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Assault and Battery: Handcuffs

     Officers acted reasonably with respect to the force used while handcuffing an arrestee. While he contended that their actions had caused him shoulder injuries, the court noted that he refused to put his hands behind his back, and merely explained that he thought it would "hurt." He did not tell the officers about any purported infirmities or pre-existing injury that could be aggravated by handcuffing. The officers, in quickly pulling his hands behind him in order to accomplish the handcuffing, did not act in a manner that could be expected to "clearly injure" typical arrestees. Stainback v. Dixon, #08-3563, 2009 U.S. App. Lexis 14115 (7th Cir.).

Assault and Battery: Non-Lethal Projectiles

     A college student filed an excessive force lawsuit against police after he suffered injuries from pepperball launchers that officers fired at bottle-throwing students in a disorderly crowd of up to 1000 people at a party, in the course of attempting to disperse the crowd. The plaintiff's own deposition testimony appeared to indicate that he was not in an area near a doorway when officers fired, thereby suggesting that he was not an intended target of the shooting, but he subsequently presented deposition testimony of two supporting witnesses indicating that he was in the doorway area at the time. The trial court granted the defendants' motion for summary judgment, applying a "sham affidavit" rule which states that a party may not avoid summary judgment by creating a factual dispute with his own testimony through the conflicting evidence of other witnesses. A federal appeals court reversed, however, finding that the rule did not go as far as the trial court applied it. The rule applies, the court indicated, when a party literally attempts to manufacture a "bogus dispute with himself to defeat summary judgment," such as by creating a "sham affidavit." In this case, the plaintiff "points to deposition testimony given under oath by other ... witnesses who had a different viewpoint from the plaintiff's and who had not suffered head injuries sufficient to cause temporary blindness." Since the grant of summary judgment was based on an improper application of the "sham affidavit" rule, the trial court was reversed, and further proceedings ordered. Nelson v. City of Davis, #07-16905, 2009 U.S. App. Lexis 14765 (9th Cir.).

Assault and Battery: Stun Guns/Tasers

     UCLA has entered into a $220,000 settlement in a lawsuit filed by a student who a campus police officer repeatedly shocked with a Taser after he refused to show his identification card upon request. The student, who is Iranian-American, argued that he was treated this way because of his Middle Eastern appearance. Tabatabainejad v. Univ. of Cal. L.A., #2:07-cv-00389, U.S. Dist. Court, (C.D. Calif.).

     Editor's Note:  The Police Assessment Resource Center (PARC) conducted an outside investigation of the incident. See the PARC report here.

Defenses: Collateral Estoppel

     The family of a suspect shot and killed following a police chase lost a lawsuit in federal court claiming excessive use of force. Because state law wrongful death claims had been dismissed in the case, they then sued in California state court. An intermediate California appeals court has held that the result in the federal lawsuit barred (collaterally estopped) the plaintiffs from recovering damages on their claim that officers were negligent in using deadly force in shooting and killing the suspect, who was unarmed, but who they thought had a gun and was firing. (The shots heard were actually one of the officers firing at the suspect). The appeals court found that the issue of whether the officers used reasonable care in using deadly force was submitted and actually decided in the federal case and could not be relitigated. Hernandez v. City of Pomona, #S149499, 2009 Cal. Lexis 4630.

DNA

     Qualified immunity was improperly granted in a lawsuit over the forcible taking of a DNA sample from a pretrial detainee merely because a prosecutor wanted to put the sample in a "cold case" data bank. At the time, the court stated, there was no warrant or court order authorizing the taking of the sample, nor was the detainee suspected of a crime for which a DNA sample might be justified. An officer allegedly forced his jaw open and forcefully took a swab from the inside of his mouth. If true, this action violated the detainee's clearly established Fourth Amendment rights. Friedman v. Boucher, No. 05-15675, 2009 U.S. App. Lexis 13440 (9th Cir.).   .

