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

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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 February (web edit.)
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This publication highlighted 356 cases or items in 2009.
This issue contains 25 cases or items in 13 topics.


Monthly Law Journal Article
(PDF Format)
Taser® Electronic Control Devices (ECDs):
An Intermediate Use of Force?
2010 (2) AELE Mo. L. J. 101

Digest Topics
 Assault and Battery: Physical (2 cases)
Assault and Battery: Stun Guns/Tasers (3 cases)
Domestic Violence and Child Abuse (2 cases)
False Arrest/Imprisonment: No Warrant (3 cases)
False Arrest/Imprisonment: Unlawful Detention
False Arrest/Imprisonment: Warrant (2 cases)
Firearms Related: Intentional Use (3 cases)
First Amendment
Governmental Liability: Training (2 cases)
Police Plaintiff: Vehicle Related
Search and Seizure: Home/Business (2 cases)
Search and Seizure: Person (2 cases)
Search and Seizure: Search Warrant


Cross References

AELE Seminars

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


     Some of the case digests do not have a link to the full opinion.

Assault and Battery: Physical

     Police were summoned to a park after a man shot a gun into the air in reaction to an altercation his son became involved in. Officers brought him to the ground and handcuffed him, subsequently placing him in a patrol car. A federal appeals court rejected the arrestee's claim that the officers used excessive force, which resulted in his broken wrist. The officers were entitled to qualified immunity since their actions were objectively reasonable. In the course of making split-second decisions, the officers could reasonably believe that they faced a dangerous situation in light of the arrestee's use of gunfire and his violent resistance to arrest. Provost v. Nissen, #08-31234, 2009 U.S. App. Lexis 25425 (Unpub. 5th Cir.).

     After leaving a club intoxicated, a man and his wife decided to sleep in their truck. The man subsequently resisted an officer's attempt to wake him, and a second officer allegedly helped to drag him out of the truck, delivering a hard knee strike to his thigh while he was handcuffed. A federal appeals court rejected an unlawful detention claim, ruling that the officers acted reasonably in connection with their concern for the safety of the man and his wife. There was a genuine issue of material fact, however, as to whether the force used, specifically the knee strike, was excessive. Summary judgment for the city was properly granted, since liability on the basis of ratification of the officers' conduct could not be imposed as there was no "extreme" factual situation, and there was also no evidence of inadequate training. While the plaintiff pointed to 27 prior complaints concerning alleged officer misconduct, this was insufficient to show a pattern of use of excessive force. Peterson v. City of Fort Worth, Texas, #08-10258, 2009 U.S. App. Lexis 25183 (5th Cir.).

Assault and Battery: Stun Guns/Tasers

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

     An officer allegedly used a Taser without warning against an agitated motorist during a traffic stop, causing him to fall face first onto the ground, fracturing four teeth and suffering facial contusions. In denying the officer summary judgment on the basis of qualified immunity, a federal appeals court held that, if the facts were as alleged by the plaintiff motorist, the force used by the officer was excessive. The court characterized use of the Taser as non-lethal force, but also as an "intermediate or medium, though not insignificant" use of force, requiring justification by a "strong governmental interest" compelling the use of such force, in light of the pain and incapacitation it causes, and the possibility of injury from resulting falls. Construing the facts in a manner most favorable to the plaintiff for the purposes of appeal, the court stated that the motorist was unarmed, did not attempt to flee, and was standing next to his vehicle without advancing in any direction. He was therefore not an immediate threat to the officer, and was not a flight risk. Under those circumstances, if true, there would have been no immediate need to subdue him before additional officers arrived or "less invasive means were attempted." Bryan v. McPherson, #08-55622, 2009 U.S. App. Lexis 28413 (9th Cir.).

      Editor's Note: A more detailed discussion of this case and its possible implications appears in an article in this month's Monthly Law Journal.

