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ISSN 0271-5481 Cite this issue as: 2008 LR December (web edit.)
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CONTENTS

Monthly Law Journal Article
(PDF Format)
Restraint and Asphyxia: Part One -- Restraint Ties
2008 (12) AELE Mo. L. J. 101

Digest Topics
    Assault and Battery: Physical (6 cases)
Assault and Battery: Taser/Stun Gun (2 cases)
Defenses: Absolute Immunity
Defenses: Qualified Immunity (2 cases)
Domestic Violence
DNA
False Arrest/Imprisonment: Consular Rights
 False Arrest/Imprisonment: No Warrant (4 cases)  
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (3 cases)
First Amendment (4 cases)
 Governmental Liability: Policy/Custom
 Off-Duty/Color of Law: Arrest Related (2 cases)
  Procedural: Discovery
  Procedural: Evidence
Public Protection: Informants
 Public Protection: Minors
Racial/National Origin Discrimination
  Strip Search

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

Public Safety Discipline and Internal Investigations
Apr. 13-15, 2009 San Francisco

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

     There was a viable jury question as to whether Wyoming Highway Patrol officers acted reasonably in allegedly continuing to apply weight to a suspect's upper torso for three minutes after it was no longer necessary to restrain him and in a manner that they allegedly should have reasonably known presented a significant danger of death from asphyxiation. If the officers used deadly force that was not justified by a need to protect the safety of the suspect, the officers, or the public, they were not entitled to qualified immunity for their actions, which allegedly caused the suspect's death. Weigel v. Broad, No. 05-8094, 2008 U.S. App. Lexis 21877 (10th Cir.).

     If officers repeatedly beat arrestee while he was lying still on the ground after being handcuffed, their actions violated clearly established law, barring a defense of qualified immunity. Based on the arrestee's version of the incident, if true, the officers also acted in bad faith or maliciously for purposes of Alabama state law, and would also not be entitled to immunity on state law claims for excessive use of force, although they were entitled to such immunity on negligence and wantonness. Adams v. City of Mobile, Civil Action 07-0864, 2008 U.S. Dist. Lexis 80149 (S.D. Ala.).

     A motorist stopped and arrested for speeding failed to present any medical evidence that the officer's actions either caused or aggravated his injuries and pre-existing medical conditions. With no demonstrated physical injury at all, the arrestee could not pursue an excessive force claim. Phelps v. Szubinski, 04-CV-773, 2008 U.S. Dist. Lexis 72253 (E.D.N.Y.).

     Federal appeals court upholds jury verdict in favor of arrestee who claimed that he suffered a "knee drop" to his head while he was pinned to the ground by officers outside a bar, suffering five facial fractures, and bleeding into his brain. The plaintiff presented evidence that he had not offered resistance to the officers, and he met his burden of showing that excessive force was used. Plaintiff was properly awarded $10,000 in compensatory damages, and the trial court acted correctly in refusing to reduce the award by the $9,906.98 in medical bills paid for treatment of his injury by his health insurer. Gill v. Maciejewski, No. 07-3451, 546 F.3d 557 (8th Cir. 2008).

     Because there was no undisputed evidence that the plaintiff had resisted arrest, and he claimed that he had been choked and had his face smashed into the ground, there was a disputed issue as to whether the officers used excessive force, and the defendant officers could not appeal the denial of their motion for qualified immunity.  Landis v Phalen, No. 07-4262, 2008 U.S. App. Lexis 21944 (Unpub. 6th Cir.).

     Police officers did not use excessive force in attempting to remove a motorist from his vehicle after he attempted to evade them, and appeared to be non-compliant with demands to exit his car at the end of a vehicle pursuit during which he ran several stop signs and traffic signals. Even though the officers' actions resulted in the motorist suffering a broken arm, "given the heightened suspicion and danger brought about by the car chase and the fact that an officer could not know what other dangers may have been in the car, forcibly removing" the driver from the car "to contain those potential threats was objectively reasonable." Dunn v. Matatall, No. 08-1094, 2008 U.S. App. Lexis 24305 (6th Cir.).

