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

Jail Liability - Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 - Las Vegas

Jail Liability - Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 - Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2011 LR Aug
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CONTENTS

Digest Topics
Assault and Battery: Handcuffs
Assault and Battery: Physical
Attorneys' Fees: For Defendants
Attorneys' Fees: For Plaintiffs
False Arrest/Imprisonment: No Warrant
Firearms: Intentional Use (2 cases)
Public Protection: Disturbed/Suicidal Persons
Pursuits: Law Enforcement
Racial Discrimination

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

Jail Liability Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 - Las Vegas

Jail Liability Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 - 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: Handcuffs

     Officers who allegedly shoved one occupant of a residence and pointed assault rifles at all of them while executing search and arrest warrants were not entitled to qualified immunity on an excessive use of force claim. They allegedly used this force well beyond the time it took to arrest the suspect sought, who was taken into custody and removed almost immediately after the officers entered. The rifles were pointed at the plaintiffs while they were subdued and handcuffed in their rooms. The court found that no reasonable officer would have thought that such conduct was reasonable under the circumstances. They were, however, entitled to qualified immunity for keeping the arrested suspect's teenage sister and parents detained in handcuffs in the living room for approximately forty-five minutes to an hour after the arrest while they searched for weapons believed to be present. Mlodzinski v. Cormier, #10-1966, 2011 U.S. App. Lexis 11117 (1st Cir.).

Assault and Battery: Physical

     While the plaintiff arrestee was not required to show more than a "de minimus" injury to prevail on his excessive force claim against arresting officers, the law on this subject was not yet clearly established at the time of the incident in question (2005), so the officers were entitled to qualified immunity. The officers allegedly held him on the floor, handcuffed him, jammed guns into his back, and then kicked him several times, subsequently choking him when he was in a police vehicle, while the arrestee did not resist. Chambers v. Pennycook, #09-2195, 2011 U.S. App. Lexis 11392 (8th Cir.).

Attorneys' Fees: For Defendants

     Even though a candidate for chief of police won his election, he sued his opponent for violation of his federal civil rights, as well as claims under state law, for allegedly interfering with his right to seek public office. A federal court dismissed the federal claims as frivolous, and sent the other claims to state court. The U.S. Supreme Court held that reasonable attorneys' fees could be awarded to the defendant under 42 U.S.C. Sec. 1988, but only for costs that the defendant would not have incurred "but for the frivolous claims." Fox v. Vice, #10-144, 2011 U.S. Lexis 4182.

Attorneys' Fees: For Plaintiffs

     When the U.S. Supreme Court held, in McDonald v. Chicago, #08-1521, 130 S. Ct. 3020 (2010) that Chicago and Oak Park, Illinois ordinances banning the possession of handguns for home self-defense were subject to the restrictions of the Second Amendment, those municipalities repealed their existing ordinances, making further litigation over them moot. A federal appeals court has held, however, that since the controversies were not moot at the time of the U.S. Supreme Court's decision, the plaintiffs in the case were entitled to an award of attorneys' fees as prevailing plaintiffs under 42 U.S.C. Sec. 1988. National Rifle Association of America, Inc. v. City of Chicago, #10-3957, 2011 U.S. App. Lexis 11055 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     Officers were entitled to qualified immunity for arresting an attorney on suspicion of smuggling methamphetamine into a county jail. Corroborated evidence from a jailhouse informant that the attorney had accepted jail contraband from one inmate to take to his office for later delivery to another prisoner gave the officers probable cause both to arrest the attorney and to obtain a search warrant for his office. Garcia v. County of Merced, #09-17188, 2011 U.S. App. Lexis 9184 (9th Cir.).

Firearms: Intentional Use

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

     SWAT officers were not liable for the death of a 19-month-old girl whom they accidentally shot while trying to rescue her from her cocaine using father, who was holding her hostage. They had justification for the use of deadly force against the father, who had threatened to kill the child, himself, and anyone who entered his auto shop, and was armed. The officers acted in an objectively reasonable manner after the father shot at them while holding the child. Lopez v. City of Los Angeles, #B219499, 2011 Cal. App. Lexis 729 (Cal. App.).

     A jury properly found that SWAT officers executing a search warrant for narcotics did not violate the Fourth Amendment when they performed a no-knock entry into a house, shot a woman twice as she spun towards an officer while holding a revolver, and shot her fatally a third time when she moved her hand back toward the gun. Noel v. Artson, #09-1562, 2011 U.S. App. Lexis 11110 (4th Cir.).

Public Protection: Disturbed/Suicidal Persons

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

     A deputy acted within his discretionary authority by briefly removing an allegedly suicidal woman from her home to speak with her and observe her to see if there were grounds for taking her into custody for evaluation. After doing so, he let her go, finding no such grounds. He was entitled to qualified immunity in her civil rights lawsuit, as his conduct did not violate the Fourth Amendment. Roberts v. Spielman, #10-13820, 2011 U.S. App. Lexis 11995 (11th Cir.)

Pursuits: Law Enforcement

     A woman seriously injured when struck by a vehicle driven by a drug suspect being chased at high speed by officers could not recover damages from the city or its personnel for negligence. The woman was standing behind a car struck by the suspect's vehicle, and lost her left leg as a result. An intermediate Minnesota Appeals court ruled that the defendants were entitled to official immunity under state law for the exercise of discretion in deciding whether or not to initiate and continue the pursuit of a suspect attempting to flee arrest for a serious drug felony. There was no evidence that the officers acted willfully or maliciously, which would have defeated their official immunity defense. Plaster v. City of St. Paul, # A10-1738, (Minn. App.).

