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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2009 LR Apr. (web edit.)
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This publication highlighted 420 cases or items in 2008.
This issue contains 30 cases or items in 17 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Public Protection: Witnesses
2009 (4) AELE Mo. L. J. 101

Digest Topics
Assault and Battery: Chemical
Assault and Battery: Physical
Attorneys' Fees: For Plaintiff
Damages: Punitive
Defenses: Qualified Immunity
Disability Discrimination (2 cases)
Dogs
Domestic Violence
False Arrest/Imprisonment: No Warrant (4 cases)
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (5 cases)
First Amendment (4 cases)
Interrogation
Off-Duty/Color of Law: Personal Action
Public Protection: 911 Systems
Search and Seizure: Home/Business (3 cases)
Terrorism, National Security, and Homeland Security Issues

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
Oct. 26-28, 2009 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 14-16, 2009 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: Chemical

     While an arrestee with a brain aneurysm failed to establish a basis for excessive force claims against a township, individual officers were not entitled to qualified immunity on his assertions that their alleged use of pepper spray to subdue him, combined with wrestling him to the ground and repeatedly punching him caused further injuries in violation of his constitutional rights. Jackson v. Tinicum Township, #07-1988, 2009 U.S. App. Lexis 2704 (Unpub. 3rd Cir.).

Assault and Battery: Physical

     Park police officer acted reasonably in applying force to the arm of a man arrested for having his dogs off a leash and assaulting the officer, when the man's refusal to obey orders indicated that he might try to escape or resist. The fact that the arrestee did not suffer any injury or bruise supported the conclusion that no more force was used than was reasonable under the circumstances. Wasserman v. Rodacker, #07-5307, 2009 U.S. App. Lexis 3556 (D.C. Cir.).

Attorneys' Fees: For Plaintiff

     In an excessive force civil rights case arising from police officers' firing of seventeen shots into the body of a suspect who was already lying on the ground, killing him, a jury awarded no actual or nominal damages, despite the plaintiff's demand for $500,000 in actual/compensatory damages, but awarded a total of $40,000 in punitive damages. The trial court then declined to award any attorneys' fees under 42 U.S.C. Sec. 1988, A federal appeals court found that the trial court was mistaken in failing to award attorneys' fees, that the plaintiff qualified as a "prevailing" plaintiff, who should ordinarily be awarded attorneys' fees, unless such an award would result in injustice, and ordered further proceedings to determine the proper amount of attorneys' fees to award. Nazario v. Rodriguez, #07-2265, 2009 U.S. App. Lexis 2906 (1st Cir.).

Damages: Punitive

      A jury awarded a construction supervisor a total of $35,000 in compensatory and $350,000 in punitive damages on a false arrest claim against a mayor and police. The punitive damages award was ruled to be grossly excessive, and in violation of due process, particularly as the mayor had no fair notice that he might face a penalty of that size. The trial court therefore properly reduced the punitive damages award to $35,000. Mendez-Matos v. Municipality of Guaynabo, #07-2303, 2009 U.S. App. Lexis 3702 (1st Cir.).

Defenses: Qualified Immunity

     Sheriff and deputy were entitled to qualified immunity on arrestee's claim that he had been subjected to excessive force when he was arrested while having an epileptic seizure and then allegedly denied medical attention. The trial court acted in error when it deferred ruling on the motion for qualified immunity while granting the plaintiff time to conduct further discovery. The defendants had not, however, claimed qualified immunity on the plaintiff's disability discrimination, equal protection, or state law claims, so those could proceed. Everson v. Leis, #07-4461, 2009 U.S. App. Lexis 3288 (6th Cir.).