Assault and Battery: Taser/Stun Gun

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

     Motorist subjected to Taser during his arrest for intoxicated driving, causing him to fall to the ground and suffer injuries, was properly awarded $111,000 in damages when he had not attempted to escape or to assault the officers, although he had made certain defiant gestures or statements. Parker v. Gerrish, No. 081045, 2008 U.S. App. Lexis 23079 (1st Cir.).

     Officers were properly denied qualified immunity on federal excessive force claims and immunity under Michigan's Governmental Tort Liability Act on state law assault and battery claims. The decedent allegedly drowned after police beat him with a baton, held him down, and used a Taser on him while he was lying in two feet of sediment, mud, and water. They were arresting him on suspicion of blocking traffic on a highway with moved construction equipment.  If true, the officers' actions were clearly unreasonable. Landis v. Baker, No. 07-2360, 2008 U.S. App. Lexis 21946 (Unpub. 6th Cir.).

Defenses: Absolute Immunity

    Claims against a municipal judge for allegedly conspiring with a police officer to issue an "oral warrant" to search a man's home, knowing that no authority to issue the search warrant existed, were barred by absolute judicial immunity. The officer sought the warrant in response to a call from the man's wife, then involved in a contentious divorce. Lawrence v. Ray, Civil Action No. 07-2812, 2008 U.S. District Lexis 81207 (D.N.J.).

Defenses: Qualified Immunity

     Officers who failed to fully and timely raise and address a qualified immunity defense before the trial court, even if they allegedly failed to do so, as they claimed, because they believed that the plaintiff's constitutional claims lacked merit, essentially waived the defense. The appeals court could not address the issue on appeal without the benefit of the trial court's reasoning on it. The case involved the killing of a person inside a home during a "no knock" entry while executing a warrant. Noel v. Artson, No. 07-1987, 2008 U.S. App. Lexis 22060 (Unpub. 4th Cir.).

     In a case involving the roadside killing of a man by an Alaska State trooper while investigating a suspicious car parked along a highway, a federal appeals court ruled that acting with deliberate indifference is not an adequate standard to constitute conduct "shocking to the conscience" for purposes of stripping the trooper of the defense of qualified immunity on due process claims by the decedent's family. Instead, it must be shown that the trooper acted for the purpose of causing harm which is unrelated to law enforcement objectives. The officers found the decedent asleep inside what they thought was an abandoned vehicle, and woke him with demands that he exit the vehicle, pepper spraying him, in response to which he reacted in pain, driving his vehicle slowly towards the patrol vehicle, whereupon a trooper fired five shots and killed him. Because the trial court, in denying a motion for qualified immunity, used the deliberate indifference standard rather than the more demanding measure of culpability of whether the trooper "acted with a purpose to harm" the man "without regard to legitimate law enforcement objectives," further proceedings were required. Porter v. Osborn, No. 07-35974, 2008 U.S. App. Lexis 21878 (9th Cir.).

Domestic Violence

     A woman told police that her roommate was trying to hit her boyfriend with a screwdriver, and the boyfriend stated that the roommate came towards him with the screwdriver and threw it at him. During an arrest of the roommate for domestic violence, the roommate's arm was broken. Rejecting both false arrest and excessive force claims, a federal appeals court found that there was probable cause for the arrest, and sufficient evidence from which a jury could believe the officer's statements indicating that the arm was broken during the use of a restraint hold used after the arrestee elbowed the officer. Rosa v City of Fort Myers, FL., No. 07-15763, 2008 U.S. App. Lexis 22243 (Unpub. 11th Cir.),

DNA

     The U.S. Supreme Court has announced that it will decide whether a man convicted of sexual assault and kidnapping fourteen years ago has a constitutional right to access to DNA from physical evidence collected in the case for the purpose of conducting tests which he claims will show his innocence, but which were not possible scientifically to perform at the time of his trial. District Attorney's Office v. Osborne, # 08-06, cert. granted, Nov. 3, 2008. Case below: Osborne v. District Attorney's Office, #06-35875, 521 F.3d 1118 (9th Cir. 2008).

