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Dec. 14-16, 2009 Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2009 LR May (web edit.)
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This publication highlighted 420 cases or items in 2008.
This issue contains 30 cases or items in 19 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Public Protection: Informants
2009 (5) AELE Mo. L. J. 101

Digest Topics
Assault and Battery: Handcuffs
Assault and Battery: Physical
Disability Discrimination
Dogs (2 cases)
Domestic Violence and Child Abuse
False Arrest/Imprisonment: No Warrant (7 cases)
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (3 cases)
Firearms Related: Second Amendment Issues
First Amendment (2 cases)
Insurance
Negligence: Vehicle Related
Police Plaintiff: Firefighter's Rule
Privacy
Public Protection: Crime and Accident Victims
Race Discrimination
Search and Seizure: Home/Business (2 cases)
Search and Seizure: Person
Search and Seizure: Vehicle

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: Handcuffs

     Arrestee failed to show that a deputy used excessive force in handcuffing him. While the arrestee informed the deputy that he had a right shoulder injury before he was handcuffed, an officer is not required to believe everything an arrestee says, especially when it is said while the officer is in the process of applying the handcuffs. Additionally, the deputy did readjust the handcuffs five minutes after the arrestee expressed his discomfort. The court also rejected a claim for "negligent use" of excessive force, noting that Florida courts had found such a claim to be an "oxymoron." Secondo v. Campbell, #08-14983, 2009 U.S. App. Lexis 7726 (Unpub. 11th Cir.).

Assault and Battery: Physical

    Despite the "de minimis" nature of an arrestee's injuries, he could proceed with his excessive force claim based on his assertion that the officer hit him after he was handcuffed and strapped into a patrol car. The trial court had improperly chosen to believe the officer's version of the incident rather than the arrestee's in granting summary judgment for the officer. If the facts were as the arrestee claimed, a rational juror could find that the officer acted in an objectively unreasonable manner. Grass v. Johnson, #07-5152, 2009 U.S. App. Lexis 7955 (Unpub. 10th Cir.).

Disability Discrimination

     Simply confiscating the cell phone from a hearing impaired arrestee during his brief 24-hour detention did not constitute disability discrimination by the county. The plaintiff failed to show that he was denied services or reasonable accommodation on the basis of his disability. The county sheriff, as an arm of the state under Georgia law, was entitled to Eleventh Amendment immunity on Americans With Disabilities Act (ADA) claims, while no ADA claims were possible against individual officers, since the ADA only prohibits disability discrimination by a public entity. Rylee v. Chapman, #08-15036, 2009 U.S. App. Lexis 5056 (Unpub. 11th Cir.).

Dogs

    A federal appeals court has upheld a $1.5 million award to a man bitten by a police K-9 dog. The court stated that the amount of the award was not "grossly excessive or monstrous." Four officers allegedly allowed the dog to enter the fenced backyard of a house where the man was sleeping outside. The plaintiff was not the suspect the officers sought, but was attacked when the dog saw him. A total of almost $1.1 million in compensatory and punitive damages was awarded to the plaintiff and his wife by a jury, and the trial judge added an award of $516,000 in attorneys' fees and costs. Rogers v. City of Kennewick, #07-35645, 2008 U.S. App. Lexis 27469, 304 Fed. Appx. 599 (Unpub. 9th Cir.).

     Man's claim that a county animal shelter mistakenly killed his pet dog was insufficient to show a violation of the due process clause of the Fourteenth Amendment or the Fourth Amendment, since the claim essentially was for negligence or accident, rather than a violation of civil rights. Raiford v. Greenville County Animal Shelter, #6:09-0287, 2009 U.S. Dist. Lexis 20367 (D.S.C.), magistrate's recommendation adopted by Raiford v. Greenville County Animal Shelter, 2009 U.S. Dist. Lexis 20173 (D.S.C.).

Domestic Violence and Child Abuse

     Mother failed to establish claims that a caseworker and police investigator violated the due process rights of her and her children by allegedly suppressing evidence of physical and sexual abuse of the children by their father and providing false or misleading testimony about the mother's actions during custody hearings. The federal civil rights claims were barred since they involved issues that had been decided in the custody proceedings by state courts. The mother could not, acting as her own lawyer, pursue disability discrimination claims on behalf of one of her children, who has a speech disability, based on the alleged failure of the defendants to provide assistance from a qualified speech therapist for the child during their interviews concerning possible sexual abuse. Shaw v. Lynchburg Dept. of Social Services, #6:08CV00022, 2009 U.S. Dist. Lexis 6659 (W.D. Va.).

