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Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force

Oct. 10-12, 2011 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2011 LR Apr (web edit.)
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This publication highlighted 300 cases or items in 2010.
This issue contains 25 cases or items in 19 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Attorneys' Fees in Federal Civil Rights Lawsuits:
An Introduction - Part One
2011 (4) AELE Mo. L. J. 101

Digest Topics
 Defamation
Defenses: Collateral Estoppel
Defenses: Qualified Immunity
Domestic Violence and Child Abuse
DNA
False Arrest/Imprisonment: No Warrant (2 cases)
Federal Tort Claims Act
Firearms Related: Intentional Use
First Amendment (3 cases)
Interrogation (2 cases)
Landlord-Tenant Issues
Malicious Prosecution (2 cases)
Negligence: Dead Body Identification/Handling
Negligence: Vehicle Related (2 cases)
Privacy
Procedural: Failure to Prosecute
Search and Seizure: Home/Business
Search and Seizure: Vehicle
Search and Seizure: Warrant

Resources

Cross References


AELE Seminars

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force

Oct. 10-12, 2011 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - 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.

Defamation

     The owner of a local weekly newspaper filed a defamation and First Amendment retaliation lawsuit in federal court claiming that a city mayor took action against him because of his publication of material critical of the town's alleged corruption, fiscal mismanagement, and police brutality. Upholding the dismissal of the lawsuit, a federal appeals court ruled that state law defamation was not actionable in federal court and that the plaintiff had failed to show that the mayor's criticism of him at a campaign event as a "convicted drug dealer," "Albanian mobster," "thug," and person planning to open "drug dens" and "strip clubs" if the mayor was not re-elected, even if false, did not "actually chill" the newspaper's exercise of its rights as required for a First Amendment retaliation claim against a public official. Zherka v. Amicone, #10-37, 2011 U.S. App. Lexis 3944 (2nd Cir.).

Defenses: Collateral Estoppel

     A man prosecuted and convicted of charges of sexual misconduct appealed the dismissal of his lawsuit asserting various claims arising out of his arrest, prosecution, and conviction. Noting that he had pled guilty to the charges in his state criminal case, a federal court ruled that his lawsuit was barred by the defense of collateral estoppel since he neither appealed his conviction nor sought to withdraw his guilty plea. The plaintiff's argument that he was denied a full and fair opportunity to litigate the issue of his guilt because he had incompetent counsel was rejected, with the appeals court noting that he himself had practiced law at a large firm prior to his disbarment, and stated that his plea was being entered voluntarily and knowingly, and that he had committed the offenses for which he was pleading guilty. Additionally, some claims against the prosecutor were barred by absolute prosecutorial immunity. Colliton v. Donnelly, #09-4186, 2010 U.S. App. Lexis 22727 (Unpub. 2nd Cir.).

Defenses: Qualified Immunity

     An officer claimed that he arrested a man for refusing to accept service of a temporary restraining order that his wife had obtained against him, and used appropriate force when the man violently resisted arrest. The plaintiff, however, claimed that the arrest had been in response to his attempt to call 911 to complain about the officer, and that the officer assaulted him. Refusing to overturn the trial court's denial of qualified immunity to the officer, a federal appeals court noted that the officer's arguments that he was entitled to qualified immunity were based on entirely different facts than those asserted by the plaintiff. Zahn v. City of Trenton, #07-4085, 2010 U.S. App. Lexis 16796 (Unpub. 3rd Cir.).

Domestic Violence and Child Abuse

     A man arrested for violating an injunction against "dating violence, which prohibited him from contacting a woman in person or on the phone, or using another person to contact her, claimed that he was arrested and prosecuted without probable cause. Evidence showed, however, that the woman, who was a realtor, received four calls from someone named "Lisa," purporting to be interested in real estate, but that when she returned the calls, she heard the plaintiff's voice saying "Got Her!," along with cheering and laughter, and other evidence of possible violations. Arguable probable cause existed for the obtaining of a capias warrant for the arrest. Because the plaintiff's case was found to be frivolous, the defendants were properly awarded attorneys' fees. Angiolillo v. Collier County, #10-10895, 2010 U.S. App. Lexis 17762 (Unpub. 11th Cir.).