False Arrest/Imprisonment: Consular Rights

     A Jamaican citizen arrested in 1998 could not pursue a claim for damages based on the failure of officers to inform him of his rights under the Vienna Convention on Consular Relations to contact Jamaican consular officials concerning his arrest. The Convention does not create private claims for damages, and the rights created by it belong to the nations that are parties to the treaty. Jeremiah v. Burnette, No. 08-13310, 2008 U.S. App. Lexis 22072 (Unpub. 11th Cir.).

False Arrest/Imprisonment: No Warrant

     State judicial marshals were not entitled to quasi-judicial immunity for telling a man that he had to remain in a courtroom for five minutes and using force to stop him when he tried to leave after three minutes. They were also not entitled to qualified immunity on a false arrest claim when no judge had ordered him to stay in the courtroom, and a reasonable marshal should have understood that it was unlawful to detain him. Stanley v. Muzio, No. 3:07cv59, 2008 U.S. Dist. Lexis 74879 (D. Conn.).

     Officers had probable cause to arrest a man for trespassing after he started to flee at their approach when encountered in an alley in a high crime area posted with no trespassing signs. They also used reasonable force, including tackling, a "hammer lock" hold, and handcuffs to subdue him, in light of his resistance. Harvey v. City of Stuart, No. 08-10403, 2008 U.S. App. Lexis 22233 (Unpub. 11th Cir.).

     Even though DNA evidence indicated that a man arrested for allegedly shooting an officer did not match any of the DNA at the crime scene, there was still probable cause for his arrest when he was identified as the shooting suspect by a witness viewing a photo array, he was present at the crime scene at the time of the incident, and he suffered a bullet wound to his shoulder, just as the actual suspect allegedly did. Celestin v. City of New York, No. 04-CV-3009, 2008 U.S. Dist. Lexis 81112 (E.D.N.Y.).   

     Officer was entitled to qualified immunity for arresting motorist for driving under the influence of alcohol. The motorist's bloodshot eyes, slurred speech, and other facts known to the officer, as well as the motorist's failing of a field sobriety test, provided the officer with probable cause to make the arrest. The court also held that the officer did not violate the motorist's due process rights by failing to honor the motorist's request to take a blood or urine test to establish his purported innocence and avoid a license suspension. The motorist was afforded adequate due process in subsequent administrative hearings concerning the license suspension. Christman v. Pietrzak, No. 08-11493, 2008 U.S. App. Lexis 21733 (11th Cir.).

False Arrest/Imprisonment: Warrant

     When there were outstanding issues of both law and fact concerning whether an arrest warrant was facially valid, a federal court granted a plaintiff additional time to submit his response to a motion for summary judgment and vacated its prior grant of summary judgment for the defendants, which had been based on the plaintiff's failure to timely file his response. He claimed that the affidavit and an attachment to it did not suffice to justify the issuance of the warrant. Burris v. Quorum Court of Lincoln County, Arkansas, No. 5:07-CV-087, 2008 U.S. Dist. Lexis 75346 (E.D. Ark.),

Firearms Related: Intentional Use

     Police officer's shooting and killing of a pet dog in a woman's backyard was a Fourth Amendment seizure, but disputed issues of fact barred consideration on appeal of whether police were entitled to qualified immunity for their actions. The officers entered the backyard after receiving reports that a wanted criminal, accompanied by a pit bull, had entered the home, and they encountered the pet dog, who was in the backyard with the woman, her boyfriend, his parents, and her elderly mother. Villo v. Eyre, No. 08-1627, 2008 U.S. App. Lexis 22302 (7th Cir.).

     Plaintiff in lawsuit over death of suspect killed by police after he initiated gunfire failed to demonstrate that officers unlawfully deprived him of his life, and plaintiff decedent's estate failed to pursue an asserted equal protection claim. Estate of Bennett v. Wainwright, No. 072169, 2008 U.S. App. Lexis 24217 (1st Cir.).