False Arrest/Imprisonment: No Warrant

     Because of the "chaos" at the scene of a bicycle and car accident, and the female doctor's refusal to present available medical identification, it was reasonable for an officer to believe that there was probable cause to arrest her, despite the fact that she had actually stopped to attempt to provide medical assistance to a boy on a bike struck by another vehicle. Her action in resisting the officer when he grabbed her arm justified the force employed against her, and there was no evidence that officers present knew of her heart condition before she suffered a cardiopulmonary arrest and died after she was placed in a police vehicle. Arshad v. Congemi, #08-30061, 2009 U.S. App. Lexis 4792 (Unpub. 5th Cir.).

     Drug arrestees failed to show that a sheriff and his chief deputy acted recklessly in using a confidential informant to provide information on the basis of which they were arrested. The informant, allegedly trying to profit from appearing to make controlled drug buys, reportedly only pretended to buy drugs from them, placing the buy money in his sandals and keeping it, and delivering a baking soda mixture to deputies, while telling them it was purchased drugs. This was not discovered until the mixture was found not to be drugs when tested prior to the arrestees' court dates. The defendants acted reasonably in checking the informant's criminal record, and making him wear a wire recording device during some of the supposed drug buys. They did not know he would engage in a scheme to bypass their precautions by using a compartment in his sandals to hide a baking soda mixture. An arrest resulting from false evidence negligently gathered by officers is insufficient to establish a violation of constitutional rights. Robertson v. Elliott, #08-1839, 2009 U.S. App. Lexis 4280 (Unpub. 4th Cir.).

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

     Police officers did not violate the rights of a man when they arrested him without a warrant at the conclusion of a twelve hour armed standoff at his apartment. The incident began when he pointed one of his eighteen rifles at a private security guard investigating loud noises, and continued when the "noticeably intoxicated" suspect also pointed the rifle at arriving officers, threatening to shoot them. The standoff ended when he finally came out and let the officers take him into custody. The court found that once exigent circumstances justify a warrantless arrest, the officers may continue to make one, as long as they are still actively engaged in doing so. "This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody." The appeals court overturned the trial court's judgment as a matter of law for the plaintiff. The trial court reasoned that the officers had ample time to obtain an arrest warrant. The appeals court reinstated a jury verdict for the police. Fisher v. San Jose, #04-16095, 558 F.3d 1069 (9th Cir. 2009).

     In a case where an arrestee served almost fourteen years for kidnapping, rape, and molestation before being exonerated by DNA evidence and a confession by the actual perpetrator, there was no indication that the defendants ignored exculpatory evidence, but there was a material question of fact as to whether one defendant officer fabricated evidence against the plaintiff, requiring further proceedings. McSherry v. Long Beach, #06-55837, 560 F.3d 1125 (9th Cir. 2009).

     An officer had probable cause to arrest a minor male for assault and harassment after he injured several employees attempting to restrain him as he tried to leave the hospital where he had been admitted for psychiatric treatment, where he was waiting for an available bed. Jouthe v. City of New York, #05-CV-1374, 2009 U.S. Dist. Lexis 18163 (E.D.N.Y.).

     Arresting officers' belief that a store customer had presented a counterfeit $100 bill was not "plainly incompetent," entitling them to qualified immunity on his false arrest claim. In fact, the bill presented was a genuine 1985 series $100 bill, which lacked certain anti-counterfeiting features of current $100 bills. Prior to the arrest, a counterfeit detector pen apparently gave indications that the bill was genuine. Rodis v. San Francisco, #05-15522, 2009 U.S. App. Lexis 5444 (9th Cir.).

     A deputy sheriff reasonably relied on statements by a store employee and a store surveillance videotape in arresting a female African-American customer for shoplifting. The videotape showed her entering a fitting room with five pieces of merchandise, but leaving carrying only three, with a price tag sticking out from her bag, and her bag appearing to be fuller than it had previously been. This, combined with statements by a store employee that the missing pieces of merchandise could not be found, justified the customer's arrest and prosecution. Jones v. J.C. Penny's Department Stores, Inc., #07-2870-cv, 2009 U.S. App. Lexis 6250 (Unpub. 2nd Cir.).

