals making the arrest did not use excessive force, so that the arrestee's excessive force claim was barred, since the conviction had not been overturned. Lora-Pena v. U.S., 1:06-cv-00442, 2007 U.S. Dist. Lexis 51235 (D. Del.).

     Trial judge acted improperly in setting aside jury's determination that an officer used excessive force in making an arrest. The appeals court found that the arrestee's claim of excessive force was not based merely on the allegation that the officer used an ankle turn control technique, but rather on the allegation that the officer increased the amount of force he was using, breaking the arrestee's ankle, and did so after the arrestee had stopped resisting. Under these circumstances, the officer was not entitled to qualified immunity. Jennings v. Jones, No. 05-2522, 2007 U.S. App. Lexis 19583 (1st Cir.).

     A videotape of the arrest incident refited the arrestee's claim that he was lying flat on his stomach after the officers ordered him to do so, but instead showed that he was twisting on his side when the officers approached him and tried to handcuff him. It further appeared from the video that when he rose to his feet, he was not under police control, as he claimed, but had instead successfully avoided their efforts to handcuff him. Summary judgment for the officers and city on his excessive force and inadequate training claims were therefore upheld. Mann v. Yarnell, No. 06-2326, 2007 U.S. App. Lexis 19283 (8th Cir.).

Assault and Battery: Stun Guns/Tasers

     Jury's award against officer on motorist's claim that the officer used excessive force in subjecting him to two Taser shots was adequately supported by the evidence. The plaintiff claimed that the Taser was used against him after the officer denied his request to get up when he was the victim of a rear-end vehicle collision, and while he was partially restrained, unarmed, and "visibly" suffering from claustrophobia and begging the officer not to shoot him. The officer was not entitled to qualified immunity. Further proceedings were also ordered on the issue of whether an award of punitive damages was appropriate. Wakefield v. City of Escondido, No. 05-56769, 2007 U.S. App. Lexis 18270 (9th Cir.).

Defamation

     Chief of Police was properly held liable for damages of $200,000 to restaurant owners of Lebanese descent for his actions in making numerous statements in public asserting that they were terrorists, gunrunners, and drug dealers, as well as "associated with" Osama Bin Laden. These statements, made in a restaurant setting, caused some restaurant patrons to stop frequenting the plaintiffs' business. The court found that the amount awarded was not excessive on the plaintiffs' defamation claims. Yammine v. De Vita, No. 501649, 2007 N.Y. App. Div. Lexis 8862 (A.D. 3rd Dept.).

Damages: Compensatory

     A jury awarded a flower vendor damages totaling $73,000 on claims for false arrest and imprisonment, including non-economic damages of $50,000 for pain and suffering in connection with the two nights the plaintiff was in jail, $3,000 for six arrests in which he was told to appear in court and did not suffer incarceration, $10,000 for past economic damages, and $10,000 for future economic damages. On appeal, the court found that there was no evidence produced from which the jury could have concluded that the plaintiff's future earnings had been impaired, and, in fact, the available evidence showed that his earnings increased after the arrests, so that the $10,000 awarded for future economic damages was reversed. Miami-Dade County vs. Cardoso, No. 3D06-2118, 2007 Fla. App. Lexis 12257 (3rd Dist.).

Defenses: Absolute Immunity

     FBI agent's testimony to a federal grand jury, which the plaintiff claimed was false, did not violate the plaintiff' rights. Additionally, her testimony was truthful, and the Fourth Amendment's probable cause requirement was satisfied by the fact that the grand jury returned indictment against the plaintiff. The Assistant U.S. Attorney was entitled to absolute prosecutorial immunity for her conduct in presenting evidence to grand jury and in preparing for the initiation of the criminal prosecution. Collis v. U.S., Civil No. RWT 05-3066, 2007 U.S. Dist. Lexis 58073 (D. Md.).

Dogs

     Police officers did not violate a motorist's rights in deploying a dog against him. The plaintiff reached into his vehicle after being asked to put his hands up, and the officer gave him a warning before releasing the dog. Further, even by the plaintiff's own version of the events, he continued to resist after the officers deployed the dog. Under the circumstances, the officers did not act unreasonably in waiting to call off the dog until the arrestee was properly secured in the police vehicle. Jones v. Wild, No. 07-6526, 2007 U.S. App. Lexis 18132 (4th Cir.).