     Shooting and killing of a suspect was justified when he failed, during a foot chase, to obey commands, and he tried to take a deputy's gun after wrestling him to the ground, as well as grabbing the deputy's flashlight, and using it to strike him in a manner that almost made him unconscious. Even if there was, as the plaintiff claimed, 21 feet between the deputy and the decedent at the time of the shooting, this distance was merely a factor to be considered and did not, standing alone, make the shooting unreasonable. Any error in deciding to pursue the suspect on foot was, at most negligence, which could not be a basis for a federal civil rights claim. Beckett-Crabtree v. Hair, No. 07-5181, 2008 U.S. App. Lexis 22393 (Unpub. 10th Cir.).

First Amendment

     Federal appeals court overturns denial of preliminary injunction against Missouri law imposing criminal penalties for picketing in front of funerals. First Amendment interests in protecting speech would outweigh any interest the state has in protecting mourners from the plaintiff's message that God is "punishing America" for homosexuality by having Americans, including U.S. soldiers, die. Phelps-Roper v. Nixon, No. 07-1295, 545 F.3d 685 (8th Cir. 2008).

     A police chief acted properly in reporting to a poll inspector that voters who used their parents' address to register appeared to live elsewhere, resulting in a mistaken challenge to their absentee ballots. This was not a violation of the voters' First Amendment or other constitutional rights. Kozuszek v Brewer, No. 07-3224, 2008 U.S. App. Lexis 21088 (7th Cir.)

     Specialty license plates are not a "public forum," and it does not violate the First Amendment rights of an anti-abortion group to deny their request that Illinois issue "Choose Life" license plates. The state can impose a viewpoint neutral, but content based, ban on all messages about abortion on license plates. Choose Life Illinois, Inc. v. White, No. 07-1349, 2008 U.S. App. Lexis 23715 (7th Cir.).

     City curfew ordinance barring minors from appearing in public during designated hours except for certain limited enumerated purposes violated the equal protection and free speech rights of a minor and his father. Anonymous v. City of Rochester, 796 CA 07-02672, 2008 N.Y. App. Div. Lexis 7586 (4th Dept.).

Governmental Liability: Policy/Custom

     A man who claimed that he was attacked by four African-American men outside his ex-wife's home because they recognized him as having fathered two children with his ex-wife failed to show that the city violated his equal protection rights by refusing to pursue a case against his assailants. He did not show that the officers acted under a city policy or practice in closing the case, or that their actions were directed by an official policymaker. The prosecutor chose not to prosecute because of the ex-wife's contradictory statements regarding the alleged assault. Butler v. Milwaukee, No. 09-2035, 2008 U.S. App. Lexis 21525 (Unpub. 7th Cir.).

Off-Duty/Color of Law: Arrest Related

     In a case where police officers worked off-duty providing security in a bar, there were genuine issues of fact regarding whether they had probable cause to arrest a patron who allegedly fought with them after a female patron complained about him sitting in her chair, as well as whether the arrested patron resisted them and whether the officers used excessive force. Sullivan v. Allred, No. 08-40064, 2008 U.S. App. Lexis 22146 (5th Cir.).

     There were genuine issues of fact as to whether an off-duty police officer working for a hotel was acting under color of law in assisting on-duty officers in making allegedly unlawful arrests of patrons. He was dressed in his police uniform at the time. Dean v City of Buffalo, #02-CV-6029P, 2008 U.S. Dist. Lexis 76483 (W.D.N.Y.).

Procedural: Discovery

     When there was a pending motion to dismiss a lawsuit against federal agents on the basis of qualified immunity, the plaintiff was not entitled to pursue discovery to find the real names and locations of currently unknown "John Doe" defendants, as such immunity also provides protection against the burden of pretrial discovery. The lawsuit concerned alleged violations of the Fourth Amendment, due process violations, excessive use of force, and improper disclosure of tax information. Halliday Spjute, #1:07-CV-00620, 2008 U.S. Dist. Lexis 85292 (E.D. Cal.).