False Arrest/Imprisonment: Warrant

     Officers were not entitled to qualified immunity for allegedly making an arrest with an arrest warrant lacking indications of probable cause. The affidavits the officers submitted to obtain the warrant made "conclusory" statements that the arrestee committed the charged crimes, but the officers failed to reveal that part of the information had come from a confidential informant, and failed to provide any facts as to the informant's reliability or basis of knowledge. The officers were not pressed for time or faced with making a split-second decision, the court found, and indeed did not draft the affidavits until four months after the events at issue. Under these circumstances, the officers could not be said to have made an objectively reasonable mistake. Ruiz v. Lebanon County, Pa., #07-4244, 2009 U.S. App. Lexis 7383 (Unpub.3rd Cir.).

Firearms Related: Intentional Use

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

     An officer was not entitled to qualified immunity in a lawsuit filed by a man he shot twice when he answered the officer's knock on his trailer door by coming out holding a rifle. The officers were present on the property searching for an arrestee who had escaped from probation officers. The man claimed that he grabbed his rifle because he believed a "predator" was raiding his chicken coops, that the rifle was pointed at the ground, and that the officer fired without any warning. The court stated that the mere presence of the rifle under these circumstances was insufficient to justify the use of deadly force. The court also found that the search of the curtilage of the trailer violated the trailer resident's Fourth Amendment rights. The appeals court rejected claims of racial discrimination, however. Pena v. Porter, #07-1891, 2009 U.S. App. Lexis 5324 (Unpub. 4th Cir.).

     A federal appeals court rejected claims of excessive force against officers who shot at a fleeing grocery store shoplifter. The shoplifter had resisted an officer trying to detain him after he admitted stealing merchandise when confronted outside the store, prevented the officer from using a Taser on him, and fled in his car at high speed. He drove recklessly, and avoided a rolling police roadblock. Officers on foot shot him as his vehicle came towards them, and when they feared for their safety and the safety of others. The officers who shot mistakenly believed, based on radio transmissions, that the suspect was armed. "We conclude that, under the totality of the circumstances, it was reasonable for the officers to think that [the plaintiff] seriously endangered officers and innocent bystanders, and it was reasonable for the officers to discharge their firearms in [his] direction to stop him. Thus, there was no Fourth Amendment violation." Marion v. City of Corydon, #08-2592, 559 F.3d 693 (7th Cir. 2009).

     Detectives acted reasonably in using deadly force to prevent the escape of a man suspected of having committed a carjacking and murder. They perceived, at the time, that he was potentially armed or otherwise posed a threat of harm to others. Their shooting and killing of the suspect as he tried to evade capture, therefore, did not violate either his Fourth Amendment or substantive due process rights. The plaintiffs in a lawsuit arising out of the incident also failed to show that the suspect's death was caused by a police department policy or custom. Lopez v. Las Vegas Metropolitan Police Dept., #2:06-cv-00951, 2009 U.S. Dist. Lexis 17596 (D. Nev.).

Firearms Related: Second Amendment Issues

     Gun show promoters failed to show that an ordinance prohibiting the presence of firearms on county property violated their Second Amendment or First Amendment rights. The federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The county could regulate gun possession in sensitive public spaces, and its actions did not violate the promoters' right to self-defense. Even if the holding of a gun show was expressive conduct, the county ordinance was not intended to suppress speech, and the desire to reduce gun violence was a reasonable basis for the law. Finally, the appeals court rejected an equal protection claim based on an argument that the ordinance unequally applied to the possession of guns for promoters holding a gun show and possession of guns for "entertainment" purposes. The court found that entertainment events were not similarly situated to gun shows, as they involved safety measures that the gun show promoters couldn't meet. Nordyke v. King, No. 07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.).

First Amendment

     The City of Los Angeles settled lawsuits arising from a 2007 May Day immigration rights demonstration in a public park for $12.85 million. A class action lawsuit, as well as a number of individual cases, claimed that officers used improper crowd control tactics, resulting in numerous injuries. 8 (1) Police Practices Review (PARC) 7-8. A report by the LAPD to the Board of Police Commissioners concerning the incident is available online.