Racial Discrimination

     A jury awarded an African-American arrestee $80,000 in compensatory damages and $1,000 in punitive damages on illegal seizure and equal protection claims. The arrestee had called 911 after a Caucasian auto body shop owner had allegedly fought with him, and threatened to get his gun, and an employee of the shop chased him away with a bat. Officers arriving on the scene allegedly did not listen to the African-American man's story, but instead placed him under arrest and in handcuffs, on charges of which he was later acquitted. Overturning the trial court's rejection of the jury's verdict, the federal appeals court ruled that there was sufficient evidence from which the jury could have concluded that the plaintiff was unlawfully seized and detained, and had been subjected to discriminatory treatment. Pitts v. Delaware, #10-3388, 2011 U.S. App. Lexis 12215 (3rd 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

Jail Liability - Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 - Las Vegas

Jail Liability - Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 - Las Vegas

Click here for more information about all AELE Seminars


   Resources

     Drugs: ADAM II 2010 Annual Report (May 2011). The Arrestee Drug Abuse Monitoring (ADAM II) program is a data collection program that conducts interviews and collects urine specimens in police booking facilities with adult male arrestees within 48 hours of their arrest. Since 2007 ADAM II has been sponsored by the Office of National Drug Control Policy (ONDCP). The latest report indicates that more than half of adult male arrestees last year in ten cities and counties around the U.S. tested positive for at least one drug. Positive test results ranged from 52 percent in Washington, D.C., to 83 percent in Chicago. The highest rates of men testing positive for meth were Sacramento, 33 percent, and Portland, 20 percent. An increasing number of arrestees in Charlotte, New York City, and Sacramento tested positive for marijuana; four of the ten cities--Charlotte, Indianapolis, Portland, and Sacramento, showed significant increases in the percentages testing positive for opiates.

     Education and Crime: "School-Based Early Childhood Education and Age-28 Well-Being: Effects by Timing, Dosage, and Subgroups," by Arthur J. Reynolds, Judy A. Temple, Suh-Ruu Ou, Irma A. Arteaga, and Barry A. B. White, Science (June 9, 2011). The article argues that high-quality early care and education programs can help reduce felony arrests, incarceration rates, and substance abuse among adults who as children attended them. The study follows the educational and social development of more than 1,400 low-income, minority children from high-poverty Chicago neighborhoods. It found that as adults, those left out of the preschool program were 27 percent more likely to have been arrested for a felony by age 28 and 39 percent more likely to have spent time in jail and/or prison than those who did participate.

     Human Trafficking: "Human Sex Trafficking," by Amanda Walker-Rodriguez and Rodney Hill, FBI Law Enforcement Bulletin (March 2011). "Human sex trafficking is a serious problem for every level of law enforcement."

     Nuisances: "The Investigation and Abatement of Nuisance Properties," by Adam B. Stephens, 45 The Prosecutor No. 1, pgs. 40-44 (Jan-March 2011). "Intended to provide police and attorneys with methods to develop dialogue with place managers to prevent crime and abate nuisance activity."

     Search and Seizure, Vehicles: "Searches of Motor Vehicles Incident to Arrest in a Post-Gant World," by Kenneth A. Myers, FBI Law Enforcement Bulletin, (April 2011). "Officers must understand the narrow guidelines pertaining to searches of motor vehicles incident to the arrest of one of its occupants."

     Search and Seizure, Warrants: "The Emergency Aid Exception to the Fourth Amendment's Warrant Requirement," by Michael T. Pettry, FBI Law Enforcement Bulletin (March 2011). "Exigent circumstances may allow officers an exception to the Fourth Amendment's warrant requirement."

     Websites: A new U.S. Justice Department website, Crime Solutions, is intended to help taxpayers judge the effectiveness of state and local anti-crime programs. It has a database of reviews of academic studies on hundreds of anti-crime programs. Each program is classified in one of three categories: effective, promising, or no effects.      

     Wrongful Convictions: "The High Costs of Wrongful Convictions," a study by the Better Government Association and Northwestern University Law School Center on Wrongful Convictions (June 2011). The study documents the costs incurred in 85 criminal prosecutions in which the convictions were overturned in Illinois. It states that wrongful convictions cost Illinois $214 million between 1989, when modern DNA testing became widely available, and 2010. It estimates that the cost will reach approximately $300 million when 16 pending lawsuits are resolved. The study also states that the actual perpetrators of crimes for which others were convicted went on to commit at least 94 more felonies, including 14 murders and 11 sexual assaults, and that 83 men and 2 women spent a total of 926 years behind bars for crimes they did not commit. The study claimed that misconduct or errors by state employees were involved in 81 of the 85 cases, in 66 cases by the police, in 44 by prosecutors and in 29 by forensic specialists.

Reference

Cross References
Assault and Battery: Physical -- See also, Assault and Battery: Handcuffs
Defenses: Official Immunity -- See also, Pursuits: Law Enforcement
False Arrest/Imprisonment: No Warrant -- See also, Racial Discrimination
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