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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 May (web edit.)
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This publication highlighted 356 cases or items in 2009.
This issue contains 25 cases or items in 16 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Civil Liability and:
Affidavits for Search Warrants -- Part 2
2010 (5) AELE Mo. L. J. 101

Digest Topics
 Assault and Battery: Flash-Bang Devices
Assault and Battery: Handcuffing (2 cases)
Assault and Battery: Physical (2 cases)
Assault and Battery: Stun Guns/Tasers
Domestic Violence and Child Abuse
False Arrest/Imprisonment: No Warrant (4 cases)
Firearms Related: Intentional Use
Firearms Related: Licenses, Regulations & Other Issues
First Amendment (3 cases)
Gang Activity
Interrogation (2 cases)
Malicious Prosecution
Off Duty/Color of Law: Assault and Battery
Search and Seizure: Home/Business
Search and Seizure: Search Warrants
Youth Curfews (2 cases)

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
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: Flash-Bang Devices

     Officers were not entitled to qualified immunity in a lawsuit over their shooting and killing of a man. They deployed tear gas into his apartment in an attempt to extricate him from the unit where he had isolated himself threatening to commit suicide. After he still refused to come out, the officers used additional tear gas and flash bang grenades to enter the apartment, setting fire to the exterior room before throwing the flash bang grenades into the darkened bedroom inches from his head and rendering him blind and deaf before shooting him to death. The appeals court ruled that it could be found that the excessive use of tear gas and flash-bang grenades in this manner against a "non-threatening, non-violent, non-resisting individual" violated clearly established rights. Estate of Escobedo v. Bender, #08-2365, 2010 U.S. App. Lexis 7016 (7th Cir.).

Assault and Battery: Handcuffing

     While claims that officers illegally entered an arrestee's home, tampered with evidence, and illegally interrogated him for ten hours were rejected, as an award of damages on them would imply the invalidity of his conviction, which had not been set aside, he could still pursue an excessive force claim against officers based on the manner of his handcuffing during questioning. A finding that the force used in doing so was excessive would not necessarily imply the invalidity of the plaintiff's conviction, since no such claim was made in his motion to suppress evidence in his criminal trial, so the issue was not previously litigated. Flood v. Schaefer, #09-1390, 2010 U.S. App. Lexis 4566 (Unpub. 3rd Cir.).

     A police officer was not entitled to qualified immunity from liability for excessive force after entering a suspect's home, since it was clearly established that hitting a "neutralized suspect" who is handcuffed is objectively unreasonable. The officer acted reasonably, however, in entering the home when he was responding to a 911 call from the man's neighbor reporting that he was yelling at his daughter, and that the daughter might be "getting beat." The officer encountered the father as a man irate and out of control, shouting profanities at him when he merely tried to determine whether the daughter was ok. Schreiber v. Moe, #09-1337 2010 U.S. App. Lexis 4537 (6th Cir.).

Assault and Battery: Physical

     Because the arrestee had been convicted of charges of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with the defendant officer, his convictions barred his civil rights lawsuit against the officer for excessive use of force arising from the same incident. Brown v. Chicago, #08-4265, 2010 U.S. App. Lexis 6483 (7th Cir.).

     An arrestee's convictions for resisting arrest and obstruction did not bar her excessive force claims against her arresting officer as she could have theoretically still proven that the officer's force utilized in making the arrest was excessive without undermining the rationale for her conviction. As it turned out, however, the evidence showed that the officer's use of force was justified by the plaintiff's actions. Miller v. Village of Pinckney, #09-1096, 2010 U.S. App. Lexis 3168 (Unpub. 6th Cir.).