      Summary judgment was properly granted to the manufacturer of the Taser used by sheriff's deputies against an arrestee prior to her death, as the plaintiffs failed to show that the use of the Taser caused her death. The deputies acted reasonably in using the Taser against the arrestee because she refused to comply with their orders and engaged in active resistance to a lawful arrest. Additionally, there was a lack of evidence that the deputies should have known that the arrestee's behavior indicated a serious disease rather than constituting a temporary response to her known use of methamphetamine. There was no evidence that the deputies knew that the failure to provide prompt medical treatment would lead to her death. In particular, the court stated, the deputies "had no knowledge of the medical condition called 'excited delirium' or its accompanying risk of death. Mann v. Taser International, Inc., #08-16951, 2009 U.S. App. Lexis 26155 (11th Cir.).

      Editor's Note: In a footnote to the opinion, the court discusses "excited delirium":

     A father sued a city and one of its officers for his son's death after a traffic stop during which he was arrested for traffic and drug offenses. As to an excessive force claim, the court ruled that whatever the answer was on the question of whether compelling compliance alone could be a constitutional basis for using a Taser on a fully secured arrestee, the son had not had a clearly established right not to be subjected to the Taser on that basis, so the officer was entitled to qualified immunity. On a claim that the officer had been deliberately indifferent to the son's serious medical needs, the court ruled that it was insufficient to merely show that the officer was aware that the arrestee had taken drugs or was drug intoxicated. To impose liability for the death, the father had to show that the officer knew that the drug use would cause a serious medical need, and the plaintiff failed to meet that burden. Sanders v. City of Dothan, #1:07-cv-008, 2009 U.S. Dist. Lexis 110803 (M.D. Ala.).

Domestic Violence and Child Abuse

     State social workers were properly granted qualified immunity for taking custody of the plaintiff's children. The right of parents and children to live together without interference is limited by a governmental need to investigate serious abuse claims. In this case, there was good cause for the defendants to believe that parental sexual abuse had taken place, and under such circumstances, they did not need a court order to remove the children to protect them against what they believed was an imminent danger of serious bodily injury. As for claims concerning the defendants' subsequent filing of a custody petition and alleged falsification of evidence in connection with it, they were entitled to absolute immunity. Haldeman v. Golden, #08-15648, 2009 U.S. App. Lexis 25610 (Unpub. 9th Cir).

    Attorney employees of a city's child welfare agency were entitled to absolute prosecutorial immunity for actions taken in connection with an investigation into the death of the plaintiff's infant son, since their function was similar to that of a prosecutor. Caseworkers involved in the case, however, acted more like investigators than prosecutors, so they could assert, at most, qualified immunity defenses, and were not entitled to absolute immunity from liability. Cornejo v. Bell, No. 08-3069 2010 U.S. App. Lexis 38 (2nd Cir.).

False Arrest/Imprisonment: No Warrant

     A police officer who went to a woman's home to respond to a domestic violence complaint concerning her boyfriend, who had fled, was justified in arresting her for violating a state child endangerment statute, based on her observations of the condition of the apartment, including her concerns that the woman's son could hurt himself by picking up the razor blades that were on the floor, ingesting the cigarette butts on the floor, being attacked by the pit bull in the kitchen, or drowning in the sewage that was in the bathtub. Herrera v. City of Albuquerque, #09-2010, 2009 U.S. App. Lexis 27104 (10th Cir.).

     In the absence of exigent circumstances, an officer may not make a warrantless and non-consensual entry into a home to arrest a routine felony suspect, and interpreting a Texas statute to allow such arrests would not be objectively reasonable, so that a police officer was not entitled to qualified immunity on unlawful arrest and unlawful entry and search claims. Denton v. Rievley, #08-6406, 2009 U.S. App. Lexis 24912 (Unpub. 6th Cir.).

     A canine control officer, who issued a summons to the plaintiff after receiving complaints about his dog, did not violate his Fourth Amendment rights, since a pre-arraignment, non-felony, summons mandating a subsequent court appearance was not a "seizure." Burg v. Gosselin, #09-0708, 2010 U.S. App. Lexis 289 (2nd Cir.).

