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Jan. 11-13, 2010 – Las Vegas

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Mar. 08-10, 2010 & Oct. 11-13, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2010 LR January (web edit.)
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This publication highlighted 356 cases or items in 2009.
This issue contains 25 cases or items in 17 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Civil Liability for Exceeding the Scope of a Search Warrant
2010 (1) AELE Mo. L. J. 101

Digest Topics
 Assault and Battery: Chemical
Assault and Battery: Handcuffs
Assault and Battery: Physical
Defenses: Qualified Immunity
Dogs
Domestic Violence and Child Abuse 2 cases)
False Arrest/Imprisonment: No Warrant (3 cases)
Firearms Related: Intentional Use (3 cases)
First Amendment (2 cases)
Governmental Liability: Policy/Custom
Malicious Prosecution
Negligence: Vehicle Related
Property
Public Protection: Crime Victims
Pursuits: Law Enforcement (2 cases)
Search and Seizure: Home/Business (2 cases)
Search and Seizure: Search Warrants

Resources

Cross References


AELE Seminars

Jail and Prisoner Legal Issues
Jan. 11-13, 2010 – Las Vegas

Lethal and Less Lethal Force
Mar. 08-10, 2010 & Oct. 11-13, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – 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

     Deputies responding to complaints of loud music coming from a party encountered an off-duty deputy who was providing music at the party. When told to turn off the music, he allegedly responded in a "confrontational" tone, and was sprayed with pepper spray in the face. He then pulled out his cell phone, and a deputy pointed his pistol at him, shouting, "gun." The off-duty deputy was arrested. In a federal civil rights lawsuit over the incident, the appeals court held that the deputies were not entitled to qualified immunity, as it was not clear that they had probable cause to arrest the off-duty deputy for "waving a gun," and there was a genuine factual issue as to whether the use of the pepper spray was excessive, given the minor nature of the infraction involved, and the absence of physically aggressive action by the arrestee. Howell v. Sheriff of Palm Beach County, #09-10940, 2009 U.S. App. Lexis 22592 (Unpub. 11th Cir.).

Assault and Battery: Handcuffs

     A woman seized following a domestic disturbance claimed that an officer refused to loosen her handcuffs when she complained that they were too tight, and pushed her face into the ground after she was already subdued and handcuffed. The officer was not entitled to qualified immunity in an excessive force lawsuit, as the Fourth Amendment right not to be subjected to unduly tight handcuffs was clearly established, and the officer admitted that the detainee had complained of their tightness and that he disregarded the complaint. Bruising, skin marks, and the pain the detainee claimed created a genuine factual issue as to whether she suffered an injury during the 40 to 50 minutes she was handcuffed. Morrison v. Board of Trustees of Green Township, #08-3051, 2009 U.S. App. Lexis 22159 (6th Cir.).

Assault and Battery: Physical

    An arrestee contended that he had responded to an officer's instructions to stop merely by turning and greeting him, but that the officer then pushed him without provocation. When the arrestee pushed back, the officer allegedly punched his face and took him to the ground, causing injuries to his ribs, eye, and face that necessitated three days in the hospital. If the facts were as alleged by the arrestee, a jury could find the force used excessive, even if the arrestee pushed the officer, since the push may have been minimal. The officer was not entitled to qualified immunity. Rohrbough v. Hall, #08-3617, 2009 U.S. App. Lexis 24588 (8th Cir.).

Defenses: Qualified Immunity

     An officer responding to a call concerning a man "out of control" who was "trashing" a house, observed that a car had been driven through a garage door. As the husband came towards him, he charged holding two golf clubs over his head, and the officer fired three times, killing him. The officer claimed that he felt trapped by the crashed car and unable to safely retreat, as well as threatened by the husband. Neighbors, however, stated that they saw nothing in the decedent's hands. A federal appeals court held that it had no jurisdiction over a denial of qualified immunity to the officer, since the resolution depended on disputed material facts. Hanson v. City of Fairview Park, Ohio, #08-4238, 2009 U.S. App. Lexis 22866 (Unpub. 6th Cir.).