Assault and Battery: Stun Guns/Tasers

     Officers were granted qualified immunity in a lawsuit claiming that they used excessive force when they applied a Taser three times to a woman to complete her arrest. There was probable cause for the arrest, given the plaintiff's refusal to sign a notice concerning her speeding violation, and the officers' use of the Taser in drive-stun mode, while it may have been painful, was temporary and localized, and did not cause incapacitating muscle contractions or significant lasting injury. The trial court's statement that the officers had "numerous other means" of removing the plaintiff other than the use of the Taser amounted to improper after-the-fact speculation, and failed to specify what other steps officers could have actually taken at the time when they needed to get the resisting motorist out of her vehicle to arrest her. Brooks v. Seattle, #08-35526, 2010 U.S. App. Lexis 6293 (9th Cir.).

Domestic Violence and Child Abuse

     A New York mother claimed that city employees had violated her rights and the rights of her infant child in taking actions accusing her of child abuse. Rejecting these claims, despite the fact that the child abuse allegations were subsequently withdrawn, a federal appeals court found that a diagnosis of shaken baby syndrome by two doctors provided investigating personnel with adequate probable cause to initiate both custody removal and child abuse proceedings. Even if the personnel involved had been aware of one doctor's alleged reputation, which included accusations that he overdiagnosed child abuse, it still would not have made it unreasonable for them to rely on her diagnosis in taking these steps. V.S. v. Muhammad, #08-5157, 2010 U.S. App. Lexis 3017 (2nd Cir.).

False Arrest/Imprisonment: No Warrant

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

     After a couple's three-year-old daughter was kidnapped, sexually assaulted, and murdered, the father was allegedly framed by police detectives for the crime, and coerced until he agreed to a "confession" that the detectives had concocted, arresting him and causing him to be jailed and face a possible death penalty on a charge of first degree murder. Charges against him were eventually dropped eight months later on the basis of DNA testing that excluded him as the source of the DNA found on his daughter's body. No one else has been accused of the crime. A jury returned awards for the father and his wife on claims of violation of due process, false arrest, malicious prosecution, emotional distress, and punitive damages, as well as the wife's loss of consortium. A total of $9.3 million was awarded to the father and $6.2 million to his wife. A federal appeals court, while generally upholding the awards to the plaintiffs, ordered either a reduction of damages to a total of $8,166,000 or to $8 million and a new trial on the false arrest and emotional distress claims, at the election of the plaintiffs. Fox v. Hayes, #08-3736, 2010 U.S. App. Lexis 7154 (7th Cir.).

     When it was undisputed that a deputy had asked the plaintiff for his driver's license and proof of insurance, and that he had replied that he had neither, the officer had probable cause to arrest him for violations of Texas state law, so that there was no merit to the plaintiff's assertion that his arrest was somehow unlawful. Unger v. Taylor, #08-40755, 2010 U.S. App. Lexis 4349 (Unpub. 5th Cir).

     Officers arrested a man after a crime victim identified him as the roofer he had hired to fix hurricane damage to his roof, who had allegedly then victimized him. Charges were dropped when it was determined that the arrestee was misidentified. The defendant officers were entitled to summary judgment in the arrestee's civil rights lawsuit when there was no evidence that they had any reason to believe that anyone else other than the arrestee had committed the crime, given the victim's statements. The officers were therefore entitled to qualified immunity. Rushing v. Parker, #09-12637, 2010 U.S. App. Lexis 5450 (11th Cir.).

     A police officer, acting on a request by a mall owner, arrested the plaintiff when he refused, at the mall, to either remove a shirt displaying a political statement or leave the premises. The arrestee claimed that this violated his First and Fourth Amendment rights. The involvement of a police officer to enforce the rights of a private property owner to oust someone who did not comply with a request such as the removal of a shirt with a political statement did not make it the action of the town in attempting to suppress the political statement. Since the arrestee was repeatedly asked by the mall to either remove the shirt and its message or leave the premises, he was properly arrested when he refused to do so. Downs v. Town of Guilderland, #507428, 2010 N.Y. App. Div. Lexis 1419 (3rd Dept. A.D.).