Dogs

     An officer was utilizing a police dog in a search for a 23-year-old African-American suspect. An 57-year-old Caucasian man, however, claimed that the dog attacked him. He further contended that there was no warning that the dog was being "sicced" on him, and that the officer failed to remove the dog once it was clear that he was not the suspect sought. The dog was allegedly only brought under control after the man's friend made a threat to kill the dog. The court rejected a claim based on failure to warn, finding no clear prior caselaw that releasing a dog without a warning violates constitutional rights, but there were factual issues as to whether the officer improperly failed to intervene once it became apparent that the person being attacked was not the suspect. Such a duty to intervene, the court noted, was clearly established. Trammell v. Thomason, #08-13801, 2009 U.S. App. Lexis 13217 (Unpub. 11th Cir.).

Domestic Violence

     A lawsuit claimed that officers failed to provide protection required under the Illinois Domestic Violence Act when a woman, subsequently killed, repeatedly contacted police to complain that her husband was threatening to use guns in their home to kill her. An intermediate Illinois appeals court ruled that the trial court had improperly dismissed the lawsuit, erroneously ruling that the protection of the statute did not apply in the absence of the decedent having obtained or attempted to obtain a domestic violence order of protection. Beyer v. The City of Joliet, No. 3-08-0023, 2009 Ill. App. Lexis 356 (3rd Dist.).

     After a woman's intoxicated boyfriend was arrested for assaulting her at a bar, he allegedly was released that evening, despite having told police that he was on probation for an aggravated assault, and having stated that it "was not over" between himself and his girlfriend. After his release, he again attacked her, causing her severe permanent injuries. Rejecting a due process failure to warn claim, the court found that the officers' failure to warn the plaintiff of her boyfriend's release did not "shock the conscience" or constitute deliberate indifference. The federal court, after dismissing the civil rights claim, declined to exercise jurisdiction over state law claims in the lawsuit. Caissie v. City of Cape May, #1:08-cv-0303, 2009 U.S. Dist. Lexis 44666 (D.N.J.).

False Arrest/Imprisonment: Warrant

     A police detective who obtained an arrest warrant for a dancer on charges of assaulting two patrons of a nightclub where he worked was not liable for false arrest. The detective interviewed all three parties during his investigation, and was entitled to qualified immunity as he could proceed, on the basis of the patrons' statements, to prepare the affidavit for the warrant for arrest for assault. Indeed, the dancer himself admitted that he first touched the patrons and did so without consent, which constituted assault. Frazier v. Williams, #06-615 , 2009 U.S. Dist. Lexis 46614 (D.D.C.).

Firearms Related: Intentional Use

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

     A federal appeals court has upheld a $5 million jury award against a deputy who shot and killed a bicycle rider, including $2 million in compensatory and $3 million in punitive damages. The rider allegedly refused to stop when approached by the deputy for riding without a light on the wrong side of a road. The rider allegedly assaulted the deputy. The deputy released his dog, and the rider then allegedly tried to drown the dog in a puddle, as well as reaching into his pocket and extracting a "shiny" object, whereupon the deputy shot and killed him. Despite the fact that the officer was the sole surviving witness to the incident, the appeals court found that there was evidence that supported the jury's apparent disbelief of his version of the incident. This included evidence that the officer's uniform was not muddied, despite his claim that the decedent pushed him and that they then struggled in the mud, and medical evidence indicating that the decedent's right arm was "virtually useless" due to a prior gunshot wound from three months before. This contradicted the officer's statement that he saw the decedent reach for a shiny object (a pair of pliers later recovered from the scene) in his right back pocket. There was also testimony that it would have been impossible for the deputy "to have seen anything from the claimed view-point." The lesions and bite-marks on the decedent's body, the court remarked, were as consistent with "protective wounds as with an attempt to drown" the dog. A reasonable jury, the court stated, could find that it was unreasonable for the defendant to use deadly force on a "disabled suspect who was attempting to protect himself from the officer's canine." The court upheld the rejection of various claims against the county for inadequate training and supervision, or policies resulting in the excessive use of force. Goodman v. Harris County, #07-20816, 2009 U.S. App. Lexis 12663 (5th Cir.).