False Arrest: No Warrant

     Police officers had probable cause to arrest a woman for attempting to fill a fraudulent prescription when there was no dispute that a pharmacist told them that her doctor's office denied writing the prescription that she presented at the store, even if there was a factual dispute as to whether the officers were told that the doctor had said that the prescription was "forged." O'Brien v. City of Tacoma, No. 05-35917, 2007 U.S. App. Lexis 19592 (9th Cir.).

     False arrest claim could not be dismissed against officers when a reasonable jury could believe the arrestee's version of events--that he did not engage in a narcotics transaction, was not in possession of marijuana, and did not resist arrest and attempt to flee the officers, because they did not identify themselves as police officers, so that he thought he was being arrested by strangers. A reasonable jury also could believe that the arresting officers lacked probable cause to arrest, but gave false information to an officer who then prepared a complaint. The officer who prepared the complaint, however, was entitled to summary judgment because he reasonably relied on the information provided by the other officers. The court granted summary judgment, however, on the arrestee's excessive force claims because of the arrestee's "de minimis" (minimal) injuries. Williams v. City of New York, No. 05 Civ. 10230, 2007 U.S. Dist. Lexis 55654 (S.D.N.Y.).

     Sheriff's deputies, police officer, and probation officer were all entitled to qualified immunity for their roles in the arrest of a man and the search of his vehicle on suspicion of involvement in possession of methamphetamine with intent to distribute, despite the suppression, in the criminal prosecution, of the evidence found during the search and the dismissal of the charges against him. The probation officer did not violate any clearly-established constitutional right by providing information to a sheriff's deputy after he learned that drugs were being sold at a specific residence, and in listening, along with the deputy, to a phone conversation in which it was indicated that the drugs would be delivered to that home in a green Ford pick-up truck. The court found that there was probable cause for the arrest and vehicle search. Scallion v. Norman, No. 07-30257, 2007 U.S. App. Lexis 19396 (5th Cir.).

     There were genuine issues of fact as to whether a town marshal had probable cause to arrest the owners of a van for theft or criminal conversion when they attempted to retrieve the van from a lot where it had been towed after breaking down, and following a state trooper's arrest of the driver for failure to have a driver's license. The town marshal allegedly threatened them with arrest if they did not sign over title to the van. Belcher v. Norton, No. 06-3174, 2007 U.S. App. Lexis 19344 (7th Cir.).

     Officers had probable cause to arrest a motorist for public intoxication, leaving the scene of an accident, and DUI. The appeals court orders further proceedings, however, as to whether the arrestee's rights were violated by drawing his blood for a blood test, since there were disputed issues of fact as to whether he consented to the blood test, whether a breath or urine test was available, and whether he was offered or refused such alternate tests. Watson v. County of Los Angeles, No. 04-57137, 2007 U.S. App. Lexis 18857 (9th Cir.).

     When two individuals believed to be involved in a crime identified the suspect as having been in the car with them and being involved in the shooting of the victim, officers had probable cause to arrest him, based on those statements, and the statements of other witnesses placing the suspect in particular locations. Additionally five officers named as defendants did not play any part in the decision to make the arrest, and therefore were entitled to summary judgment on that basis. Johnson v. Ford, No. 3:04CV116, 2007 U.S. Dist. Lexis 52553 (D. Conn.).

False Arrest/Imprisonment: Warrant

     Officers had probable cause to believe that a landowner had threatened to commit a crime of violence when he had previously told them that he would do "whatever" he had to do to "protect" his purported property rights in connection with a dispute between him and a developer, and he had also previously displayed firearms to the developer's employees. They had probable cause to obtain an arrest warrant and search warrant, particularly after the landowner stated that they were not taking actions needed to avoid "a bloodbath" occurring as a result of the dispute. A search warrant obtained for the home of the landowner's mother's home, however, was not supported by probable cause, as he had not recently lived there, and there was no allegation that any weapons were stored there, so further proceedings were required on claims arising out of that particular search warrant. Walczyk v. Rio, No. 04-5711, 2007 U.S. App. Lexis 18255 (2nd Cir.).