Firearms Related: Intentional Use

     A federal appeals court could not decide officers' appeal of the denial of qualified immunity to them in a lawsuit claiming they improperly shot and killed a suspect when there were disputed factual issues as to whether the domestic violence suspect was then grappling to gain control of an officer's gun, so that he was shot in an act of necessary self-defense, or was instead then lying on the ground on his back or his stomach, and not threatening the officers. Felder v. King, #09-1814, 2010 U.S. App. Lexis 6179 (8th Cir.).

Firearms Related: Licenses, Regulations & Other Issues

     Whether or not state officials were authorized under Connecticut state law to inquire into an applicant's citizenship or legal residence when deciding whether to grant him renewal of a firearms permit, demanding proof of citizenship or legal residence in connection with such renewals was not so outrageous or shocking as to constitute a violation of constitutional due process. The plaintiff did, however, state a procedural due process claim based on the alleged months-long delay in processing such renewal applications. Kuck v. Danaher, #08-5368, 2010 U.S. App. Lexis 5899 (2nd Cir.).

First Amendment

     Protest demonstrators claimed that a police chief, a deputy chief, a captain, a major, and the police department violated their First Amendment rights by directing officers to disperse and "herd" them despite the peaceful nature of their actions, using batons to beat them, as well as spraying pepper spray, and discharging bean bags, pepper spray balls, tear gas, and other projectiles, causing them injuries. If the facts were as the plaintiffs alleged, they sufficiently stated claims for supervisory liability against all of the individual defendants except the major, who lacked authority to either give or rescind orders to officers. The alleged conduct violated clearly established First Amendment rights. Keating v. City of Miami, #09-10939, 2010 U.S. App. Lexis 4268 (11th Cir.).

     Whether or not the Los Angeles airport was a public forum, a city ordinance prohibiting the solicitation of funds for immediate receipt there was a reasonable content neutral time, place, and manner regulation of arguably protected speech. The airport had a legitimate interest in preventing undue interference with travelers by solicitors seeking to immediately receive cash donations. The plaintiff religious organization had adequate alternative means of spreading their message and soliciting funds, since it was allowed to distribute literature and speak to travelers who wished to listen, and could even seek financial donations without violating the ordinance, so long as it didn't ask for the immediate receipt of funds, but instead distributed self addressed stamped envelopes seeking such donations in areas of the airport open to the public. International Society for Krishna Consciousness of Calif. v. Los Angeles, #S164272, 2010 Cal. Lexis 2063.

     In a case allegedly involving "sexting" by underage girls, the sending of nude or provocative sexually oriented photographs of oneself to others via cell phones or the Internet, a federal appeals court enjoined the prosecution of the plaintiffs, based on a claim that the threatened prosecution on felony child pornography charges was in unlawful retaliation for the plaintiffs' exercise of their First Amendment rights in refusing to attend an educational meeting on the subject in order to avoid prosecution. In at least one instance, a parent argued that the photograph sent by her daughter was not child pornography, since it involved no nudity, while a prosecutor took the position that it was child pornography because it was posed in a provocative manner. Coercing attendance to such educational meetings by threats of prosecution, the court stated, could violate parents' rights to parental autonomy under the Fourteenth Amendment (including deciding what lessons concerning morality and gender roles to give their children), and their children's First Amendment rights against compelled speech. Miller v. Mitchell, #09-2144, 2010 U.S. App. Lexis 5501 (3rd Cir.).

Gang Activity

     A number of individuals, named as active gang members in a court proceeding to enjoin public nuisance gang activity, appealed from an injunctive order barring specified gang activities in a designated area. The court found sufficient evidence had been presented to establish the existence of a criminal street gang, and the need for an injunction. The appeals court upheld portions of the injunctive order that prohibited public association of gang members with each other, trespassing, and curfew violations. Restrictions on controlled substances and alcohol in the order, however, were vague and could not be enforced because it was not clearly stated whether gang members were allowed to enter pharmacies and bars. People ex rel. Reisig v. Acuna, #C059375, 2010 Cal. App. Lexis 301 (3rd Dist.).