     An officer acted reasonably in shooting and killing a suicidal man armed with a gun that he refused to drop, and which he pointed first at his own head and then at the officers just before they shot him. Garczynski v. Bradshaw, No. 08-16100, 2009 U.S. App. Lexis 15179 (11th Cir.).

Firearms Related: Second Amendment Issues

     A federal appeals court has rejected a Second Amendment constitutional challenge to two municipalities' handgun bans, ruling that the individual right to bear arms that the U.S. Supreme Court has held is protected by the Second Amendment applies only to the federal government, and is not "incorporated" by the Fourteenth Amendment to apply to the states and municipalities. It held that any decision to apply the Second Amendment in that fashion must be made by the U.S. Supreme Court. The plaintiffs in the case have filed a petition seeking U.S. Supreme Court review of the decision. Nat'l Rifle Ass'n of Am. v. City of Chicago, No. 08-4241, 2009 U.S. App. Lexis 11721 (7th Cir.), petition for certiorari filed June 3, 2009.

     An intermediate Pennsylvania appeals court has upheld an injunction barring a city from enforcing two ordinances prohibiting the possession, sale, and transfer of certain types of guns, including assault weapons, and prohibiting purchase of a handgun through a straw purchaser. State law regarding weapons, the court ruled, has the effect of denying municipalities in the state power to regulate guns. The court also upheld the trial court's finding that the plaintiffs lacked standing to challenge three other ordinances which authorize temporary removal of guns when a person poses a risk of imminent harm, requiring notice from the owners of lost or stolen guns, and barring persons subject to an abuse order from possessing or acquiring guns. National Rifle Association v. City of Philadelphia, #1305 C.D. 2008, 2009 Pa. Commw. Lexis;

First Amendment

     Rules established by the City of Seattle governing street performers in an 80-acre public park and entertainment complex known as the Seattle Center were impermissibly broad, in violation of the First Amendment, given the area's status as a traditional public forum. The rules require such performers to obtain permits before performing; set out specified locations for street performances and established a first-come, first-served rule for using the locations; allowed only passive solicitation of funds by street performers; and prohibited any communication, by street performers or anyone else, within thirty feet of visitors to the Seattle Center who are waiting in line, attending an event, or sitting in a spot available for eating or drinking. The court rejected the city's argument that these were valid "time, place, or manner" restrictions. Berger v. Seattle, #05-35752, 2009 U.S. App. Lexis 13609 (9th Cir.).

     An adult entertainment cabaret, which challenged a city's adult business zoning ordinances as violating its First Amendment rights, was entitled to injunctive relief against enforcement of the ordinances, which were unconstitutional as applied to it, even though they were "content-neutral" and facially valid. Once the trial court ruled that the ordinances were an unconstitutional prior restraint on free speech, it was erroneous not to enjoin their enforcement. H.D.V.-Greektown, LLC v. Detroit, #08-1329, 2009 U.S. App. Lexis 12588 (6th Cir.).

     Animal rights protestors had previously reached a settlement with a county government, which agreed not to enforce a county permit requirement on small spontaneous animal rights demonstrations. Subsequently, county employees called city police to complain about the animal rights protestors demonstrating against a circus. The police arrived and ended the demonstration, based on lack of a permit,. as required by a city ordinance. The circus was taking place on land under city, but not county, jurisdiction. The city later reached a settlement with the demonstrators agreeing not to enforce the advance permit requirement against such demonstrations. The demonstrators then sued the county, based on the actions of its employees in calling city police. A federal appeals court upheld summary judgment for the county and two of its employees. It held that the county employees, in calling city police to enforce a city ordinance, did not act under color of law, but only did what any private citizen could do. The county and its employees were not responsible for the actions of the city police officers. Utah Animal Rights Coal. v. Salt Lake, #07-4275 566 F.3d 1236 (10th Cir. 2009).