     Federal appeals court lacked jurisdiction over appeal by the Director of the United States Virgin Islands Department of Justice, Special Investigations Division, of the denial of his qualified immunity defense in a federal civil rights lawsuit by an arrestee claiming that the Director had made false statements in an affidavit to obtain an arrest warrant to arrest him for the crime of making misrepresentations to a court while seeking sole custody of his children. Because the trial court's denial of the qualified immunity defense was based on disputed facts as to whether the Director acted reasonably or "knowingly or recklessly" presented false information in the affidavit, those factual disputes would have to be resolved in the trial court, and the qualified immunity defense, therefore, could not be granted at this time. Barton v. Curtis, No. 06-3336, 2007 U.S. App. Lexis 18065 (3rd Cir.).

Firearms Related: Intentional Use

     In a lawsuit claiming that a suspect was shot and killed during a police raid without provocation and despite the fact that he was unarmed, the trial court improperly dismissed the lawsuit on its own motion without providing notice to the family members who were plaintiffs in the case. Despite the fact that they could not identify which officer shot the decedent, that information could reasonably be provided by discovery, and their Fourth and Fourteenth Amendment claims were not "patently meritless." Rivera v. Sanchez-Ramos, No. 06-2398, 2007 U.S. App. Lexis 18692 (1st Cir.).

     When an arrestee failed to comply with the officers' orders, and made furtive motions in the back of his car, the fact that bullets were exiting the car from the rear windshield made it objectively reasonable for one of the officers to perceive that the suspect was shooting at him. There was no evidence from which it could be reasonably concluded that an officer's bullet struck the suspect. Even if one of the officers did shoot the suspect, his actions were objectively reasonable under the circumstances. Swann v. City of Richmond, No.3:06CV069, 2007 U.S. Dist. Lexis 56907 (E.D. Va.).

     Police sergeant acted objectively reasonably in firing at a stolen car, striking the driver in the back of the neck and leaving him paralyzed. The car had been reported stolen, was being driven by a minor, and had evaded attempts to block the vehicle, going into reverse to collide with an officer's cruiser. When the sergeant pointed his gun at the driver's head, he was knocked down by the vehicle, prior to shooting several rounds. No jury, the court concluded, could reasonably find the use of deadly force unreasonable, based on the driver's decision to flee and the immediate threat of harm the driver posed to the sergeant, pedestrians, and other drivers. Williams v. City of Grosse Pointe Park, No. 05-2409, 2007 U.S. App. Lexis 18599 (6th Cir.).

First Amendment

      In lawsuit challenging Michigan regulations and a state statue barring businesses with liquor licenses from allowing dancers to perform fully nude or to mimic sex acts on stage, the plaintiff was entitled to a preliminary injunction because the challenged rules could not survive a First Amendment challenge applying either "strict" or "intermediate" scrutiny. The trial judge, in denying injunctive relief, relied on New York State Liquor Authority v. Bellanca, No. 80-813, 452 U.S. 714 (1981) and California v. LaRue, No. 71-36, 409 U.S. 109 (1972), holding that the 21st Amendment, in granting the states authority to regulate liquor sales, allowed a state to prohibit nude dancing in places where liquor is sold. The appeals court stated that the Supreme Court has "entirely abandoned this rationale for upholding regulations that raise First Amendment concerns in places where alcohol is sold," citing 44 Liquormart v. Rhode Island, No. 94-1140, 517 U.S. 484 (1996). Because the state had put forward no other relevant governmental interest to justify the restrictions imposed, injunctive relief was proper. Hamilton's Bogarts, Inc. v. Michigan, No. 06-1436, 2007 U.S. App Lexis 20726 (6th Cir.).

     A store owner's First Amendment rights were not violated by his being given a citation for placing on a construction sign, a warning to his customers of a roadblock, and for erecting an electric protest sign there. The plaintiff admitted that he placed his sign on the construction sign in a location that hid a traffic control device from view. The state had a right to regulate the use of the roadways and a substantial interest in making sure that traffic was regulated. The governmental action did not limit the store owner's right of expression, except in the narrow circumstances that he interfered with an official traffic control device. Claims in connection with the electric protest sign were not dismissed, as they were not addressed in the defendant officers' motion. Rodriguez v. Rutter, No. EP-07-CA-0115, 2007 U.S. Dist. Lexis 56764 (W.D. Tex.).

     Removing cameras placed in a public park by an animal rights group in order to videotape deer-culling activity which it opposed as inhumane did not violate the group's First Amendment rights, nor did the erasure of the images captured by the cameras. S.H.A.R.K. v. Metro Parks Serving Summit County, No. 06-4009, 2007 U.S. App. Lexis 20266  (6th Cir.).