Disability Discrimination

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

     Federal appeals court rejects claim that police officers failed to properly reasonably accommodate, under the Americans with Disabilities Act (ADA), a mentally ill man holding a woman hostage in his apartment. Even if there was such a duty of reasonable accommodation, which the court did not decide, the defendants would have satisfied it by their actions of seeking information which confirmed that the suspect had a mental illness, and calling in a hostage negotiator. There was no evidence that they did anything to escalate the situation, and they tried to calm the situation down by trying to speak with the suspect, and even waited two hours before entering the apartment and shooting and killing the suspect, who came towards them swinging what appeared to be a scythe and brandishing what looked like a knife. The accommodations proposed by the plaintiffs, which included summoning mental health professional and the suspect's family and administering medication, were not reasonable under the circumstances. Waller v. City of Danville Virginia, #072099, 2009 U.S. App. Lexis 2853 (4th Cir.).

     In a disability discrimination lawsuit brought by three deaf arrestees, a deaf girlfriend, and a deaf husband, a county provided public "services" to non-detained individuals by enabling arrestees to contact them, so that the husband and girlfriend stated viable disability discrimination claims under federal and Minnesota state law based on the alleged failure to provide communications assistance accommodating their deafness. Bahl v. County of Ramsey, Civil #08-5001, 2009 U.S. Dist. Lexis 10946 (D. Minn.).

Dogs

     Deputy sheriff acted reasonably in using a canine to catch an armed robbery suspect who was engaged in actively fleeing. Because this deputy was not engaged in an excessive use of force, a fellow deputy had no duty to intervene. Crenshaw v. Lister, #08-14289, 2009 U.S. App. Lexis 2294 (11th Cir.).

Domestic Violence

     Police department was entitled to immunity from liability under Illinois law on the claim that its personnel acted willfully and wantonly in failing to prevent a woman from being killed by her ex-boyfriend. The ex-boyfriend's chiropractor told the police department that the ex-boyfriend was talking about having the ex-girlfriend killed and seeking to set up a pattern of appointments as a possible alibi. Rejecting the argument that a limitation to tort immunity contained in a state domestic violence law applied, the Illinois Supreme Court ruled that it was inapplicable because police were not involved in enforcement of the domestic violence statute at the time of the murder. Lacey v. The Village of Palatine, #106353, 2009 Ill. Lexis 186.

False Arrest/Imprisonment: No Warrant

     A parole agent who placed a man under arrest based on a mistaken belief that he had violated the terms of his probation was not entitled to summary judgment on the basis of qualified immunity for allegedly placing him in jail intentionally using a form identifying him as a parole, rather than probation, violator, thus depriving him of a prompt probable cause hearing before a judge, and his continued incarceration for 13 days. Drogosch v. Metcalf, #08-1249, 2009 U.S. App. Lexis 3728 (6th Cir.).

     If the facts alleged by an arrestee were true, officers lacked probable cause to arrest her for acting as an accessory after the fact to her son's alleged crime. While it was true that she had previously lied about the location of her son, the fact that she delayed answering her home door at night, but subsequently cooperated with the officers, did not provide support for the officer's assertion that she intended to hinder them and harbor her son and acted on that intention. Evans v. City of Etowah, Tenn., #08-5463, 2009 U.S. App. Lexis 3672 (Unpub. 6th Cir.).

     Probable cause existed to arrest and prosecute a husband for obstruction based on his actions when officers arrived at his residence in response to reports of a domestic disturbance. His non-cooperation prevented them from securing the scene and properly investigating whether he had assaulted his wife. There was also probable cause to subsequently prosecute the wife also for obstruction of the officers. Lassiter v. Bremerton, #07-35848, 2009 U.S. App. Lexis 4013 (9th Cir.).

     If an arrestee's story was true, that officers arrested him on drug charges after an individual only spoke to him for a minute about his jacket as he stood outside a dry cleaner, there was no probable cause for his arrest. The defendants were entitled to summary judgment, however, on a malicious abuse of process claim, however, since a news report concerning quotas for traffic tickets was not sufficient to support a claim that the plaintiff had been arrested to meet a quota for drug arrests. Douglas v. City of New York, #06 Civ. 6134, 2009 U.S. Dist. Lexis 8328 (S.D.N.Y,).