False Arrest/Imprisonment: Unlawful Detention

    The sister and brother-in-law of a man shot and killed by police claimed that officers violated their rights by detaining the brother-in-law. The plaintiffs lacked standing to assert any claims based on the officers' conduct towards the decedent, the court ruled. The defendants argued that the brother-in-law was properly detained based on probable cause to believe that he was interfering with an officer's performance of his duties in the garage where the shooting took place, and subsequently had justification to keep detaining him at the police station due to probable cause to believe that he had assaulted an officer. The officers also claimed that both plaintiffs were properly detained as material witnesses to the shooting. While their detention for eleven hours exceeded brief detentions that were found by other courts to be justified on that basis, the court in this case found that exceptional circumstances and the sequence of events justified the length of the detentions in this case. Golla v. City of Bossier City, #06-2298, 2009 U.S. Dist. Lexis 116863 (W.D. La.).

False Arrest/Imprisonment: Warrant

     An arrestee claimed that an affidavit used to obtain a warrant for his arrest contained misrepresentations concerning the nature of the findings of a special master in a child custody case. The appeals court found, however, from the plain language of a Florida court's decision in the child custody case that his wife had been made the primary residential parent because of his parental unfitness and drug use, and that he was required, under the terms of the decision to return his children to Florida. While it subsequently became known that the Florida court's order was invalidated due to the plaintiff's objections, this was not known from the records available at the time the warrant was obtained, and there was no evidence that the investigator who obtained the warrant had any reason to doubt the statements he made in his warrant application, so he was entitled to qualified immunity. Barton v. Curtis, #08-4905, 2009 U.S. App. Lexis 26754 (Unpub. 3rd Cir.).

     A man was arrested in Texas pursuant to an arrest warrant issued in Wisconsin, and he presented no evidence of any reason that Texas law enforcement personnel should have doubted the validity of the warrant, defeating his false arrest claims. His denial of speedy trial claim was defeated by the fact that he was convicted of possessing child pornography, and his conviction has not been overturned on appeal or otherwise set aside. Krause v. Leonard, #09-40273, 2009 U.S. App. Lexis 24387 (Unpub. 5th Cir.).

Firearms Related: Intentional Use

     A man claimed that an officer shot and injured him when he was unarmed and speaking to a 911operator on his cell phone. He also claimed that the officer failed to order him to halt or drop his "weapon," and that, at the time, the person sought for an assault had already been caught. The officer contended that the plaintiff appeared to be holding a small revolver instead of a cell phone, and failed to respond to repeated orders to drop it. Because of disputed factual issues, the officer was not entitled to summary judgment, and if the facts were as the plaintiff alleged, the officer could be found to have used excessive force. Giardina v. Lawrence, #09-30437, 2009 U.S. App. Lexis 26649 (Unpub.5th Cir.).

     After the defendants had admitted liability for the wrongful death of a woman's son, shooting and killing him while arresting another person, a jury awarded $12.5 million in damages following a trial that was supposed to be limited to the issue of damages. The manner of death and the question of whether or not the officer, in firing, had acted willfully and wantonly were immaterial to assessment of damages, so that an instruction on willful and wanton conduct was confusing and improperly given, and repeated comments by the plaintiff's lawyer asking the jury to "examine willful and wanton admitted conduct" were not based on the evidence, but were instead appeals to prejudice and emotion. A new trial on damages was therefore required. Pleasance v. City of Chicago, #1-08-1510, 2009 Ill. App. Lexis 1230 (1st Dist.).

     When the arrestee had engaged in what both he and the officer described as a life and death struggle, the officer did not use excessive force in shooting him. The arrestee had placed his own gun to the officer's head and said he would kill him. While the arrestee claimed he had become unarmed before the shooting, there was no indication that the officer knew that he had lost control of his weapon. The arrestee had exited his vehicle late at night in a secluded area displaying a gun, and the officer reasonably feared that he was armed and dangerous. A reasonable jury could not find that the officer's use of force was excessive. Jones v. Mullins Police Dept., #08-6256, 2009 U.S. App. Lexis 26906 (Unpub. 4th Cir.).