Governmental Liability policy/custom

     County and district attorney were not entitled to judgment on the pleadings on the plaintiff's claim that they had a policy which barred the investigation or acceptance of criminal cross-complaints by a criminal defendant against police officers and prosecutors, merely based on the complainant's status as a pretrial detainee. Such a policy, if actually in existence, would violate the plaintiff's constitutional rights. The county's assertion that there was, in fact, no such policy, could be asserted later in a motion for summary judgment. McCrary v. County of Nassau, No. 06-CV-3048, 2007 U.S. Dist. Lexis 47937 (E.D.N.Y.).

     There was sufficient evidence from which the jury could have reasonably concluded that the police department had a custom or practice of "deliberate indifference" to African-Americans' constitutional rights, and that the Chief of Police was aware of the custom or policy, and was deliberately indifferent to it. The court granted a motion by the plaintiff for a hearing on compensatory damages, but granted a motion by the town to set aside the jury's determination that punitive damages should be awarded against it. Jones v. Town of East Haven, No. 3:99CV00632, 2007 U.S. Dist. 48838 (D. Conn.).

Malicious Prosecution

****Editor's Case Alert****

     A federal trial judge has awarded $101.7 million against the U.S. government on claims that the FBI was "responsible for the framing of four innocent men" for murder, causing them to serve decades for a crime they did not commit. Four men falsely convicted of a 1965 gangland murder, and their estates and families asserted claims against the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346 and 2671-2680 for malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and related claims. The trial court rejected the argument that the U.S. government was entitled to immunity based on the discretionary function exception to liability in 28 U.S.C. Sec. 2680(a). The FBI's alleged conduct in knowingly allowing an informant to provide perjurious testimony in the murder trial, failing to reveal exculpatory evidence, and failing to disclose information about the actual murderers for a period of thirty years was unconstitutional and violated its own rules, the judge ruled. The court found that the FBI's conduct was the cause of the convictions, and that the conduct met the standard for intentional infliction of emotional distress, as the alleged actions violated all standards of decency and were intentional. The family members of the convicted persons were entitled to damages, under Massachusetts law for bystanders' intentional infliction of emotional distress. $1 million for each year of imprisonment was awarded to the men falsely convicted, or their estates. The minor children of the convicted men, and three of the wives of the convicted men were also awarded damages, as were an adult child of one of the men, and a wife who divorced one of the men. Two of the four men are now deceased, while two of them are still alive. Limone v. U.S., No. 02cv10890-NG, 2007 U.S. Dist. Lexis 54224 (D. Mass.). [Editor's Note: The total damages awarded were $101.7 million].

Off-Duty/Color of Law: Assault & Battery

     Under Alabama state law, a bar could be found vicariously liable for an off-duty police officer's alleged assault and battery of a patron while working as a security guard. The court further ruled that, regardless of whether or not the off-duty officer was ultimately found to have been acting as a security guard, rather than a police officer at the time of the incident, this did not deprive the federal trial court of jurisdiction over federal civil rights claims in the case, or of jurisdiction to rule on the state law claims which were supplemental to the federal claims. Ortega v. Brock, No.2:07cv368, 2007 U.S. Dist. Lexis 57532 (M.D. Ala.).

Pursuits: Law Enforcement

****Editor's Case Alert****

     Even if officers chasing a vehicle driven by an intoxicated driver intentionally caused a collision which resulted in the pursued truck flipping over, killing the driver, they did not violate the driver's Fourth Amendment constitutional rights. The driver had allegedly stolen beer from a store after the store refused to sell it to him because of his intoxicated condition. The use of deadly force against the intoxicated driver was justified after he refused to stop, weaving in and out of traffic, crossing the center lane of the highway, and traveling at 55 to 65 miles per hour, as well as continuing to evade the officers even after he collided with another motorist. Based on the driver's recklessness, he posed a threat to the safety of other motorists. Beshers v. Harrison, No. 05-17096, 2007 U.S. App. Lexis 19289 (11th Cir.).

Racial Discrimination

     Police officers were not involved in racial profiling or stereotyping by conducting an investigation looking for young black males who had cuts on their hands or arms. The victim of a home invasion had told them that she was attacked by a black male, and their investigation focused, for legitimate reasons on suspects who matched the physical description provided by the crime victim. Brown v. New York, No. 501702, 2007 N.Y. App. Lexis 9286 (A.D. 3rd Dept.).

