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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2011 LR May (web edit.)
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This publication highlighted 300 cases or items in 2010.
This issue contains 25 cases or items in 16 topics.

CONTENTS

Monthly Law Journal Article
(PDF Format)
Attorneys' Fees in Federal Civil Rights Lawsuits:
An Introduction - Part Two
2011 (5) AELE Mo. L. J. 101

Digest Topics
 Assault and Battery: Handcuffing
Assault and Battery: Physical
Business Regulation (2 cases)
Cost Recovery: Law Enforcement
Failure to Disclose Evidence (3 cases)
False Arrest/Imprisonment: No Warrant (2 cases)
False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use (2 cases)
First Amendment (3 cases)
Freedom of Information (2 cases)
Parking Tickets and Traffic Offenses
Police Plaintiffs: Malicious Prosecution
Pursuits: Law Enforcement
Search and Seizure: Home/Business (2 cases)
Search and Seizure: Person
Wiretapping

Resources

Cross References


AELE Seminars

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.

Assault and Battery: Handcuffing

     After a pawn shop owner told police that a customer who previously sold him a fake watch was back trying to sell more of them, an officer arrived and almost immediately handcuffed him before asking him any questions. When the watches turned out to be genuine, he was released. The officer was not entitled to qualified immunity on a civil rights claim concerning the handcuffing. To apply handcuffs during an investigatory stop, the officer must have a reasonable suspicion that such restraints are necessary for a legitimate purpose or that the suspect is armed and dangerous. It is "well established that if suspects are cooperative and officers have no objective concerns for safety, the officers may not use intrusive tactics such as handcuffing absent any extraordinary circumstances." El-Ghazzawy v. Berthiaume, #10-2058, 2011 U.S. App. Lexis 5095 (8th Cir.).

Assault and Battery: Physical

     Officers, allegedly mistakenly believing that a man was the person wanted for assaulting a state trooper, pulled him from a car in which he was a passenger, and hit him, causing him injury. They were not entitled to qualified immunity, giving the conflicting stories concerning who initiated the violence. Witt v. West Virginia State Police, #10-10008, 633 F.3d 272 (4th Cir. 2011).

Business Regulation

     An earlier version of a city ordinance that restricted vending at a beach boardwalk but made exceptions for the sale of merchandise with an "inextricably intertwined" religious, political, philosophical, or ideological message was unconstitutionally vague, but an amended version of the law, containing clear definitions was not vague and did not violate the First Amendment. Hunt v. Los Angeles, #09-55750, 2011 U.S. App. Lexis 5721 (9th Cir.).

     The owner of a billiard hall and the night club upstairs from it could not recover damages it suffered when it lost approximately half of its revenue when it excluded those under 21 from the billiard room based on confusion and uncertainty about whether a city ordinance required it to do so when it was also serving alcohol. Damages suffered from "cautiously" attempting to comply with an ordinance did not amount to a constitutional injury. Bankshot Billiards, Inc. v. City of Ocala, #10-11474, 2011 U.S. App. Lexis 4762 (11th Cir.).

Cost Recovery: Law Enforcement

     An intermediate California appeals court held that a state statute concerning the recovery, by a municipality, of the cost of furnishing a police officer in response to a subpoena authorized the imposition of such costs on either the attorney or his client. The decision occurred in the context of an officer subpoenaed to testify at an administrative hearing. Maddox v. City of Costa Mesa, #G043297, 2011 Cal. App. Lexis 339 (Cal. App.).

Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence

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

     The U.S. Supreme Court, in a 5-4 ruling, overturned a $14 million jury award to an innocent man who spent 14 years on death row before being exonerated. The plaintiff had sued the prosecutors' officer, claiming that its failure to adequately train staff members concerning the obligation not to hide a blood test that would have established his innocence caused his conviction. While the failure to train on the obligation to disclose potentially exculpatory evidence can be the basis for government liability for violation of civil rights, the plaintiff must show that this reflected a deliberate indifference to the rights of the accused, which normally requires a showing of a pattern of similar constitutional violations by untrained employees. Connick v. Thompson, #09-571, 2011 U.S. Lexis 2594.