Interrogation

     The U.S. Supreme Court ruled that prosecutors could use the confession of a child molester who invoked his right to counsel and to remain silent when initially questioned, but who subsequently admitted to the crime three years later. A request for a lawyer can only bar further questioning by police, the Court stated, for a maximum period of 14 days. Maryland v. Shatzer, 130 S. Ct. 1213 (2010).

     The U.S. Supreme Court has held that while Miranda warnings concerning the right to remain silent and to have a lawyer must be given to all suspects prior to custodial interrogation, the warnings need not use the exact same language in all instances, but can vary the exact phrases used so long as the substance includes the four warnings required by Miranda. A suspect "must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." The language in which these four warnings are conveyed, however, may be varied. Florida v. Powell, 130 S. Ct. 1195 (2010).

Malicious Prosecution

     A juvenile claimed that a number of defendants violated his Fourth and Fourteenth Amendment rights by beginning juvenile proceedings against him and summoning him to court. For purposes of federal civil rights claims, it is not sufficient to assert that you are prosecuted without probable cause or summoned in order to impose liability. A court summons, the court noted, is not a seizure for purposes of the Fourth Amendment, and there is "no constitutional right not to be prosecuted without probable cause." The court's ruling, it hastened to add, "should not be misconstrued to deny any rights to parties whom prosecutors or other officials falsely accuse by way of fabricating evidence, withholding exculpatory evidence, tampering with witnesses, or committing any other independent constitutional violation," none of which the plaintiff alleged. "Nor should it be misconstrued to deny any rights to parties unlike Tully who have been wrongfully jailed or imprisoned." Tully v. Barada, #09-3237, 2010 U.S. App. Lexis 5494 (7th Cir.).

Off Duty/Color of Law: Assault and Battery

     A bar customer sued off-duty officers who allegedly assaulted him or assisted assaulting him on the premises, other bystander officers who allegedly improperly failed to intervene, and the city that employed the officers. There were no facts suggesting, for purposes of federal civil rights claims, that the off-duty officers abused or misused their official powers, as they were there off-duty drinking, were not in uniform, did not use departmental weapons, and did not assert police authority. There was no constitutional duty for the bystander officers to prevent the alleged assaults by the off-duty officers, so the claims against them failed also. Since no constitutional violations were proven, the city also could not be held liable. Bustos v. Martini Club Incorporated, #09-50079, 2010 U.S. App. Lexis 4739 (5th Cir.).

Search and Seizure: Home/Business

     After officers arrested a man, they claimed that the fact that they found house keys on his person during a search incident to the arrest justified them in conducting a non-consensual, warrantless search of the house, which the keys unlocked. A federal appeals court found this argument to be utterly without merit, so that if the facts were as the plaintiff asserted, the officers were not entitled to qualified immunity on a claim for illegal search. The arrest warrant, issued by another state, Georgia, authorized their arrest of the plaintiff, but did not provide them with any basis to search his home. Quint v. Village of Deerfield, #09-2508, 2010 U.S. App. Lexis 4184 (Unpub. 7th Cir.).

Search and Seizure: Search Warrants

     Plaintiffs whose home was searched pursuant to a warrant argued that the warrant was improperly obtained, that it lacked particularity, and that chukka sticks seized during the search were not covered by the plain view principle. The appeals court rejected these arguments, finding that the warrant provided the basis for a search of the entire premises for cocaine, cash, drug paraphernalia, books, and records. These materials could have been contained in a coat closet, so that the chukka sticks were properly found there. Since possession of chukka sticks is unlawful under N.Y. law, they were correctly seized when observed in plain view, leading to the plaintiffs' arrest. Sostre v. County of Suffolk, #09-1835, 2010 U.S. App. Lexis 2433 (Unpub. 2nd Cir.)