Procedural: Evidence

     Trial judge's refusal to allow a plaintiff in an excessive force lawsuit to cross examine the defendant officer regarding his prior discipline and conduct, which allegedly would have shown that he was habitually dishonest in his job, resulting in his resignation, was an abuse of discretion, requiring a new trial on claims against the officer. The excessive force claim against him revolved around an issue of his credibility, so that barring this evidence was not harmless. As for claims against the city, alleged negligent monitoring of an officer cannot be the basis of a federal civil rights claim, and the plaintiff failed to establish any inadequate training by the city on use of force or providing required medical care.  Hinojosa v. Butler, No. 07-50566, 2008 U.S. App. Lexis 22282 (5th Cir.).

Public Protection: Informants

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

      Estate of FBI informant murdered by two organized crime figures was properly awarded $3.1 million in lawsuit against an FBI agent, the FBI, and others. The plaintiff alleged that the FBI agent caused the death by leaking the fact that the decedent was cooperating with authorities to the two organized crime figures, who themselves had been serving as informants. The appeals court rejected the argument that the FBI agent was a rogue agent who acted outside the scope of his employment and in violation of F.B.I. policies. McIntyre v. U.S., No. 07-1663, 2009 U.S. App. Lexis 21629 (1st Cir.).

 Public Protection: Minors

     State social workers and agency were not liable for the accidental shooting and death of a child in foster care. Their alleged repeated failure to check the foster home for the presence of unsecured firearms did not "shock the conscience." Additionally, the state agency could not be sued under 42 U.S.C. Sec. 1983 because of Eleventh Amendment immunity. McLean v. Gordon, No. 07-2250, 2008 U.S. App. Lexis 24298,  (8th Cir.).

Racial/National Origin Discrimination

     African-American failed to show that Nebraska state trooper's stop of vehicle was based on racial profiling, when trooper's unopposed statement of facts indicated that the stop was made because the car was speeding and following another vehicle too closely. There was also no evidence that either the Nebraska governor or Attorney General promoted policies constituting racial profiling in traffic stops. Ballard v. Heineman, No. 08-1103 2008 U.S. App. Lexis 24297 (8th Cir.).

Strip Search

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

     Police officers were not entitled to qualified immunity on female arrestee's claim that they violated her Fourth Amendment rights by subjecting her to a strip search after her misdemeanor arrest in the absence of any individualized suspicion that she possessed contraband, and allegedly broadcast the search throughout the station. Hartline v. Gallo, No. 06-5309, 2008 U.S. App. Lexis 21056 (2nd Cir.).

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AELE Seminars

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

Public Safety Discipline and Internal Investigations
Apr. 13-15, 2009 San Francisco

Click here for more information about all AELE Seminars


   Resources

     Article: "Understanding Interrogation," by Brian Parsi Boetig and Arnold R. Bellmer. 77 FBI Law Enforcement Bulletin No. 10, pg. 17 (Oct. 2008). "Law enforcement professionals must be able to accurately define and understand the term interrogation within different contexts."

     Article: "Abandoning Places," by Jayme W. Holcomb. 77 FBI Law Enforcement Bulletin No. 10, pg. 22 (Oct. 2008). "Law enforcement officers must know Fourth Amendment reasonable expectation of privacy concerns when searching abandoned places."

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

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

Cross References
Assault and Battery: Physical -- See Also, Assault and Battery: Taser/Stun Gun (2nd case)
 Assault and Battery: Physical -- See also, Defenses: Qualified Immunity (1st case)
Defenses: Absolute Immunity -- See also, False Arrest/Imprisonment: No Warrant (1st case)
False Arrest/Imprisonment: No Warrant -- See also, Domestic Violence
Firearms Related: Intentional Use -- See also Defenses: Qualified Immunity (2nd case)
Search and Seizure: Home and Business -- See also, Defenses: Absolute Immunity
U.S. Supreme Court Actions -- See also, DNA

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