     A man arrested and prosecuted for arson sued a police sergeant for allegedly failing to disclose purportedly materially exculpatory evidence, including a false identification by a witness stating that the accused was "gloating" at the arson scene in the months following the crime. The court ruled that even if the officer falsified and omitted the evidence in question when applying for the warrant, the corrected report and warrant application absent this evidence would still have had facts sufficient to provide probable cause for the arrest. Smith v. Almada, #09-55334, 2011 U.S. App. Lexis 5692 (9th Cir.).

     The operator of a day care facility was prosecuted for felony child abuse after a baby there died of a brain hemorrhage and a hospital doctor stated that the child died from being shaken in day care. The doctor failed to reveal before taking the stand in court that there was a pathology report showing that the shaking occurred before the baby arrived at the day care facility. The exonerated day care operator filed a federal civil rights lawsuit against the state director of child services for failure to enforce policies to ensure that doctors disclose exculpatory evidence to prosecutors. A federal appeals court, however, ruled that it was not clearly established that a child services agency had a constitutional duty in these circumstances to discover or train others to disclose exculpatory evidence in child abuse cases. Tiscareno v. Anderson, #09-4238, 2011 U.S. App. Lexis 4977 (10th Cir.).

False Arrest/Imprisonment: No Warrant

     An officer had probable cause to arrest a man for forgery for allegedly trying to cash a fake money order, even though the money order ultimately proved to be genuine, when he was told by a local post office that the money order was fake. The officer, under these circumstances, was not required to attempt to verify with the out-of-town post office that issued the money order that it was genuine rather than fake. The officer was also not liable for requiring the arrestee, for a time, to stand outside in the cold in handcuffs that allegedly were too tight. Sow v. Fortville Police Department, #10-2188, 2011 U.S. App. Lexis 2804 (7th Cir.).

     An officer who arrested a man for disorderly conduct after he called the officer an "SOB" and a "flat slob" was not entitled to qualified immunity from a federal civil rights claim. The arrestee's voice may not have been loud enough to be unreasonable, and the officer's decision to arrest him may have been motivated by retaliation against the arrestee for exercising his First Amendment rights. Kennedy v. City of Villa Hills, #09-6442, 2011 U.S. App. Lexis 5985 (6th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     A New York man was convicted of and incarcerated for over nine years for a murder he did not commit, with the primary evidence against him being his confession containing non-public details about the crime. After his exoneration, he sought damages against the state under an "unjust conviction and imprisonment" statute. The plaintiff claimed that he has a low IQ, dropped out of school in eighth grade, and was suffering from AIDS-related dementia at the time of his interrogation. The officers interrogating him were aware of these facts, and allegedly coerced him into making a false confession. DNA evidence subsequently implicated another man in the murder, who then confessed to the crime. The highest court in New York ruled that the plaintiff's prior false confession did not bar his claim for damages on the basis that he caused or brought about his own conviction. Warney v. State of New York, #35, 2011 N.Y. Lexis 502 (NY).

Firearms Related: Intentional Use

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

     A man convicted of kidnapping an officer, but acquitted of possessing a gun during that same incident, sued the officer for excessive use of deadly force. Holding that the officer was not entitled to qualified immunity, a federal appeals court held that if the officer, as alleged, shot the plaintiff twice, and then shot him six more times while he was on the ground and unarmed, there was no necessity for the use of deadly force after the initial shooting. Brockington v. Boykins, #09-2308, 2011 U.S. App. Lexis 5728 (4th Cir.).

     In a case where officers shot and killed a man armed with a knife while responding to a domestic disturbance call concerning his prior suicide attempt, factual disputes over whether or not a warning before firing had been feasible required a jury determination of whether or not the officers acted reasonably. Hayes v. County of San Diego, #09-55644, 2011 U.S. App. Lexis 5723 (9th Cir.).

