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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 Sep
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CONTENTS

Digest Topics
 Assault and Battery: Pepper Spray (2 cases)
Domestic Violence and Child Abuse
Expert Witnesses
False Arrest/Imprisonment: No Warrant
Firearms Related: Accidental Use
Firearms Related: Intentional Use (2 cases)
First Amendment
Police Plaintiff: Suicide Related
Search and Seizure: Vehicle

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: Pepper Spray

     An officer's use of pepper spray to effect an arrest of a man he had observed, weeks earlier, driving with a suspended driver's license was not unreasonable under clearly established law. The arrestee squared off facing the officer and stuck his arms out in a "T," giving the officer probable cause to make an arrest for resisting, whether or not the man was arrested for the prior traffic violation under a valid warrant. Brooks v. City of Aurora, #10-3265, 2011 U.S. App. Lexis 13662 (7th Cir.).

     An officer was not entitled to qualified immunity in a lawsuit over his alleged use of pepper spray against a woman who he claimed tried to hit him after he followed her son from a drug raid into her house. Factual issues concerning whether the woman actually tried to hit the officer, and whether he actually used the pepper spray had to be resolved, precluding the appeals court from upholding the officer's immunity defense. Bomar v. City of Pontiac, #10-2161, 2011 U.S. App. Lexis 13400 (6th Cir.).)

Domestic Violence and Child Abuse

     A federal appeals court overturned a grant of qualified immunity to a child services caseworker who entered a couple's home and removed their children to state custody. There were factual issues as to whether the caseworker recklessly or knowingly made false statements in his affidavit submitted to a court to obtain an order to enter the home. There were also issues concerning whether the caseworker was confused as to which children actually lived with the plaintiffs. Further proceedings were ordered on unlawful search and seizure claims, as well as procedural and substantive due process claims. Southerland v. City of New York, #07-4449, 2011 U.S. App. Lexis 11942 (2nd Cir.).

Expert Witnesses

     A defendant's criminal conviction for driving while intoxicated was overturned by the U.S. Supreme Court because the Confrontation Clause of the Sixth Amendment does not allow the introduction of a forensic report into evidence for the purpose of proving a fact in a criminal trial using the in-court testimony of an analyst who is not the one who performed or observed the test reported and who did not sign the certification contained in the report. Bullcoming v. New Mexico, #09-10876, 2011 U.S. Lexis 4790.

False Arrest/Imprisonment: No Warrant

     There might be some circumstances in which an arrest that was "unambiguously invalid" solely on the basis of state law would constitute a Fourth Amendment violation. But the plaintiff arrestee had not shown that the township ordinance under which he was arrested, prohibiting public intoxication, was unambiguously invalid under New Jersey law. McMullen v. Maple Shade Twp., #09-4479, 2011 U.S. App. Lexis 13084 (3rd Cir.).

Firearms Related: Accidental Use

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

     A diabetic police officer might be entitled to qualified immunity for firing every round in his weapon and hitting a trucker who had committed no offense. He had experienced a hypoglycemic reaction because of his diabetes, and consumed a donut and soda to attempt to counteract it. The officer argued that, because of problems with his blood sugar, he did not intend to fire his weapon at all, much less shoot the trucker. The trial court acted erroneously in rejecting the officer's defense without taking into account the officer's subjective intent. Gardner v. Board of Police Commissioners, for Kansas City, Missouri, #10-2179 , 2011 U.S. App. Lexis 11652 (8th Cir.).

     Editor's note: For a more detailed article on this case, and some commentary, see Charles Remsberg's article on PoliceOne.com.

Firearms Related: Intentional Use

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

     An officer who fatally shot a man running away who was only suspected of a misdemeanor failure to pay child support was not entitled to summary judgment. Even though the officer claimed he intended to use his Taser rather than his gun, a jury could view the shooting as objectively unreasonable. The decedent posed no threat of death or serious bodily injury to anyone.