Dogs

     A deputy responding, with other officers, to a call reporting that a man with a gun was threatening his wife, released a police dog to locate the husband in the neighborhood, and then shot and killed the husband when he refused to obey orders to put down his weapon, instead aiming the gun at the officers. The use of the dog, under these circumstances, was neither a use of deadly force nor excessive. Shooting the husband was justified, as it was reasonable to think that he posed an immediate threat to the officers and others. The deputy was entitled to qualified immunity, and the county was not liable on a theory of alleged inadequate training. Thomson v. Salt Lake County, Utah, #06-4304, 2009 U.S. App. Lexis 23677 (10th Cir.).

Domestic Violence and Child Abuse

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

     A fourteen-year old daughter ran away from the home of her mother and stepfather. Her mother and father were divorced. When interviewed, she told an officer that her stepfather had struck her and also that he repeatedly grabbed her breasts. The officer, without contacting the father, and lacking a warrant, took the girl into protective custody. The father, mother, and stepfather sued, claiming that the officer violated their Fourteenth Amendment right to familial association. A federal appeals court upheld summary judgment for the officer because he had a reasonable basis to belief that the girl faced imminent danger of physical harm, and the officer was entitled to qualified immunity on claims arising from his failure to contact the father. The county, however, was not entitled to summary judgment on the father's claim that the failure to contact him violated his rights. Burke v County of Alameda, #08-15658, 2009 U.S. App. Lexis 24715 (9th Cir.).

     Three officers went to the home of a man's brother, after the man's girlfriend told them that he had assaulted her and may have gone there. Two officers handcuffed the brother after he answered the door, while the third officer made a warrantless entry into the house to look for the suspect. A federal appeals court rejected the argument that the warrantless entry was justified by the possible presence inside of the house of a domestic violence suspect with a child. No facts were asserted which would indicate that the suspect was a threat to his child or anyone else, and a belief that an unarmed domestic violence suspect may be present does not justify a protective sweep of the premises under these conditions. A jury could also find that the use of force against the brother was not objectively reasonable, since he did not resist and was given no time to comply with a request to step outside before he was forcibly removed and subsequently allegedly injured. The officers were not entitled to qualified immunity. Smith v. Kansas City, #09-1484, 2009 U.S. App. Lexis 24591 (8th Cir.).

False Arrest/Imprisonment: No Warrant

   Even though there was a dispute as to whether officers had arguable probable cause at the time of the arrest to charge a man with felony possession of a controlled substance, they did then have probable cause to arrest him for driving under the influence, and did not violate the Fourth Amendment by subsequently charging him with the drug offense. Officers were not required to arrest the man again to bring the drug charges. The officers were entitled to qualified immunity, therefore, on false arrest claims. Angeline v. City of Hoover, Alabama, #09-12208, 2009 U.S. App. Lexis 24334 (Unpub. 11th Cir.).

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

     While a city and its officers did not have probable cause to believe that all protesters arrested during a demonstration knew that the protest lacked a required permit, the city need only show that officers reasonably believed that those arrested were part of a rioting group of participants in the protest who were damaging property, and, under the circumstances, it could lawfully carry out a mass arrest without first giving those arrested an order to disperse and time to comply. "[P]olice witnesses must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law...If police have probable cause to believe that the group they are arresting is committing or has committed a crime, no more is necessary. ...Requiring a dispersal order in addition to the ordinary probable cause threshold would be particularly anomalous in a case like this in which officers have reason to believe that an entire crowd is engaged in or encouraging a riot.” Further proceedings were still ordered concerning the factual circumstances surrounding how the plaintiffs were arrested. Carr v. Dist. of Columbia, #08-7083, 2009 U.S. App. Lexis 25482 (D.C. Cir).

    A man arrested during a sting operation in which a female police officer posed as a prostitute claimed that officers lacked probable cause to arrest him. The female officer had a hidden microphone, which allowed another officer, stationed nearby, to hear her conversations with potential customers. The arrestee argued that the arresting officer could not tell, listening to the conversation, whether he, or another man present, had made particular statements to the female officer. The male officer, however, heard two male voices engaged in negotiating a price for a sexual act, and could see that the female officer was talking with two men, including the plaintiff. Under these circumstances, it did not defeat probable cause for the arrest that he could not determine which of the men made each specific statement. Probable cause existed for both arrests. Mills v. City of Harrisburg, #09-1180, 2009 U.S. App. Lexis 24094 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

    There was ballistic evidence and forensic evidence that suggested that a motorist was shot from 3 to 6 inches away, and that the officer may have reached into the car and shot him from a closer distance than he asserted, creating genuine disputed material facts concerning the reasonableness of the shooting. If, as the motorist's surviving adoptive parents argued, he was an unarmed suspect whose left arm was restrained by a wrist lock and whose right arm was in the air at the time, he would not have posed a risk of harm to the officer, and the force used would have been excessive. The appeals court did not overturn the denial of qualified immunity. Ougel v. Amite City Police Dept., #09-30080, 2009 U.S. App. Lexis 24750 (Unpub. 5th Cir.).