First Amendment

     In a case where city police officers made a mass arrest of hundreds of anti-war demonstrators engaged in a demonstration against the beginning of the war against Iraq, police officials were improperly granted qualified immunity. The demonstration, while initially commenced without a proper permit, was allowed to proceed down a number of streets before being blocked from proceeding further. The record failed to establish that those arrested were given adequate notice that permission for the demonstration had been revoked or an opportunity to disperse before facing arrest. The lawsuit claimed that the city's police superintendent was the city's policymaker as to the making of mass arrests, and had authorized the arrests in this case. Vodak v. City of Chicago, #09-2768, 2011 U.S. App. Lexis 5327 (7th Cir.).

     Members of a church who demonstrated near the funeral of a dead U.S. soldier killed in combat had a protected First Amendment right to express their message that God was punishing the U.S. for tolerating homosexuality by the death of soldiers. The U.S. Supreme Court ruled that the church's message was on an issue of public concern, so that a jury verdict for the soldier's father against the church of $2.9 million in compensatory damages and $8 million in punitive damages (reduced by the trial court to $2.1 million in punitive damages) for emotional distress and intrusion into seclusion was improper. Additionally, the protest took place on public land adjacent to a public street and in compliance with local law enforcement's instructions that demonstrators remain 1,000 feet away from the church where the funeral services were held. Snyder v. Phelps, #09-751, 2011 U.S. Lexis 1903.

     A federal appeals court upheld a public university's enforcement of a free speech policy regulating the time, place, and manner of on-campus speech by non-students. It found that the policy was narrowly tailored to serve the school's significant interest in requiring the obtaining of an advance permit, limiting the time and locations of such speech, and obtaining personal information concerning those coming on campus for expressive activity. In granting rehearing in part, the appeals court ruled, however, that the provisions of the policy concerning the security fees that could be imposed on such speakers was facially invalid because it allowed for too much discretion as to when to impose such fees. Sonnier v. Crain, #09-30186, 613 F.3d 436 (5th Cir.), rehearing granted in part and denied in part, 2011 U.S. App. Lexis 3494 (5th Cir.).

Freedom of Information

     A number of Muslim organizations and individuals filed a Freedom of Information Act request that the F.B.I. disclose information concerning investigation or surveillance of them. The trial court's order releasing information that was properly withheld as containing sensitive national security and law enforcement information that should not be made public was overturned. While the government earlier misled the trial court concerning the existence of some documents, that was not a proper basis for an order requiring the disclosure of their contents. Islamic Shura Council v. FBI, #09-56035, 2011 U.S. App. Lexis 6481 (9th Cir.).

     An exemption in the federal Freedom of Information Act protects "mug shots" from disclosure. Releasing such photos under the Act would violate the personal privacy rights of arrestees depicted. The case involved a man seeking the release of the mug shot of the former president of his own investment firm, who pled guilty to securities fraud. Karantsalis v. Department of Justice. #10-10229, 2011 U.S. App. Lexis 4963 (11th Cir.). Editor's Note: The U.S. Court of Appeals for the 6th Circuit has previously held, in Detroit Free Press v. Department of Justice, #94-1540, 73 F.3d 93 (6th Cir. 1996), that the release of such mug shot photos does not violate personal privacy rights.

Parking Tickets and Traffic Offenses

     A motorist's claim that a city's action, in fining him an amount for a traffic violation under a city ordinance that was in excess of the amount of the fine authorized by state statutes for the same offense violated his federal constitutional rights was rejected by a federal appeals court. Under a city ordinance, the motorist was fined $150 for careless driving, along with a $15 amount for court costs and a $1 administrative fee, while state law punishes careless driving with a $30 fine. The city stopped the practice after the North Dakota Supreme Court ruled in Sauby v. City of Fargo, #20070202, 747 N.W.2d 65 (2008) that doing this violated state law. Despite this, the previous imposition of a higher fine on the plaintiff did not violate constitutional due process, equal protection, or the Eighth Amendment prohibition on excessive fines. Mills v. City of Grand Forks, #09-2119, 2010 U.S. App. Lexis 15308 (8th Cir.).