First Amendment

     A city was properly granted summary judgment in a lawsuit claiming that its officers wrongfully interfered with anti-abortion demonstrators. The court found no evidence that there was a widespread and persistent practice of using inapplicable statutes against demonstrators to violate their free speech rights because of the content of their signs. World Wide Street Preachers Fellowship v. Columbia, #08-31196, 2009 U.S. App. Lexis 27993 (5th Cir.).

Governmental Liability: Training

     An arrestee claimed that a sheriff failed to provide necessary training to the officers under his supervision in the use of photographic lineups, and that this resulted in a confidential informant identifying him as a person who sold him drugs. Evidence showed, however, only three mistaken identifications out of hundreds made by this informant, illustrating an error rate of less than one percent. This was insufficient to show a history of widespread abuse that would have made it obvious that training procedures were needed. Rocker v. City of Ocala, Florida, #09-13827, 2009 U.S. App. Lexis 26423 (Unpub. 11th Cir.).

     Deputies pursuing two felony car burglary suspects encountered a property owner, armed, on his own property, and shot at him. In a lawsuit by the property owner, the sheriff failed to offer any evidence concerning how officers were trained on the proper use of deadly force, and admitted that the decision to use firearms was completely up to the deputies. The need to train officers in the proper use of deadly force is so obvious that the failure to do so can be characterized as deliberate indifference to constitutional rights. Deliberate indifference could also be found in the sheriff's failure to provide proper supervision and training for K-9 teams. The sheriff was denied summary judgment. Swofford v. Eslinger, #6:08-cv-00066, 2009 U.S. Dist. Lexis 111121 (M.D. Fla.).

Police Plaintiff: Vehicle Related

     A sheriff making a U-turn to pursue a speeding car was struck by another motorist's vehicle. In a lawsuit by the sheriff against the motorist for his resulting injuries, the court ruled that the sheriff, as a plaintiff, could not use a statute providing a legal standard of "reckless disregard" for the liability of an emergency vehicle operator as a "shield" against a comparative negligence defense by the motorist. The reckless disregard standard only applies when the driver of an emergency vehicle is sued or counter sued. Ayers v O'Brien, #204, 2009 N.Y. Lexis 4483

Search and Seizure: Home/Business

     Because there was a genuine issue of fact as to whether animal cruelty proceedings against the plaintiff were civil or criminal in nature, officers were not entitled to summary judgment in a lawsuit alleging an unlawful warrantless search of her property and seizure of her 47 dogs and cats. Officials feared for the safety of the animals after hearing a false rumor that she had been placed in a mental health care facility. Animal cruelty charges against the plaintiff were dropped, and she agreed to pay some of the county's costs and submit to periodic inspections. If the proceedings were civil in nature, the plaintiff's civil rights lawsuit would not be barred under Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994) by the result in the prior case. The court also found that a prosecutor was not entitled to absolute prosecutorial immunity for her actions in allegedly entering the plaintiff's property, assessing the condition of the animals, providing legal advice to the officers, and participating in the seizure of her animals. Hoog-Watson v. Guadalupe City, #08-50077, 2009 U.S. App. Lexis 27639 (5th Cir.).

     Officers did not violate the rights of apartment renters in searching their home and detaining them during the search. The homeowners were suspected of drug trafficking, and the officers obtained a search warrant that covered a house and the detached garage which contained the garage apartment in which the renters resided. The officers, after entering, observed marijuana in plain view, and the officers reasonably suspected that the homeowners might be using the garage apartment to use and store drugs. Harman v. Pollock, #08-4068, 2009 U.S. App. Lexis 25394 (10th Cir.).