Governmental Liability: Policy/Custom

     An arrestee's claim that a city was liable for false arrest and excessive use of force was rejected by a federal appeals court. The plaintiff's main argument, the court noted, was that he faced excessive force from an officer who allegedly kicked him in the ribs and then handcuffed him. Further, he argued that such force was the result of a police department custom that amounted to ignoring excessive force complaints, as well as a "code of silence" among officers, and a failure to investigate excessive force incidents. There was, however, no identification of a policymaker prior to his argument on appeal, and no evidence that the then identified policymaker, the city council members, were aware of the alleged facts in the case or of the purported code of silence. McGregory v. City of Jackson, Mississippi, #08-60944, 2009 U.S. App. Lexis 13873 (Unpub. 5th Cir.).

Homeless Persons

     A resident of a homeless shelter could proceed with his lawsuit against the city and a corporation seeking damages for injuries suffered when an assailant shot him. He alleged negligence in the hiring and training of personnel employed at the shelter. The lawsuit was not time barred, and a prior lawsuit regarding the same incident, although it had been dismissed for failure to comply with discovery orders, was not dismissed for want of prosecution, as his defaults in discovery were not in bad faith or willful, and therefore did not bar the continued assertion of his claims. Stora v. City of New York, 2009 N.Y. Misc. Lexis 1210 (Sup. N.Y. County).

Immigrants

     An intermediate California appeals court has upheld summary judgment for the defendants in a lawsuit challenging a Los Angeles Police Department policy barring officers from initiating action with the sole objective of discovering the immigration status of an individual, or arresting anyone for illegal entry into the U.S. The plaintiff was unable to show any instances where an officer was disciplined for violating the policy, barring an "as applied" challenge to the policy. There was no indication that police were prevented from voluntarily contacting federal immigration authorities in order to determine a person's immigration status. The court also rejected a facial challenge to the policy, finding no inevitable conflict between it and a federal law, 8 U.S.C. Sec. 1373, which invalidates any state or local restrictions on voluntary exchange of information with federal immigration personnel, since only a hypothetical" conflict was presented. The court ruled that the policy was not preempted by federal law, but that a California state statute governing law enforcement cooperation with the federal Office of Immigration and Customs Enforcement.(ICE), Pen. Code Sec 834b, was itself so preempted. That statute says that California law enforcement agencies "shall fully cooperate" with ICE regarding any arrestee suspected of being in the U.S. illegally. This statute is preempted as an impermissible state regulation of immigration, the court stated, Sturgeon v. Bratton, #B209913, 2009 Cal. App. Lexis 967 (2nd Dist.).

Interrogation: Children

     In a lawsuit arising from the interrogation of an 11-year-old minor, then in foster care, regarding the death of a two-year-old child, 6th Amendment claims against an assistant prosecutor were properly dismissed since no arrest or formal judicial proceeding had then been initiated. Additionally, the assistant prosecutor was entitled to qualified immunity, as it was not "well established" that a minor had any 6th Amendment right to counsel in connection with the filing of a petition in an action affecting the parent-child relationship. Murray v. Earle, #08-50603, 2009 U.S. App. Lexis 11882 (Unpub. 5th Cir.).

Juveniles

     New York's highest court rules that a Rochester, N.Y. nighttime curfew for juveniles violates both the childrens' substantive due process rights to "freedom of movement," and parents' rights to direct the upbringing of their children. While the intended purpose of the ordinance of preventing victimization of minors was legitimate, the proof offered by the city of the connection between the goal and the curfew used to achieve it failed to show the needed connection. The incidents the city pointed to would not have been prevented by the curfew since two of the victims killed met their deaths during hours before the time of the curfew, and a third minor decedent was already subject to an individual curfew. Crime statistics presented also did not support the argument for the curfew, and there was no substantial relationship between the curfew and another stated goal of promotion of parental supervision. Anonymous v. Rochester, #81, 2009 N.Y. Lexis 2010.