DNA

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

     A man sentenced to death after being convicted of murdering his girlfriend sought to challenge his conviction in Texas state court by seeking DNA testing of various untested evidence from the crime scene, including knives, an axe handle, vaginal swabs, fingernail clippings, and certain hair samples. State courts rejected his plea for DNA testing, finding that he had not made a required showing that he "would not have been convicted if exculpatory results had been obtained through DNA testing."

     He then filed a federal civil rights lawsuit against the prosecutor, seeking injunctive relief requiring the DNA tests. By a 6-3 vote, the U.S, Supreme Court held that claims concerning the right to DNA testing could be asserted not only in habeas corpus proceedings, but also in federal civil rights lawsuits. Success in having the testing done would not necessarily imply the invalidity of the plaintiff's conviction. The Court therefore ordered further proceedings on the merits of the plaintiff's claim that denying him the DNA testing violated his due process rights. . Skinner v. Switzer, #09-9000, 2011 U.S. Lexis 1905.

False Arrest/Imprisonment: No Warrant

     A man convicted of both federal and state charges was believed to be on probation when his probation officer authorized his warrantless arrest for probation violation and a warrantless search for suspected drug possession. The probation period had actually already ended because his sentence had been reduced unbeknownst to the probation department. He filed a federal civil rights lawsuit against various state and county officers, asserting claims arising out of the arrest and search. Upholding qualified immunity for the individual defendants, a federal appeals court found that they could reasonably believe that there were at least arguably sufficient grounds for the arrest and search. McInnis v. State of Maine, #10-1437 2011 U.S. App. Lexis 4384 (1st Cir.).

     An officer had probable cause to arrest a man at a university football game after he failed to comply with several verbal warnings to leave the student disability accessible section in the stadium, which he did not have a ticket for. The appeals court noted that the plaintiff, although an attorney, "remarkably" cited no authority in support of his false arrest claim. His conduct fit the description of criminal trespass under Louisiana state law. The officer's actions were objectively reasonable, the court ruled. Hodge v. East Baton Rouge Parish Sheriff's Office, #10-30018, 2010 U.S. App. Lexis 18703 (Unpub. 5th Cir.).

Federal Tort Claims Act

     Lawsuits filed under the Federal Tort Claims Act against the federal government claiming it was liable for two deaths because of the F.B.I.'s thirty-year "alliance" with a mobster-turned-informant were time-barred under an applicable two-year statute of limitations. The mobster allegedly ordered the decedents' deaths. The plaintiffs had sufficient information to assert their claims more than two years before they did so, based on testimony in a hearing about the federal government's role in the cases, and media reports of the information. Donahue v. U.S., #09-1950, 2011 U.S. App. Lexis 2644 (1st Cir.).

Firearms Related: Intentional Use

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

     Officers shot and killed a suspected car thief during a standoff. Immediately before the shooting, he had been standing with his right hand concealed in his waistband, and he appeared to be concealing an object. When asked to surrender, he allegedly suddenly pulled his hand out of his waistband as though he were drawing a gun. The officers responded by firing 39 shots over 10 seconds, killing him. The object he was holding was a crack pipe. A federal appeals court upheld in part, but also reversed in part summary judgment for the defendant officers. It held that the decedent's abrupt threatening movement justified the initial use of deadly force, but that a jury should have been allowed to decide whether the use of such force became unreasonable before the time that the officers ceased firing when his hand became visible and they could arguably see that the object he was holding was not a gun. Lamont v. New Jersey, #09-1845, 2011 U.S. App. Lexis 4104 (3rd Cir.).

First Amendment

     Rejecting a "street preacher's" claim that an officer's enforcement of a noise control ordinance against him violated his First Amendment rights, a federal appeals court ruled that the ordinance did not substantially burden more speech than needed to serve the city's goal of banning excessive noise. The plaintiff's voice could be heard over 350 feet away, and "dominated" the area, infringing on the right of others to use the neighborhood without such intrusion. Costello v. City of Burlington, #08-0551, 2011 U.S. App. Lexis 2831 (2nd Cir.).