Search and Seizure: Person

     An officer was justified in making an investigatory stop of an attorney in front of a courthouse, which resulted in the seizure of a handgun that the attorney was observed carrying in a holster. The several minute delay that the officer's actions caused was justified by the attempt to verify the validity of the attorney's gun license, and he was then released, and told that he could later retrieve the gun and his gun license from the police department. Schubert v. City of Springfield, #09-1370, 2009 U.S. App. Lexis 28251 (1st Cir.).

     A city police department policy mandating that a breathalyzer test be given to every officer who causes injury or death by firing a weapon fell under the "special needs" doctrine of the Fourth Amendment, so that the trial court properly declined to enjoin its enforcement as unconstitutional. Based on the evidence to date in the case, the policy seems to be reasonable, and the fact that crime control was a purpose, but not the primary purpose, of the policy did not alter the result. The court found that "the breathalyzer program qualifies as 'governmental action taken in the public interest,' because it was designed, among other things, to discourage officers from using their firearms while intoxicated—which is plainly a matter of public concern." Lynch v. N.Y., #08-5250, 2009 U.S. App. Lexis 26980 (2nd Cir.).

Search and Seizure: Search Warrant

    Although an affidavit for a search warrant had two possibly deceptive misrepresentations, they were not "critical" for a finding of probable cause. An identification of the wife in the home in connection with a murder was sufficiently reliable and established probable cause. Additionally, there was no requirement that the affidavit establish probable cause to arrest her for the murder. It was sufficient that it established probable cause for the search. The officers were also entitled to qualified immunity for the subsequent arrests, since they relied, in good faith, on legal advice from a prosecutor in making the arrests of the residents of the home. Anonymous tips received, which claimed that someone else had committed the murder, were insufficient to eliminate probable cause. Ewing v. City of Stockton, #08-15732, 2009 U.S. App. Lexis 26799 (9th Cir.).

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AELE Seminars

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


     Juveniles: Juvenile Arrests 2008 (NCJ 228479) December 2009 Bulletin, 12 page(s). Summarizes 2008 juvenile crime and arrest data reported by local law enforcement agencies across the country and cited in the FBI report Crime in the United States 2008. Overall, there were 3 percent fewer juvenile arrests in 2008 than in 2007 and juvenile violent crime arrests fell 2 percent, continuing a recent decline. One area that merits continued attention is the persistently disproportionate rate of minority contact with the juvenile justice system. The arrest rate for robbery in 2008, for example, was 10 times higher for black youth than for white youth.

    School Violence: The Office of Justice Programs' Bureau of Justice Assistance (BJA), in coordination with the International Association of Chiefs of Police, has published a new edition of its "Guide for Preventing and Responding to School Violence." Designed to assist local communities, the guide describes the roles of the school, community, families, law enforcement, and justice system in working together to take effective action to address school violence.

    Statistics: The U.S. Bureau of Justice Statistics has launched a new Web site. It can be found at

    SWAT: Independent Board of Inquiry into the Oakland Police Department March 21, 2009 Incident. A Public Report of Findings and Recommendations. (Dec. 2009). A report that is critical of command decisions to "prematurely" have a SWAT team enter an apartment where an armed parolee was present following his shooting and killing two motorcycle officers who subjected him to a traffic stop. The offender subsequently shot and killed two SWAT officers before being killed himself.

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

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

Cross References
Damages: Compensatory -- See also, Firearms Related: Intentional Use (2nd case)
Defenses: Absolute Immunity -- See also, Domestic Violence and Child Abuse (both cases)
Domestic Violence and Child Abuse -- See also, False Arrest/Imprisonment: No Warrant (1st case)
False Arrest/Imprisonment: No Warrant -- See also, Search and Seizure: Search Warrant
Firearms Related: Intentional Use -- See also, Governmental Liability: Training (2nd case)
Governmental Liability: Training -- See also, Assault and Battery: Physical (2nd case)
Search and Seizure: Home/Business -- See also, False Arrest/Imprisonment: No Warrant (2nd case)

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