     Owners of now defunct nightclub failed to present any evidence from which a jury could reasonably believe that race played any role in the suspension of the club's liquor license, or that the city, its police chief, or the county liquor commissioners harassed and intimidated the club's patrons because the club sponsored "hip hop" nights that attracted a mostly black clientele. Orgain v. City of Salisbury, No. L-02-2797, 2007 U.S. Dist. Lexis 57770 (D. Md.).

Search and Seizure: Vehicle

     Officer who stopped vehicle he claimed was going over the posted 25 mile per hour speed limit was not entitled to summary judgment on claims arising from the stop and search of the vehicle, when the driver claimed that he was traveling at exactly the speed limit. The issue of what speed the motorist was traveling at was a factual dispute which had to be resolved by the trial court. Strepka v. Sailors, No. 05-cv-02546, 2007 U.S. Dist. Lexis 47858 (D. Colo).

     Even if traffic rule violations are "civil in nature" under California state law, this did not render officers' actions in stopping a vehicle and arresting the "belligerent" driver who refused to produce his driver's license. The federal appeals court rejected the argument that traffic offenses were "decriminalized" under state law, but found that even if they had been, this would not somehow transform the officers' actions into a Fourth Amendment violation. Officers have discretion to make custodial arrests under California law for failure to present a driver's license after operating a vehicle. Trotter v. Stonich, No. 05-56320, 2007 U.S. App. Lexis 19954 (9th Cir.).

Strip Search

     Federal appeals court rules that no reasonable jury could find that a strip search, including an inspection of an arrestee's anal cavity, conducted in public in the open backyard of a home where the arrest was made, complied with the Fourth Amendment, when there was "no identifiable reason" for carrying out the strip search in that manner. Further proceedings were therefore ordered on claims against the officers. Summary judgment for defendant city was upheld however, since there was no evidence that the place and manner in which the strip search was conducted was caused by any official municipal policy or custom. Campbell v. Miller, No. 06-1981, 2007 U.S. App. Lexis 20547 (7th Cir.).

Return to the Contents menu.

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AELE Seminars

Lethal and Less Lethal Force
Nov. 12-14, 2007 - Las Vegas

Public Safety Discipline and Internal Investigations
December 10-12, 2007 Las Vegas

Click here for more information about all AELE Seminars


   Resources

    Justice Department Documents: U.S. Department of Justice Strategic Plan, Fiscal Years 2007-2012. A description of how the USDOJ intends to achieve its three major goals during the time period covered: 1. preventing terrorism and promoting the nation's security, 2. preventing crime, enforcing federal laws, and representing the rights and interests of the people, and 3. ensuring the fair and efficient administration of justice.

     Search and Seizure: "Abandonment of Items Associated with the Person," by Jayme W. Holcomb, 76 FBI Law Enforcement Bulletin, No. 8, pgs. 23-32 (August 2007). [PDF] [.html]. "Courts use Fourth Amendment tests to determine if and why an item was abandoned."

     Terrorism, Homeland Security, and National Security Issues: U.S. Department of Justice, Office of the Inspector General, Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act, as required by Sec. 1001(3) of Public Law 107-56. August 3, 2007. A report to Congress on claims of civil rights or civil liberties violations allegedly committed by DOJ employees from the period January 1, 2007 through June 30, 2007. This is the eleventh in a series of semiannual reports.

     Terrorism, Homeland Security, and National Security Issues: "Radicalization in the West: The Homegrown Threat," prepared by Mitchell D. Silber and Arvin Bhatt, Senior Intelligence Analysts, NYPD Intelligence Division. (90 pgs. PDF Format, August 2007). An assessment, by the New York Police Department, of "the kind of threat we face domestically" from terrorism.

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

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

Cross References

Emotional Distress -- See also, Malicious Prosecution
False Arrest/Imprisonment: No Warrant -- See also, Damages: Compensatory
False Arrest/Imprisonment: No Warrant -- See also, Search and Seizure: Vehicle (2nd case)
Family Relationships -- See also, Malicious Prosecution
Federal Tort Claims Act -- See also, Malicious Prosecution
Racial/National Origin Discrimination -- See also, Governmental Liability Policy/Custom (2nd case)
Search and Seizure: Home/Business -- See also, False Arrest/Imprisonment: Warrant (1st case)
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