Youth Curfews

     The highest court in Massachusetts has struck down a local ordinance making it a crime for minors under age 17 to violate a curfew. The court ruled that the criminal penalties minors faced for violating the ordinance, including arrest and possible commitment to state custody were too broad to be constitutionally permissible, even if the city had intended to serve legitimate public safety goals by promoting a youth curfew. "The criminal processes and punishments provided in the ordinance contradict well-established goals of rehabilitating, not incarcerating, juvenile offenders,'' the court stated, while leaving untouched civil penalties in the ordinance for curfew violators. The curfew requires minors to be home during the hours of 11 p.m. to 5 a.m., with some stated exceptions for certain activities. The civil penalty is a $50 fine and the sending of a notice to a parent or guardian. Commonwealth v. Weston W., #SJC-10299, 455 Mass. 24; 913 N.E.2d 832 (2009).

     A California city's youth curfew was overly broad and improperly prohibited otherwise "innocent and legal" conduct by minors even when they had parental permission to engage in activities after curfew. A California intermediate appeals court therefore ruled that it violated the equal protection provisions of the U.S. and California constitutions. While the curfew ordinance included exemptions for official school, religious, and other recreational activities, it did not allow minors to travel to and from such activities after 10 p.m. unaccompanied by an adult, even with parental permission. Also, a stated protection in the ordinance for minors engaged in protected First Amendment activities was "hollow," the court found, since it did not allow minors to travel to or from such activities without an adult present. The court also took issue with the ordinance failing to have a "going to" or "coming from" exceptions to permit minors to go safely from one curfew exempt location to another. In re A. G.,#D053991, 2010 Cal. App. Lexis 132 (4th Dist.).

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AELE Seminars

Lethal and Less Lethal Force
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

      Excited Delirium: Excited Delirium, Restraints, and Unexpected Death: A Review of Pathogenesis Mohammad Otahbachi, MD; Cihan Cevik, MD; Satish Bagdure, MPH, MBBS; Kenneth Nugent, MD, The American Journal of Forensic Medicine and Pathology, Lippincott, Williams & Wilkins - 25 February 2010.

     Firearms: Firearms Digest. The Harvard School of Public Health recently launched a new online firearms digest that compiles and summarizes research findings on firearms and gun violence. This new source is ideal for law enforcement; using topical searches under headings such as domestic violence, homicide, and crime, law enforcement can now easily incorporate research findings in the development of best practices and prevention strategies with respect to firearms violence. The Firearms Research Digest, funded by The Joyce Foundation, features clear summaries of research published in academic journals and links to the actual studies. This searchable database currently covers six years of research, from 2003 to 2009, and is being expanded to include articles dating back to 1988.

    Racial Profiling: New York Police Dept. 2009 Stop, Question and Frisk Data. On February 16, 2010, the New York Police Department released data for 2009 showing a ten percent rise in the number of New Yorkers being stopped by police. A total of 575,304 individuals were stopped, and 87 percent were Black and Hispanic. Of these stops, only 1.3 percent resulted in discovery of a weapon, and 6 percent resulted in arrests. Under the state's stop, question and frisk policy, police officers are authorized to stop, question and possibly frisk an individual they reasonably believe is about to commit, is committing or has committed a crime. Personal information is collected on a UF-250 form, which requires an officer to document an individual's name, address, age, gender, race and physical description. Prior data may be found at New York Police Dept. 2005-2008 Stop, Question and Frisk Data.

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

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

Cross References
Firearms Related: Intentional Use -- See also, Assault and Battery: Flash-Bang Devices
First Amendment -- See also, False Arrest/Imprisonment: No Warrant (4th case)
Injunctive Relief -- See also, Gang Activity
Interrogation -- See also, False Arrest/Imprisonment: No Warrant (1st case)
Malicious Prosecution -- See also, False Arrest/Imprisonment: No Warrant (1st case)
Search and Seizure: Home/Business -- See also, Search and Seizure: Search Warrants

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