Public Protection: Crime/Accident Victims

     A shooting victim sought help from police. The officers allegedly pushed him onto an asphalt street and administered first aid there. At the time, he was shirtless and the temperature was in excess of 100 degrees. He allegedly told the officers that the asphalt was subjecting his exposed skin to burning. Despite this, the officers allegedly continued to restrain him against the asphalt for a number of minutes before another officer was told to get a blanket to place under him. Second-degree burns allegedly resulted. A federal appeals court upheld the denial of qualified immunity for the officers, finding that their actions constituted a Fourth Amendment seizure, in that they resisted the plaintiff's efforts to get up, and their alleged actions were objectively unreasonable. It is clearly established, the court stated, that it violates the Fourth Amendment to ignore, in an unreasonable way, complaints of pain from a seized person. Howard v. Kansas City Police Department; #08-2448, 2009 U.S. App. Lexis 14415 (8th Cir.).

Pursuits: Law Enforcement

     Relatives of a motorist shot and killed by a police officer at the conclusion of a vehicular pursuit sued the officer and city for excessive use of force. During the pursuit, the motorist had run a red light, tried to ram a police vehicle, and drove on the wrong side of a highway. The officer was attempting to deploy drop sticks, and the motorist then swerved his vehicle towards him. This was followed by the officer firing four or five times, striking the motorist in the back of the head and killing him. Affirming summary judgment for both the officer and the city, a federal appeals court first stated that the facts hypothetically could constitute an excessive use of force if, as the defendants accepted for purposes of appeal, the officer did not face immediate danger and no innocent bystanders were nearby. Qualified immunity, however, was still proper for the officer, since he did not act unreasonably in believing that the potential danger to others justified the use of deadly force under the circumstances. There was no showing of a policy or custom of the city causing the death as required for municipal liability. Cordova v. Aragon, #08-1222, 2009 U.S. App. Lexis 13043 (10th Cir.).

Racial/National Origin Discrimination

     During a time of "violent unrest" on a Mohawk Indian reservation in New York, state officials responsible for policing the area were accused of violating the residents' rights to equal protection by responding to the violence in an inadequate way. The plaintiffs in a federal civil rights lawsuit argued that an improper express racial classification was used by the defendants in establishing roadblocks at the edge of the reservation and using them to keep non-residents out or give them information about the ongoing violence. The plaintiffs also objected to the defendants allegedly having informed an armed Mohawk organization when police entered the reservation, and the cessation, during that period, of regular police patrols on the land. The court found no violation of equal protection. It found that the roadblocks aimed at limiting the area of the violence, that notifying the armed group of police presence, even if it amounted to accommodation of that group's demands, was not based on race. There was neither an express racial classification nor discriminatory intent, according to the court. Pyke v. Cuomo, #07-0334, 2009 U.S. App. Lexis 11119 (2nd Cir.).

     Two African-American owners of rental property were given several citations for alleged violations on the premises, which was subsequently padlocked on the basis that it was unfit for human beings to live in. Rejecting claims of racial discrimination, the court pointed out that the plaintiffs had failed to show that any similarly situated uninhabitable homes not owned by African-Americans had not been padlocked. Additionally no intentional discrimination was shown. Andrews v. Borough of Collingsdale, #08-1532, 2009 U.S. App. Lexis11052 (Unpub. 3rd Cir.).

Search and Seizure: Home/Business

     Rejecting unlawful search claims from a rental property owner, the court found that, even if a search or inspection of the property had occurred, the Fourth Amendment was not violated since tenants present on the property consented. Tarantino v. City of Hornell, #05-CV-6587, 2009 U.S. Dist. Lexis 42397 (W.D.N.Y.).

     An man convicted of a criminal charge sued, claiming that officers had violated his Fourth Amendment rights by searching his bag, which he entrusted to his roommate. A federal appeals court rejected the argument that his conviction barred his Fourth Amendment lawsuit. Since he was convicted through a guilty plea, a decision in his favor on the Fourth Amendment claim would not imply the invalidity of the conviction, as it did not rest on any evidence obtained through the search. Easterling v. Moeller, #08-3741, 2009 U.S. App. Lexis 14067 (Unpub. 7th Cir.).