     A Missouri state specialty license plate program was violative of the First Amendment in giving the state total discretion to decide what viewpoints could be expressed on the license plate. A federal appeals court found that the license plates did not constitute speech by the government, but rather speech by the private motorists whose cars display the plates. The court upheld an injunction ordering the state to issue requested anti-abortion "Choose Life" specialty license plates. Roach v. Davis, #08-1429, 560 F.3d 860 (8th Cir. 2009).

Insurance

     Insurance company was not required to provide coverage for a lawsuit against police department when no notice of the case was received until four days before the trial, depriving the insurer of the opportunity to investigate the claim or participate in preparing a defense. The terms of the policy require immediate notice of any lawsuit, and the city, which is a "reasonably sophisticated insured," waited twenty-eight months before providing notice to the insurer. American Safety Casualty Insurance Co. v. City of Waukegan, #07 C 1990, 2009 U.S. Dist. Lexis 25742 (N.D. Ill.).

Negligence: Vehicle Related

     A police officer was negligent, but did not act willfully and wantonly when he pulled back onto a highway to investigate the presence of a vehicle with hazards lights on in a breakdown lane, and collided with the back of  the vehicle. The officer was responding to an emergency within the meaning of an Ohio state statute, and therefore was entitled to immunity from liability for the resulting damages. Longley v. Thailing, #91661, 2009 Ohio App. Lexis 1062 (8th Dist.).

Police Plaintiff: Firefighter's Rule

     The firefighter's rule did not bar an injured sheriff's lawsuit against an independent contractor who built a house and deck. The sheriff's injuries occurred when the deck stairs collapsed as he was walking down then after being summoned to the house to investigate a sounding burglar alarm. The Ohio Supreme Court ruled that extending the firefighter's rule to independent contractors would be improper, as their duties concerning construction had nothing to do with whether the sheriff's presence was required on the premises. Torchik v. Heskett, #2008-0534, 2009 Ohio Lexis 706.

Privacy

     A police officer did not violate a motorist's federal or state privacy rights when, during a phone call to his home, he told the motorist's stepmother that he was issuing a summons for the misdemeanor offense of driving without insurance, and that the motorist should come to the police station to pick it up. The driver had provided the officer with proof of insurance at the scene of an accident, and the officer subsequently learned that the policy had been cancelled. Larsen v. Johnston, #08-4184, 2009 U.S. App. Lexis 8368 (Unpub. 10th Cir.).

Public Protection: Crime and Accident Victims

     No evidence was produced from which it could be established that police officers acted with deliberate indifference and unreasonably delayed the transporting of a shooting victim to the hospital, resulting in his death. The undisputed facts showed that officers arriving on the scene summoned an ambulance, and that the victim arrived at the hospital fourteen minutes after the scene of the shooting was secured. There was no evidence from which any delay could be attributed to the police. Zipoli v. Caraballo, #3:06CV00388, 2009 U.S. Dist. Lexis 26033 (D. Conn.).

Race Discrimination

     An African-American resident failed to show that a police officer subjected him to racial discrimination because he and his family, the only African-Americans on the block, were the only residents investigated after graffiti appeared there. He failed to show that he was treated differently than other similarly situated people, since he had just moved to the area, and a gang investigator, whether correctly or not, had told the officer that he was the uncle of a gang member who belonged to a gang that the graffiti related to. Other residents on the block were not identified as being related to gang members, and were all long-standing residents of the area. Flowers v. City of Minneapolis, Minnesota; #07-2705, 2009 U.S. App. Lexis 5215 (8th Cir.).

Search and Seizure: Home/Business

     Officers were entitled to qualified immunity from liability for their search of a home pursuant to a search warrant. Information developed during an investigation indicated that the owner operated a house of prostitution elsewhere. An officer had a reasonable belief that there was probable cause that evidence related to the prostitution business would be present in the home. Johnson v. Walton. #07-55935, 2009 U.S. App. Lexis 5213 (9th Cir.).

     Sheriff's deputies who conducted a search of a residence in obedience to court orders were entitled to "quasi-judicial" immunity from liability for the alleged illegality of the search. The orders directed the seizure of certain items from the home allegedly needed as evidence in a pending civil lawsuit, and were apparently sought in order to prevent the possible destruction or alteration of the evidence. The court orders were facially valid, and the judge's alleged error in issuing the orders did not deprive him of jurisdiction to do so. Under Utah law, the deputies were required to carry out court orders, and could have faced contempt of court charges had they failed to do so. Moss v. Kopp, #07-4098, 2009 U.S. App. Lexis 5752 (10th Cir.).