     Officers watching a convenience store which they had been told was going to be robbed observed two men walking towards an apartment complex near the store, and one of them had a toy gun in his waistband. The officers told them to drop to the ground and drop the gun. One man complied, but the man with the toy gun remained standing, and an officer shot and killed him. The officers were not entitled to qualified immunity, when it was disputed whether they had identified themselves as officers, whether they had seen the decedent holding the "gun" in his hand, and whether they reasonably feared for their safety, as well as whether a warning was given before deadly force was used. Nance v. Sammis, #09-1353, 2009 U.S. App. Lexis 24612 (8th Cir.).

     A man claimed that officers used excessive force against him while taking him into custody on an arrest warrant and that they "wanted to kill him because he refused to help certain corrupt police officers participate in drug trafficking." Summary judgment was properly granted to the officers. The evidence showed that the plaintiff, who claimed to have been unarmed, was armed and shot first. Additionally, he was only shot five times, not 14 or 16 times, as he claimed. A jury in the plaintiff's criminal trial found him guilty of three charges of attempted murder, rejecting his defense of justification, and supporting the conclusion that he was armed and had fired at officers. Brookins v. County of Allegheny, #09-2453, 2009 U.S. App. Lexis 23543 (Unpub. 3rd Cir.).

First Amendment

   A New York City regulation prohibiting "new" parades on Fifth Avenue, used to reject an anti-war group's permits applications to march on two sections of that street, did not violate the First Amendment. The regulation did not discriminate on the basis of subject matter or viewpoint, but was content neutral, banning "any" new parades, regardless of what they were about or what viewpoint they expressed. Furthermore, the city granted the group permission to march, although over a different route than the one requested. The 100-block ban was narrow enough to properly serve the city's interest in avoiding noise and congestion. International Action Ctr. v. New York, No. 07-5739, 2009 U.S. App. Lexis 25180 (2nd Cir.).

     A city council ejected an audience member from a meeting after he gave a silent one-second Nazi salute objecting to the council's action in cutting off another audience member after his time to speak expired. He was arrested when he refused to leave. A federal appeals court ruled that this did not violate the arrestee's First Amendment rights, as he was not ousted for a permissible expression of his point of view, but rather for protesting a good faith attempt by the chairperson of the meeting to maintain order and enforce council rules. Norse v. City of Santa Cruz, No. 07-15814, 2009 U.S. App. Lexis 24123 (9th Cir.).

Governmental Liability: Policy/Custom

     A county was not liable for a deputy's alleged actions in subjecting a man to harassment by spreading a rumor that he was a pedophile and eavesdropping on his computer. There was no proof that the deputy acted pursuant to an official county policy or custom allowing deputies to make false statements or target perceived pedophiles for persecution. The county's immediate actions in investigating, prosecuting, and firing the deputy indicated that he acted without the defendants' knowledge or authorization. Missel v. County of Monroe, #09-0235, 2009 U.S. App. Lexis 24120 (Unpub.2nd Cir.).

Malicious Prosecution

     Under prior precedent, Newsome v. McCabe, #00-2326, 256 F. 3rd 747 (7th Cir. 2001), the U.S. Court of Appeals for the Seventh Circuit ruled that there could be no separate cause of action under federal civil rights law for malicious prosecution if a state remedy for such claims exists. Illinois does provide a state remedy for malicious prosecution. In this case, the Seventh Circuit rejected an argument that its prior ruling should be reconsidered, while also noting that this did not preclude a federal civil rights claim against officers who misrepresent evidence to prosecutors--a due process claim based on the withholding of exculpatory evidence. The plaintiff, who was acquitted in his criminal trial, therefore, could not bring a federal civil rights malicious prosecution action, but could have a due process claim if, as he asserted, the prompt disclosure of suppressed evidence would have changed prosecutors' decision to put him on trial to begin with. The plaintiff, however, had limited his appeal to asking the court to alter its prior rulings concerning claims for malicious prosecution, which the court declined to do. Parish v. City of Chicago, #09-1385, 2009 U.S. App. Lexis 24699 (Unpub. 7th Cir.).