     Two anti-abortion protesters sued a city and various officials, claiming that two ordinances related to public assemblies and picketing violated their free speech rights. The court held that the lawsuit should be dismissed because the plaintiffs could not show that the ordinances caused them an actual injury. The plaintiffs sought a permit to hold a "Roe v. Wade Memorial" event, but were informed that the event planned was viewed by the city as a "demonstration" or picket, and could be held at the park as a matter of right with no permit, so no permit would be issued. The event was held as planned, and no arrests were made. Benham v. City of Charlotte, #10-1132 2011 U.S. App. Lexis 2890 (4th Cir.).

     Utah state authorities gave permission to the Utah Highway Patrol Association to erect a number of 12-foot crosses on public land in memory of fallen troopers who died in the line of duty. An atheist group, joined by other organizations, objected, and filed suit, claiming that this violated the clause of the First Amendment prohibiting an "establishment of religion." A federal appeals court ruled that state employees were improperly granted summary judgment on this claim. While there was a "plausible" secular purpose of honoring the dead troopers, erecting crosses to do so resulted in an unacceptable effect, in that reasonable observers could believe that it meant that the state endorsed a specific religion. American Atheists, Inc. v. Duncan, #08-4061, 2010 U.S. App. Lexis 26936, amended 2010 U.S. App. Lexis 26725 (10th Cir.).

Interrogation

     The U.S. Supreme Court, in a 6-to-2 decision, ruled that statements made to police by a wounded crime victim who died before the trial of the case began may be admitted into evidence without violating the Confrontation Clause of the Sixth Amendment. The statements were made identifying the shooter, the majority concluded, for the primary purpose of enabling the officers to deal with an emergency (the armed man) rather than for the primary purpose of providing evidence of the crime. Michigan v. Bryant, #09-150, 2011 U.S. Lexis 1713.

     Officers who interrogated a suspect played audiotapes implicating him in a number of drug offenses before giving him his Miranda warnings and questioning him. A trial court did not act erroneously in refusing to suppress the defendant's subsequent statements at the police station. Playing the tapes did not constitute interrogation, and the defendant made no statements in response to the tapes prior to receiving and waiving his Miranda rights. U.S. v. Vallar, #07-3641, 2011 U.S. App. Lexis 2839 (7th Cir.).

Landlord-Tenant Issues

     A residential real estate owner sued a county sheriff and a state court judge, claiming that the judge's general order directing the sheriff not to perform any residential tenant evictions during specified winter weeks violated its constitutional rights. A federal appeals court held that federal courts should abstain from interfering with such state court proceedings and that the plaintiff should seek to assert its constitutional claims and a remedy, in appropriate state court proceedings. SKS & Assoc., Inc. v. Dart. #09-3461, 619 F.3d 674 (7th Cir. 2010).

Malicious Prosecution

     There was arguable probable cause to stop a motorist and arrest him for racing, defeating his malicious prosecution claim. An officer testified to having heard the loud motor of the motorist's truck, and seeing the truck and another vehicle accelerate at a high rate of speed from a stop for a short distance. Two other officers, while they did not personally observe this, reasonably relied on the information the first officer provided. The court also rejected the argument that there was no probable cause to arrest the motorist for DUI, given his admission that his had consumed three or four beers before the arrest, and an officer's testimony that he smelled alcohol on his breath, and that he refused to take a required, state-administered chemical test. Burnett v. Unified Government of Athens-Clarke County, Georgia, #10-10324, 2010 U.S. App. Lexis 18505 (Unpub. 11th Cir.).

     A woman claimed that she was maliciously prosecuted for attempted theft of a dog after observing a sickly and skinny dog on the street, lacking a collar or tags, and took it into her car, intending to take it to an animal shelter. Police subsequently acted on a complaint by the dog's owner. The city police department was immune, under Ohio state law, from a malicious prosecution claim, and there was no statute imposing liability for malicious prosecution on the officers when the woman did not assert that they acted outside the scope of their official duties or with malice. There was, under the circumstances, arguable probable cause for the charges against her, so her malicious prosecution claims were frivolous. Attorneys' fees and expenses were therefore awarded to the city and its employees. Slye v. City of London Police Dept., #CA2009-12-027, 2010 Ohio App. Lexis 2337 (12th Dist.).