False Arrest/Imprisonment: Warrant

     Based on statements by a school principal and a teacher about an allegedly harassing and threatening phone message the plaintiff made to the teacher, along with the reading of a transcript of the message, there was probable cause for an arrest warrant, and there still would have been even if allegedly omitted information had been included in the affidavit for the warrant. Leone v. Fisher, #07-4851, 2009 U.S. App. Lexis 3987 (Unpub. 2nd Cir.).

Firearms Related: Intentional Use

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

     A man who claimed he was shot four times by police while holding an axe in a "non-threatening" manner and slowly and quietly walking down his driveway with a "non-violent protesting" state of mind stated a possible claim for excessive use of force when he was 25 feet from the officers at the time, and there was no indication that he was escaping or had been warned before being shot, even though the officers believed that he had committed a robbery and he did not comply with their orders to drop the axe. Jennis v. Rood, #07-0545, 2009 U.S. App. Lexis 3230 (Unpub. 2nd Cir.).

     Deputies were entitled to qualified immunity for shooting and killing a motorist who refused to pull his truck over, led them on a high speed chase, refused to show his hands after finally pulling over, and then drove his vehicle in the direction of a deputy standing nearby. The decedent used his truck in an aggressive manner justifying the belief that he posed a risk of death or serious physical harm to officers or the public. Deputies could also reasonably believe that he was trying to escape, and provided him with an adequate warning before firing. McCullough v. Antolini, #08-10176, 2009 U.S. App. Lexis 3874 (11th Cir.).

     An officer was entitled to summary judgment on California state law battery and negligence claims by a bystander struck and injured by fragments from a stray bullet fired at a murder suspect. At the time of the shooting, the suspect was driving up on the curb of a strip mall and heading in the direction of two officers, one of whom had fallen to the ground just before the shooting. The shooting was a reasonable attempt to prevent the suspect from escaping, or from injuring an officer or members of the public. Brown v. Ransweiler, #D051983, 2009 Cal. App. Lexis 200 (4th Dist.).

     Federal judge declines to overturn a jury verdict in favor of a police officer in a lawsuit brought by the estate of a man found dead from a bullet wound a day after a high speed police pursuit of a suspect was conducted near his home. There were disputes as to whether shots were fired at the time of the chase, whether a shot was fired by the officer, whether any shots fired were fired before the officer arrived on the scene, or whether no shots at all were fired on the evening of the pursuit. It was not certain how the bullet had come to be in the decedent, and it was for the jury to determine which version of events to believe. Estate of Tejada v. Flores, Civil #02-1209, 2009 U.S. Dist. Lexis 9237 (D.P.R.).

     A detective acted reasonably in shooting an armed man fleeing him and running towards another person in a dark alley. Arrington v. D.C., Civil Action #07-0170, 2009 U.S. Dist. Lexis 11680 (D.D.C.).

First Amendment

     Store owner could proceed with his First Amendment claim arising from his arrest and prosecution for attaching, to a "Road Construction Ahead" traffic sign, a warning about a sheriff's checkpoint nearby. The trial court improperly considered information outside the complaint and improperly drew inferences in favor of deputies in granting dismissal of the lawsuit on the basis that the plaintiff's speech had not been constitutionally protected and that he had failed to show a lack of probable cause for his arrest. Rodriguez v. Rutter, #07-51423, 2009 U.S. App. Lexis 2440 (Unpub. 5th Cir.).

     A county ordinance with licensing requirements and regulations concerning "sexually-oriented" businesses was properly content-neutral and aimed at the negative secondary effects of the presence of the business, and was not an unconstitutional prior restraint. Additionally, the defendant county had met its burden of showing why it believed the ordinance at issue would have the desired effect. Richland Bookmart, Inc. v. Knox County, Tennessee, #07-6469, 2009 U.S. App. Lexis 2729 (6th Cir.).