Police Plaintiffs: Malicious Prosecution

     A police officer prosecuted on charges arising out of a fatal shooting sued the city and its chief prosecutor for false arrest, malicious prosecution, abuse of process and emotional distress. The prosecutor was entitled to absolute immunity, and this immunity was not defeated by the claim that he acted in bad faith, as he acted within the scope of his role as a prosecutor and not as an investigator. The city was also entitled to immunity under Ohio state law because the criminal charges did not arise from the employment relationship, but from an independent investigation subsequent to and unrelated to the police department's prior internal inquiries about the incident. Jopek v. City of Cleveland, #93793, 2010 Ohio App. Lexis 1922 (8th Dist.).

Pursuits: Law Enforcement

     A California Highway Patrol officer was entitled to qualified immunity for shooting and killing a female motorist at the conclusion of a high-speed pursuit of an allegedly stolen vehicle. The motorist refused to surrender, yelled obscenities at the officer, and put the car into reverse to ram the police car several times. The officer feared that the motorist would run over other officers present at the scene. While the jury, in awarding damages to the woman's minor children, decided that the officer had acted with a purpose to cause the motorist harm unrelated to a legitimate law enforcement purpose, the federal appeals court found that "the question is not whether an objectively reasonable officer would believe it was constitutional to harm without a legitimate law enforcement objective, but whether such an officer would believe, in the circumstances" faced, that "a legitimate law enforcement objective existed." No prior case law "would have alerted him that his split-second decision in dealing with someone who had just led police on a dangerous high-speed chase and who was using her car as a weapon shocked the conscience." A. D. v. State of California Highway Patrol, #09-17635, 2011 U.S. App. Lexis 6906 (9th Cir.).

Search and Seizure: Home/Business

     A police officer was at a woman's apartment at the time her ex-boyfriend repossessed some of his property. The woman sued the officer, among others, asserting a claim for illegal search. The officer was at the scene to maintain the peace and there was a question as to whether he took an active role in the repossession or remained neutral. At trial, the instructions to the jury, which ruled for the officer, improperly framed the question of whether the officer acted under color of state law as limited to the issue of whether or not he ordered the door to the residence to be opened, when the proper legal standard was the totality of the circumstances, requiring further proceedings. Harvey v. Plains Twp. Pol. Dep't, #09-1170, 2011 U.S. App. Lexis 6236 (3rd Cir.).

     Using a jackhammer to break up concrete during a search authorized by a warrant for a body was reasonable. A federal appeals court rejected a proposed "least possible destructive means" legal standard for conducting such searches. The lawsuit was brought by the landlord of the property, which had been rented to a suspect in a woman's disappearance. The federal appeals court commented that "it seems quite unfair to make an innocent, unlucky landlord absorb the costs associated with the execution of a search warrant directed at a criminally-inclined tenant," but suggested that the landlord pursue available state remedies. He did not, however, "have grounds to make a federal constitutional claim under the Fourth or Fourteenth Amendment or the Takings Clause of the Fifth Amendment." Johnson v. Manitowoc County, #10-2409, 2011 U.S. App. Lexis 4648 (7th Cir.).

Search and Seizure: Person

     Police officers were entitled to qualified immunity from liability for conducting searches of the members of a high school soccer team following a heated match with another school. The officers were searching for items of personal property athletes from the opposing school's football team claimed were missing from the locker room. The search was conducted with the apparent consent of the team's coach, although he subsequently claimed that the officers coerced his consent. The appeals court rejected the largely Hispanic plaintiffs' claim that the officers engaged in "racial profiling" in conducting the searches. Lopera v. Town of Coventry, #09-2386, 2011 U.S. App. Lexis 6757 (1st Cir.).