Negligence: Dead Body Identification/Handling

     A couple sued the county coroner and other defendants, claiming that their due process rights were violated when their son's brain was removed during an autopsy, and subsequently destroyed rather than returned. Noting that state law controls the issue of whether there are property rights in dead bodies and their parts, a federal appeals court found that there are no property rights, under Ohio law, in body parts removed by a coroner during an autopsy conducted for purposes of a criminal investigation. Judgment on the pleadings for the defendants was therefore upheld. Albrecht v. Treon, #09-3703, 617 F.3d 890 (6th Cir. 2010).

Negligence: Vehicle Related

     A road patrol deputy in New York was responding to a radio dispatch concerning a stolen vehicle when he received a second dispatch about a burglary alarm, which he determined was more important to respond to first. He was unable to stop before rear ending a vehicle in front of him when traffic slowed down. He did not have his emergency lights or siren activated. The injured motorist sued for damages. The deputy claimed that a state law applied, making him liable only if he acted with "reckless disregard for the safety of others." The highest court in New York held that this standard only applies when the driver of an emergency vehicle is engaged in specific conduct exempted from the ordinary rules of the road, such as speeding, running a red light, or violating other specified traffic laws while responding to an emergency. Any other conduct by the driver causing an injury is governed by the principles of ordinary negligence, which the court ruled applied in this case. Kabir v. County of Monroe, #28, 2011 N.Y. Lexis 156

     An Indiana intermediate appeals court upheld a jury's award of $750,000 in damages to a motorist injured in a collision with a police vehicle at an intersection. At trial, it was disputed which of the vehicles had the red light, and whether or not the police vehicle had its emergency lights and siren activated. The appeals court rejected arguments that the award was excessive in light of the motorist's injuries of a broken rib, a lung contusion, and a broken shoulder blade. Under a state statute, however, the motorist's recovery was limited to $500,000, and the parties agreed that the plaintiff would not recover more than that amount. Rice v. Osborne, #45A03-0910-CV-463, 2010 Ind. App. Unpub. Lexis 1239.

Privacy

     A failed candidate for State's Attorney sued the incumbent State's Attorney and others, claiming that they violated his Fourth Amendment and due process rights by publically disclosing that he was under investigation by Illinois state agencies for possible violations of tax law, unemployment insurance law, and legal ethics. Upholding the dismissal of the lawsuit, a federal appeals court held that the fact that a candidate for elected office is under investigation for ethical and legal violations is a matter of "substantial public interest." The plaintiff had not included a state law claim under a state statute requiring that such investigations be kept confidential, and the court found no violation of a federal constitutional right to privacy. Wolfe v. Schaefer, #10-1016, 2010 U.S. App. Lexis 18159 (7th Cir.).

Procedural: Failure to Prosecute

     A woman sued the California Highway Patrol and a number of its officers for shooting and killing her husband, claiming excessive use of force. The lawsuit was dismissed with prejudice for failure to prosecute because her attorney failed to meet court deadlines or attend hearings. A federal appeals court rule that the lawyer's "gross negligence" was an "extraordinary circumstance" not attributable to the plaintiff, so that she should be granted relief from the dismissal and have her claim reinstated. When she learned of her attorney's conduct, she hired a new attorney and filed a motion to set aside the dismissal. The court found that the attorney had virtually abandoned his client and also attempted to mislead her about the status of the case. Lal v. State of Calif., #08-15645, 610 F.3d 518 (9th Cir. 2010).