     A visual artist barred from selling his work on the streets, in the parks, or on other city property under a municipal ordinance could not pursue civil rights claims for damages against individual defendants, who were entitled to qualified immunity because the constitutional rights they alleged violated were not "clearly" established at the time. Further proceedings, however, were required on claims for municipal liability, to which the qualified immunity defense did not apply. Christensen v. Park City Mun. Corp., #07-4273, 2009 U.S. App. Lexis 2268 (10th Cir.).

     Whether or not an officer or his colleagues had a retaliatory motive for stopping a motorist for speeding because he had supported a candidate running for sheriff in that day's primary election was irrelevant when the officer had probable cause based on observation of the speeding vehicle. The trial court also detailed subsequent observations concerning signs of possible intoxication, which also supported the arrest. Hubble v. Voorhees, #06-3546, 2009 U.S. App. Lexis 3732 (Unpub.7th Cir.).

Interrogation

     Arrestee could pursue civil rights claims against officers based on alleged violations of his Fourth and Fifth Amendment rights during searches of two homes and his subsequent prosecution on drug charges. The trial court erroneously ruled that the order of the criminal trial court denying the arrestee's motion for suppression of the evidence, including self-incriminatory statements, barred his lawsuit. While the charges against the plaintiff were dropped and he never went to trial, he could pursue a Fifth Amendment claim based on the allegation that his coerced statements had been used at the suppression hearing. Best v. Portland, #07-2765, 2009 U.S. App. Lexis 2289 (7th Cir.).

Off-Duty/Color of Law: Personal Action

     Federal court concludes that private attorneys, hired by a public entity, cannot be held liable under federal civil rights laws for the advice they offer. "Courts in the Second Circuit have consistently held that attorneys and consultants who provide advice to municipal entities are not acting under color of state law." Westhampton Beach Assoc. v. Strebel, #08-CV-1493, PACER Doc. 44 (E.D.N.Y. 2/19/2009).

Public Protection: 911 Systems

     In a 2-1 decision, an intermediate Ohio appeals court ruled that a city and its 911 dispatcher were not liable for negligence in advising a mother to stop following her estranged husband after he had kidnapped her 18-month old daughter, who he subsequently murdered. The dispatcher did not engage in willful and wanton misconduct in advising the mother to either pull over or to return to her home and wait for police to provide assistance. The city and dispatcher were therefore entitled to governmental immunity. Myrick v. City of Cincinnati, #C-080119, 2008 Ohio App. Lexis 5730 (Ohio App.1st Dist.).

Search and Seizure: Home/Business

     Officers who believed that a man who had allegedly previously threatened suicide was a possible danger to himself had exigent circumstances sufficient to remove him from his home and take him to a doctor for possible psychological evaluation. Cloaninger v. McDevitt, #07-2054, 2009 U.S. App. Lexis 2322 (4th Cir.).

      In Pearson v. Callahan, #07-751, 2009 U.S. Lexis 59, the U.S. Supreme Court ruled that it was not "clearly established" for purposes of qualified immunity, that a warrantless entry into a drug suspect's residence was unlawful when it was based on his prior consent to entry by an undercover informant to whom he allegedly had sold drugs (the application of the "consent once removed" doctrine, involving such consent given to undercover officers to mere informants). On remand, in Callahan v. Millard Cty., #06-4135, 2009 U.S. App. Lexis 3715 (10th Cir.), in light of the U.S. Supreme Court's decision, the federal appeals court found that the defendants were entitled to summary judgment on the basis of qualified immunity on federal civil rights search and seizure claims arising from the warrantless entry.