Search and Seizure: Person

     Subjecting a female arrestee to lowering her jeans enough to enable a police chief to take a photograph of a tattoo on her abdomen two inches from her hipbone did not constitute a strip search, and the taking of the photo was necessary in order to establish the arrestee's identity. Additionally, the arrestee was not required to disrobe, and the photo was not taken in a public setting. The underage arrestee had given false personal information after open beer cans were seen in the vehicle in which she was riding, and after she failed a sobriety test and was arrested for underage drinking. The chief did not violate the arrestee's Fourth or Fourteenth Amendment rights. Schmidt v. City of Bella Villa, #07-3053, 2009 U.S. App. Lexis 4017 (8th Cir.).

Search and Seizure: Vehicle

     Police officers were entitled to qualified immunity for their actions in seizing a vehicle from a parking lot and returning it to the purported owner, who had insurance documents and a vehicle registration showing that the vehicle was hers. She also showed the officers a court-issued summons, which indicated that the vehicle was being operated in violation of state law and without her permission. The possessor of the vehicle claimed that carrying out the seizure without a warrant violated his Fourth Amendment rights, but the officers could reasonably have believed that their actions were legal. Bumgarner v. Hart, #08-1724, 2009 U.S. App. Lexis 4650 (Unpub. 3rd 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

     Batons: "A Pilot Study of Kinetic Energy Transfer Based Upon Police Baton Designs," by K. Collie, B. Wargo, C. Berry, and C. Mesloh, 9 (1) Law Enforcement Executive Forum 121-128 (2009). "Although the smaller batons may be easier to handle, these lighter batons simply cannot generate the force of larger, heavier batons. Consequently, this practice actually works against the smaller officers by reducing the force that they are capable of delivering. A baton that is too light or too small may cause an officer to strike a subject repeatedly to effectively control a suspect, which is perceived badly by both the media and the public. While a heavier baton is more likely to cause injury, this risk is reduced when strikes are properly delivered to an approved target area on the body and is more likely to be effective in a single strike. The most practical, less-than-lethal force option is one that incapacitates with the least number of applications."

     Freedom of Information: Memorandum for the Heads of Executive Departments and Agencies Re: The Freedom of Information Act (FOIA). New guidelines issued March 19, 2009 by the U.S. Attorney General state that departments and agencies "should not withhold information simply because it may do so legally," but instead apply a presumption of openness. This rescinded a previous October 12, 2001 FOIA memo. Under the new guidelines, information will only be withheld if it can reasonably foreseen that its disclosure will result in harm to a statutorily protected interest or if the disclosure is prohibited by law.

     Health Emergencies: "Police Planning for an Influenza Pandemic: Case Studies and Recommendations from the Field," by Andrea M. Luna, Corina Sole Brito, and Elizabeth A. Sanberg (PERF Oct. 2007). The Police Executive Research Forum (PERF) has recently advised that this publication may be helpful in preparing for a law enforcement role in responding to a swine flu pandemic.

     Internet Crime: 2008 Internet Crime Report (Internet Crime Complaint Center, Mar. 30, 2009). Released by the Justice Department and the FBI. The number of complaints received rose 33% in 2008 compared to the prior year: 275,284 (2008) compared to 206,884 (2007).

     Tasers: TASER® Electronic Control Devices: Physiology, Pathology, and Law (Hardcover), by Mark W. Kroll (Editor), Jeffrey D. Ho (Editor), List Price: $119.00. (Springer, March 15, 2009).

      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, False Arrest/Imprisonment: No Warrant (1st case)
Attorneys' Fees: For Plaintiff -- See also, Dogs (1st case)
Defenses: Eleventh Amendment Immunity -- See also, Disability Discrimination
 Disability Discrimination -- See also, Domestic Violence and Child Abuse
First Amendment -- See also, Firearms Related: Second Amendment Issues
Property -- See also, Search and Seizure: Vehicle
Property -- See also, Dogs (2nd case)
Search and Seizure: Home/Business -- See also, Firearms Related: Intentional Use (1st case)

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