Search and Seizure: Home/Business

     The owners and operators of a gun shop in Los Angeles sued the city, its police department, and a number of individual officers for allegedly conducting an illegal search of the business. After the plaintiffs allegedly purchased illegal firearms from the police during a sting operation, officers obtained search warrants for their business and residence and found illegal firearms and ammunition at both locations. The plaintiffs did not challenge the validity of the warrants at their criminal trial and, as part of a plea bargain, pled guilty to one count of possession of an illegal assault weapon found at their residence. Their subsequent lawsuit for illegal search and seizure was barred, a federal appeals court ruled, as its success would necessarily imply the invalidity of their criminal convictions, which had not been set aside. Szajer v. City of Los Angeles, #08-57010, 2011 U.S. App. Lexis 2796 (9th Cir.).

Search and Seizure: Vehicle

     Following the involvement of a motorist's vehicle in a fatal collision with a pedestrian, the downloading of data from the car's sensing and diagnostic module (SDM), also sometimes referred to as an event data recorder (EDR), violated his Fourth Amendment rights, so that the trial judge erroneously denied a motion to suppress the resulting evidence. The downloading took place a year after the accident, and was not incident to arrest, and was also done without a warrant. The court held that the defendant had a reasonable expectation of privacy in the data. People v. Xinos, #H034305, 2011 Cal. App. Lexis 153, .192 Cal. App. 4th 637 (6th Dist.).

     Editor's Note: While the ruling occurred in the appeal of a criminal case, the principles would appear to also be applicable in a civil rights lawsuit for an illegal search and seizure.

Search and Seizure: Warrant

     A man being prosecuted for armed bank robbery was granted a motion to suppress a sample of his DNA to compare with DNA found in a van believed to have been used by the robber, on the ground that it had been obtained by way of a materially and recklessly false warrant affidavit, in violation of the Fourth Amendment. A paragraph in the affidavit was false, as it misrepresented that police interviews of "various witnesses" had observed a stolen van meeting up with a silver Volkswagen van following the robbery. The officer writing the affidavit had not participated in interviewing the witnesses or read the written witness statements, and did not review the investigation reports in any detail. The officer's drafting of the affidavit went beyond simple negligence into recklessness, as it could be said that he had no evidentiary basis at all for making the statement concerning the van. U.S. v. Brown, #09-3643, 2011 U.S. App. Lexis 1059 (3rd Cir.).

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AELE Seminars

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force

Oct. 10-12, 2011 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

Click here for more information about all AELE Seminars


   Resources

     Crime Victim Resources: The 2011 National Crime Victims' Rights Week (NCVRW) Resource Guide is available online. The guide was developed to help communities promote awareness of crime victim issues; it includes camera-ready art files, public awareness posters, the 2011 theme DVD, and much more. NCVRW will be observed April 10-16, 2011.

     Human Trafficking: In conjunction with National Slavery and Human Trafficking Prevention Month (January 2011), OVC and BJA have released the Anti-Human Trafficking Task Force Strategy and Operations e-Guide. This guide will support the work of multidisciplinary anti-human trafficking task forces around the country.

     Less Lethal Weapons: "Police Use of Force: The Impact of Less-Lethal Weapons and Tactics," by Philip Bulman, NIJ Journal, Issue #267, pg. 4 (Winter 2010). The article discusses less-lethal alternatives like conducted energy devices (e.g., Tasers) in use of force situations. The article reviews the results of an extensive study on the use of Conducted Energy Devices (CEDs) by multiple police departments.

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

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

Cross References
Assault and Battery: Physical -- See also, Defenses: Qualified Immunity
Defenses: Statute of Limitations -- See also, Federal Tort Claims Act
DNA -- See also, Search and Seizure: Warrant
False Arrest/Imprisonment: No Warrant -- See also, Defenses: Collateral Estoppel
False Arrest/Imprisonment: No Warrant -- See also, Defenses: Qualified Immunity
False Arrest/Imprisonment: Warrant -- See also, Domestic Violence and Child Abuse
Firearms Related: Intentional Use -- See also, Procedural: Failure to Prosecute
First Amendment -- See also, Defamation
Malicious Prosecution -- See also, Defenses: Collateral Estoppel
U.S. Supreme Court Actions -- See also, DNA
U.S. Supreme Court Actions -- See also, Interrogation (1st case)

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