Negligence: Vehicle Related

     A jury found an officer liable to two motorists both injured in a traffic accident that occurred while he was responding to an emergency call. The jury instructions made it clear that the officer was to be judged on a different standard than other drivers involved in the incident, and the officer failed to preserve for appeal his argument that the trial judge did not properly charge the jury on the question of how to consider police department rules. The judgments against the officer were upheld, but the trial court's award to one of the motorists of costs for expert witnesses was reversed. Alvarado v. Dillon, #504825, 2009 N.Y. App. Div. Lexis 8367 (3rd Dept.).

Property

     After the issuance of a temporary order of protection against him, the plaintiff surrendered to the sheriff's department three rifles, three handguns, a shotgun, and some shooting accessories. When he later tried to retrieve this property, he found out that the guns had been destroyed, allegedly in compliance with an applicable statutory scheme. An appeals court found that the destruction of the handguns was, in fact, authorized by the statute, but that the destruction of the shooting accessories, shotgun, and rifles was not authorized, as they did not fall within the meaning of "firearms" as defined by the law in question. The plaintiff, therefore, validly asserted a federal civil rights claim against the sheriff's department for depriving him of a protected property interest. The sheriff, however, was entitled to qualified immunity from liability, since he would not have known that these actions violated the plaintiff's constitutional rights. Maio v Kralik, #2008-02532, 2009 N.Y. App. Div. Lexis 8062 (2nd Dept.).

Public Protection: Crime Victims

    A woman sued a transit authority and railroad, seeking damages for an attack she suffered on their property when she was attacked by a group of homeless men living there. The basis of her complaint was the failure of the defendants to remove the homeless encampment from the property, and the alleged failure to consider safety problems that could arise from their "homeless outreach" program. Rejecting liability, an intermediate New York appellate court found that the defendants made a discretionary governmental policy decision in enacting a "social outreach" program rather than using force to oust the homeless group from the premises. As a result, there could be no liability under state law for the allegedly resulting attack. Doe v City of New York, 2008-09461, 2009 N.Y. App. Div. Lexis 8419 (2nd Dept.).

Pursuits: Law Enforcement

     During a high-speed chase, two armed robbery suspects extinguished their car's headlights, and two miles later collided with a motorist turning into a gas station while on his way to work, who died in the accident. The motorist's widow sued, arguing that the pursuing officers violated her husband's substantive due process rights by maintaining the pursuit after the suspects turned off their headlights. Granting the officers qualified immunity, the appeals court found that their conduct did not "shock the conscience" because their alleged violations of departmental policy were not clear, and the armed robbery crime was a serious offense. Furthermore, even if it was found that their actions violated the decedent's constitutional rights, those rights were not "clearly established" at the time of the incident. Jones v. Byrnes, #08-1889, 2009 U.S. App. Lexis 24476 (6th Cir.).

     Late at night, a police officer pulled his vehicle behind a motorcyclist traveling at 43 miles per hour in a 30 mile-per-hour zone. The motorcyclist increased his speed to elude the officer, and a ten-minute chase ensued, reaching speeds near 90 miles-per-hour. The motorcyclist lost control of his vehicle and crashed, suffering injuries. Rejecting claims that the officers acted with reckless disregard for safety, an intermediate New York appellate court ruled that the accident and the motorcyclist's injuries were caused by his own actions, not the police decisions to begin or continue pursuit. Greenawalt v Village of Cambridge, #506616, 2009 N.Y. App. Div. Lexis 7963 (3rd Dept.).

Search and Seizure: Home/Business

     After officers searching his house pursuant to a search warrant found 7.6 grams of methamphetamine ("meth"), the arrestee complained about pain he was suffering due to recent surgery. Officers present, two of whom allegedly had their guns drawn, purportedly ordered him to take two tablets of a strong narcotic pain reliever, oxycontin, which he did. They then allegedly compelled him to reveal where he was concealing another 21 grams of meth. He later pled guilty to possession of meth with intent to distribute. An appeals court reasoned that a favorable ruling on the arrestee's Fourth Amendment and due process claims would not necessarily call into question the validity of his conviction, since the drugs found before the alleged compelled disclosure of the additional drugs were sufficient to support the charges. Because the arrestee pled guilty without going to trial, there was no violation of the Fifth Amendment prohibition on compelled self-incrimination, since no allegedly compelled incriminatory statements were used as evidence. The arrestee could continue with his unreasonable search claim and his due process claim, and seek damages for alleged physical injury resulting from a compelled overdose of pain medication. Pearson v. Weischedel, #09-8058, 2009 U.S. App. Lexis 22788 (Unpub. 10th Cir.).