Wiretapping

     Various groups asserted a facial constitutional challenge to 2008 amendments to the Foreign Intelligence Surveillance Act of 1978 which they claimed violate the Fourth Amendment, the First Amendment, and separation of powers by allowing the executive branch "sweeping and virtually unregulated authority to monitor the international communications of law-abiding U.S. citizens and residents." The amendments created new procedures for conducting electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. A federal appeals court, not reaching the merits of these claims, held that the plaintiffs, attorneys, journalists, and labor, legal, media, and human rights organizations, had standing to challenge the procedures because they showed that they could have a reasonable fear of future injury from the procedures being used to monitor their international communications, and from the costs that they might incur in attempting to avoid such injury. Summary judgment for the defendants was therefore overturned. Amnesty International U.S.A. v. Clapper, #09-4112, 2011 U.S. App. Lexis 5699 (2nd Cir.).

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AELE Seminars

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

     Immigration: "Police and Immigration: How Chiefs Are Leading their Communities through the Challenge," Police Executive Research Forum (PERF) (March 2011). PERF, a Washington-based policing research organization, conducted case studies of immigration policy development in six jurisdictions where the issue has been challenging: Phoenix and Mesa, Ariz.; Prince William County, Va.; New Haven, Conn.; Minneapolis; and Montgomery County, Md. The project, which was conducted with support from Carnegie Corporation of New York, also included a national summit convened by PERF, which produced immigration policy recommendations for local police agencies, Congress, and the Obama Administration.

     Red-Light Cameras: "Research paper: Effects of red light camera enforcement on fatal crashes in large U.S. cities," by the Insurance Institute for Highway Safety (March 2011). The report states that the use of red-light cameras saved 159 lives in 14 cities during a five-year period. It also says they reduced the rate of fatal red-light running by 24% from 2004 to 2008, and that, had the cameras been installed in all U.S. cities with populations above 200,000, 815 deaths would have been prevented.

     Report: "Is the Economic Downturn Fundamentally Changing How We Police?" Police Executive Research Forum (PERF) (Dec. 2010).

     Statistics: "Workplace Violence, 1993-2009," by Erika Harrell, Ph.D., BJS Statistician, March 29, 2011 NCJ 233231. Presents information on violence in the workplace against employed persons based on the Bureau of Justice Statistics' National Crime Victimization Survey and the Bureau of Labor Statistics' Census of Fatal Occupational Injuries. This report includes both nonfatal and fatal forms of violence. Comparisons are made with violence against unemployed persons and violence against employed persons outside of the workplace. Information on type of workplace violence is included. Also discussed is violence by occupation as well as information on victim and crime characteristics such as gender and race distribution, offender weapon use, police notification, and victim injury. Highlights include the following: From 2002 to 2009, the rate of nonfatal workplace violence has declined by 35%, following a 62% decline in the rate from 1993 to 2002. Between 2005 and 2009, law enforcement officers, security guards, and bartenders had the highest rates of nonfatal workplace violence. Among workplace homicides that occurred between 2005 and 2009, about 28% involved victims in sales and related occupations and about 17% involved victims in protective service occupations.

      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: Handcuffs -- See also, False Arrest/Imprisonment: No Warrant (1st case)
Defenses: Absolute Immunity -- See also, Police Plaintiffs: Malicious Prosecution
Domestic Violence and Child Abuse -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence (3rd case)
False Arrest/Imprisonment: Warrant -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence (2nd case)
Firearms Related: Intentional Use -- See also, Pursuits: Law Enforcement
First Amendment -- See also, Business Regulation (1st cased)
First Amendment -- See also, False Arrest/Imprisonment: No Warrant (2nd case)
Governmental Liability -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence (1st case)
Governmental Liability: Training -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence (1st case)
Interrogation -- See also, False Arrest/Imprisonment: Unlawful Detention
Racial Discrimination -- See also, Search and Seizure: Person
U.S. Supreme Court Actions -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence (1st case)
U.S. Supreme Court Actions -- See also, First Amendment (2nd case)

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