     As for the officer's alleged confusion between his gun and his Taser, the appeals court noted that the Taser was holstered approximately a foot lower than his gun was, had no thumb safety, unlike his gun, and only weighed half as much as his gun. Because of these facts, the officer should have realized he was holding and shooting his gun. Henry v. Purnell, #08-7433, 2011 U.S. App. Lexis 14391(4th Cir. en banc).

     A police detective was not liable for fatally shooting an arrestee struggling with him who was wrapping his arms around his neck and threatening him, at a time when the officer was having trouble breathing. English v. District of Columbia, #097150, 2011 U.S. App. Lexis 13383 (D.C. Cir.).

First Amendment

     The U.S. Supreme Court ruled that a California state law prohibiting the rental or sale of violent video games to minors violates the First Amendment. Brown v. Entertainment Merchants Assn., #081448, 2011 U.S. Lexis 4802.

Police Plaintiff: Suicide Related

     The widow of a detective lieutenant who committed suicide argued that he had done so because of undiagnosed cumulative post-traumatic stress disorder (CPTSD). Her civil rights lawsuit against the department and its officials failed to establish that the defendants provided inadequate training on suicide prevention, suicide risk assessment, or the effects of CPTSD, in deliberate indifference to a known problem. Robischung-Walsh v. Nassau County Police Dept., #10-1596, 011 U.S. App. Lexis 8856 (Unpub. 2nd Cir.).

Search and Seizure: Vehicle

     A man who alleged that officers detained him and searched his car because someone complained that he was filming a woman on the street from his vehicle adequately stated a valid Fourth Amendment violation. The officers lacked probable cause because "nothing remotely" indicated that anything he was doing was illegal. Catledge v. City of Chicago, #11-1110, 2011 U.S. App. Lexis 13611 (Unpub. 7th 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

     Firearms: "The Current Status of GSR Examinations" by Michael Trimpe, FBI Law Enforcement Bulletin (May 2011). "Gunshot residue examinations have continued to improve through research, advancements, and communication."

     Racial Profiling:  Illinois Traffic Stop Study, 2010 Results, Illinois Department of Transportation. An annual report on the racial identity of motorists stopped by Illinois law enforcement officers, as well as the percentages of motorists in each racial group stopped who were given tickets or subjected to a search of their vehicles. Reports since 2004 are also available at the link.

     School Violence: "Addressing School Violence," by Brandi Booth, Vincent B. Van Hasselt, and Gregory M. Vecchi, FBI Law Enforcement Bulletin (May 2011). "Investigators can make accurate threat assessments in school settings by recognizing the warning signs."

     Use of Force: Book, "Managing the Use of Force Incident: For Criminal Justice Officers, Supervisors, and Administrators," by Howard Webb (404 pages, Charles C. Thomas Pub. Ltd, 2011). Topics covered include understanding the use of force incident, preparing for the use of force incident, and managing the use of force incident.

    Wiretapping: Wiretap Report 2010, Administrative Office of U.S. Courts (2011). More than 3,100 wiretaps were granted to law enforcement by courts in 2010, an increase of 34 percent above 2009. Federal courts approved 1,207 wiretaps, and state courts approved 1,987. Only one request was denied last year, and the report indicates that 84% of the wiretaps were granted in drug related cases. 2,582 arrests and 2,504 convictions in 2010 resulted from wiretaps authorized in previous years.

Reference

Cross References
Assault and Battery: Tasers -- See also, : Firearms Related: Intentional Use (1st case)
Defenses: Qualified Immunity -- See also, Assault and Battery: Pepper Spray (2nd case)
False Arrest/Imprisonment: No Warrant -- See also, Assault and Battery: Pepper Spray (1st case)
False Arrest/Imprisonment: No Warrant -- See also, Assault and Battery: Pepper Spray (1st case)
Governmental Liability: Training -- Police Plaintiff: Suicide Related
Search and Seizure: Home/Business -- See also, Domestic Violence and Child Abuse
U.S. Supreme Court Actions -- See also, Expert Witnesses
U.S. Supreme Court Actions -- See also, First Amendment

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