      Search warrant for a residence had sufficient information to support a fair probability that evidence of crime would be found there. The use of armed 20-person SWAT team, three K9 officers, and a battering ram in carrying out the search was justified by the officers' surveillance, which showed that the residence had multiple floors and that there were multiple occupants who needed to be detained, and who were believed to be preparing to escape. Walker v. City of Wilmington, Civ. #06-288, 579 F. Supp. 2d 563 (D. Del. 2008).

Terrorism, National Security, and Homeland Security Issues

     A man allegedly subjected to illegal wiretapping, physical surveillance, and placement on terrorist watch lists after telling an airline that it should screen everything to avoid the placement of bombs on airplanes could pursue Fourth Amendment, First Amendment, and privacy claims, as he sufficiently alleged that he suffered harm from these actions. Additionally, while 49 U.S.C. Sec. 46110(a) denied the court jurisdiction over claims concerning the Transportation Security Administration watch lists, it did not bar claims concerning the plaintiff's possible placement on other watch lists. Tooley v. Napolitano, #07-5080, 2009 U.S. App. Lexis 3252 (D.C. Cir.).

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AELE Seminars

Lethal and Less Lethal Force
Oct. 26-28, 2009 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 14-16, 2009 Las Vegas

Click here for more information about all AELE Seminars


   Resources

     Article: "Spirituality: An Invisible Weapon for Wounded Warriors," by Samuel L. Feemster, 78 FBI Law Enforcement Bulletin No. 1, pgs. 1-12 (Jan. 2009). "The cultivation of spirituality in law enforcement, at both the individual and organizational levels, can operate as an invisible weapon for officers."

     Article: "In Harm's Way: Duty of Care for Child Exploitation and Pornography Investigators," by Meredith Krause, 78 FBI Law Enforcement Bulletin No. 1, pgs. 20- 29 (Jan. 2009). "Those law enforcement personnel involved in child exploitation and pornography investigations have numerous personal and professional risks."

     Statistics: State and Local Law Enforcement Training Academies, 2006. Presents findings from the 2006 BJS Census of Law Enforcement Training Academies, updating the results of the initial census conducted in 2002. The latest census included 648 academies providing basic training during 2006. Data are presented on the number and type of training instructors; types of on- and off-site training facilities; operating expenditures; funding; basic training curriculum; and the number of instruction hours for each training topic. The report also includes the number and characteristics of recruits entering basic training and completion rates by race, gender, and type of training environment. Special topics include training related to terrorism and community policing. Highlights include the following: Basic training programs averaged 19 weeks in length. Topics with the most instruction time included firearms (median of 60 hours), self-defense (51 hours), health and fitness (46 hours), patrol procedures (40 hours), investigations (40 hours), emergency vehicle operations (40 hours), criminal law (36 hours), and basic first aid (24 hours). Of an estimated 57,000 recruits who entered basic training programs during 2005, 86% or 49,000 successfully completed their program and graduated from the academy. Academies with a predominately non-stress, or academic, orientation (89%) had a higher completion rate than academies with a predominately stress, or paramilitary, orientation (80%). 02/09 NCJ 222987. Press release | Acrobat file (163K) | ASCII file (31K) | Spreadsheets (zip format 27K)

     Vehicle Information:  A new federal government online vehicle database provides used car buyers access to critical vehicle history, and will allow law enforcement agencies to better monitor and prevent the selling of dangerous and stolen vehicles and other auto fraud. The new National Motor Vehicle Title Information System allows car buyers to get access to a used vehicle's records -- including odometer data, title history, salvage and "total loss" designations, and theft reports. See The National Motor Vehicle Title Information System FBI Press Release: National Auto Fraud and Theft Prevention System Goes Live and FBI Fact Sheet: National Motor Vehicle Title Information System,

      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, Defenses: Qualified Immunity
False Arrest/Imprisonment: No Warrant -- See also, First Amendment (1st and 4th cases)
Firearms Related: Intentional Use -- See also, Attorneys' Fees: For Plaintiff
Wiretapping -- See also, Terrorism, National Security, and Homeland Security Issues

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