     A police chief went to a residence, seeking to arrest a married couple's daughter. At the door, the mother refused to cooperate, and the chief tried to restrain and handcuff her, but she retreated inside. The chief sought assistance from county sheriff's deputies. When they arrived, and asked the mother to come outside, she told them to come inside if they wanted to talk to her. Her husband then opened the door for them. After entering, a deputy took her into custody, and escorted her out of the house and into the police chief's car. The daughter was then arrested as she stood in the open doorway. Rejecting claims of unlawful search and seizure and false arrest, a federal appeals court noted that the deputies' entrance into the home was based on the consent from the mother and her husband, and found that it was reasonable for officers to believe that there was probable cause to arrest the mother. Berglund v. Pottawatomie County Board of County Commissioners, #09-6000, 2009 U.S. App. Lexis 23293 (Unpub.10th Cir.).

Search and Seizure: Search Warrants

     A police officer in Louisiana claimed that he was in charge of a center distributing supplies during Hurricane Katrina. He further argued that political animus a police chief had towards him was the reason that an illegal search of his residence was carried out and he was falsely arrested for purported theft of supplies. The officer sufficiently alleged that a detective, in applying for search and arrest warrants, both made false statements and omitted material information from the affidavits. Further discovery was ordered to determine if a police officer who entered the plaintiff's property and reported seeing allegedly stolen supplies was entitled to qualified immunity, because of conflicting versions as to his purposes for entering. Nothing more than "speculation," however, supported the claim that the police department's chief of investigations approved the filing of false affidavits, and there was also insufficient detail to support a claim that the police chief was personally involved in directing the filing of the affidavits. Claims against the city were properly dismissed in the absence of a showing that anyone acted pursuant to a municipal policy or custom. Floyd v. City of Kenner, #08-30637, 2009 U.S. App. Lexis 23913 (5th Cir.).

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AELE Seminars

Jail and Prisoner Legal Issues
Jan. 11-13, 2010 – Las Vegas

Lethal and Less Lethal Force
Mar. 08-10, 2010 & Oct. 11-13, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

Click here for more information about all AELE Seminars


   Resources

     Article: "Pole Cameras and Surreptitious Surveillance" By M. Wesley Clark, FBI Law Enforcement Bulletin (Nov.2009). "Affixing a camera to a utility pole can be an effective surveillance technique, especially in circumstances where physical surveillance is operationally impractical."

     Internet Crime: Internet Crimes Against Children: A Matrix and Summary of Major Federal and Select State Case Law, NIJ-Sponsored, October 2009, NCJ 228814.

     Sex Offenders: Juveniles Who Commit Sex Offenses Against Minors This Office of Juvenile Justice and Delinquency Prevention bulletin presents population-based epidemiological information about the characteristics of juvenile offenders who commit sex offenses against minors. Data is analyzed from the FBI’s National Incident-Based Reporting System to describe the characteristics of the juvenile sex offender population who have come to the attention of law enforcement. (NCJ 227763) (Dec.2009).

     Supreme Court Case Review: "Supreme Court Cases 2008-2009 Term" By Lisa A. Baker, FBI Law Enforcement Bulletin (Oct.2009)."A number of Supreme Court decisions of particular importance to law enforcement are summarized."

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

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

Cross References
False Arrest/Imprisonment: No Warrant -- See also, First Amendment (2nd case)
False Arrest/Imprisonment: Warrant -- -- See also, Search and Seizure: Search Warrants
Family Relationships --See also, Domestic Violence and Child Abuse (1st case)
Firearms Related: Intentional Use -- See also, Defenses: Qualified Immunity
Firearms Related: Intentional Use -- See also, Dogs
First Amendment -- See also, False Arrest/Imprisonment: No Warrant (2nd case)
Homeless Persons -- See also, Public Protection: Crime Victims
Search and Seizure: Home/Business -- See also, Search and Seizure: Search Warrants

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