U.S. Supreme Court Actions

     A Pakistani Muslim was arrested on suspicion of terrorist activity by federal agents following the September 11, 2001 terrorist attack and detained in restrictive conditions. He filed a federal civil rights action against a number of federal officials, including the Attorney General and the F.B.I, director, claiming that he had been unjustly labeled a person of "high interest" because of his race, religion, or national origin. The lawsuit also objected to the arrest and detention of thousands of Arab Muslim men during the September 11th investigation, as well as to purportedly overly harsh conditions of confinement. The Court overturned the denial of the government's motion to dismiss the lawsuit, finding that there were insufficient facts pled to show purposeful and unlawful discrimination. There was no showing that the policy under which the plaintiff was detained was the product of discrimination. The Court noted that because the September 11th terrorist attacks were carried out by Arab Muslims, "it is not surprising" that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy's purpose was to target neither Arabs nor Muslims. The Court stated that the appeals court below should determine whether the plaintiff should be allowed to amend his complaint. Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. Lexis 3472.

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

     The search by school personnel of a13-year-old female student's underwear, seeking prescription strength and over the counter pain medication barred by school rules without advance permission, was a violation of the Fourth Amendment, as the facts presented did not provide reasonable suspicion justifying extending a permissible search of the student's belongings and person to one in which she was made to pull out her underwear. Despite this, school officials were entitled to qualified immunity since there was not, at the time, clearly established law on the issue. "We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law." Safford Unified Sch. Dist. No. 1. v. Redding, #08-479, 2009 U.S. Lexis 4735.

     The U.S. Supreme Court, in a federal civil rights lawsuit brought by a man convicted of sexual assault and other crimes, held that the plaintiff had no constitutional right to post-conviction access to the state's evidence for DNA testing for the purpose of attempting to prove his innocence. The Court also reasoned that it was a legislative task to develop procedures and rules for obtaining access to such evidence for DNA testing. District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536.

•Return to the Contents menu.

     Domestic Violence: "Making Arrests in Domestic Violence Cases: What Police Should Know," by David Hirschel, Ph.D., National Institute of Justice (NIJ) (June 2009).

     Domestic Violence: "Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges," by Andrew R. Klein, Published June 2009. "The purpose of this work is to describe to practitioners what the research tells us about domestic violence, including its perpetrators and victims, the impact of current responses to it and, more particularly, the implications of that research for day-to-day, real-world responses to domestic violence by law enforcement officers, prosecutors and judges." This NIJ ePub is based on three final reports submitted to the National Institute of Justice under contract number 2007M-07032, which was awarded to Advocates for Human Potential.

     History: The History of Policing by Lieutenant Raymond E. Foster, LAPD (ret.) (58 pgs. 2009).

     Immigration Detainees: A new publication from the Immigrant Justice Network examines what it terms the “Dangerous Merger” between the criminal justice system and immigration enforcement system. The paper touches on such phenomenon as the “Criminal Alien” program and how ICE contracts with local jails allegedly increase racial profiling.

     Tasers: Report of the American Medical Association (AMA) Council on Science and Public Health on "Use of Tasers by Law Enforcement Agencies." (June 15, 2009).

     Technology: The website of the National Clearinghouse for Science, Technology and the Law states that it assembles the available scientific, technological, and relevant legal resources into a comprehensive "one-stop" searchable database with equal access for all. NCSTL provides: a searchable database of legal, forensic, and technology resources; a reference collection of law, science, and technology material; partnerships with law schools, professional associations, and federal and state agencies; national conferences on science, technology, and the law; community acceptance panels; training modules and primers with an emphasis on distance education; and training for defense counsel who are handling cases involving biological evidence on the applications and limitations of DNA evidence as stated in the President's DNA Initiative.

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

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