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Assault and Battery: Chemical

     An officer's use of pepper spray and a baton against a motorist who disobeyed orders to get back in his vehicle was an "intermediate" use of force that "while less severe than deadly force, nonetheless present a significant intrusion upon an individual's liberty interests." It is "rarely necessary, if ever," a federal appeals court stated, "for a police officer to employ substantial force without warning against an individual who is suspected only of minor offenses, is not resisting arrest, and, most important, does not pose any apparent threat to officer or public safety." The motorist did not resist, but merely sat on the curb, so he could proceed with his excessive force claim. Young v. County of Los Angeles, #09-56372, 2011 U.S. App. Lexis 17829 (9th Cir.).

     Police believed that a motorist who veered off the road, and disobeyed orders to exit his vehicle was intoxicated. He was actually diabetic, and suffering from hypoglycemia. The officers physically pulled him from his car, struck him, and used mace on him as he resisted their efforts. After a paramedic recognized the driver's diabetic condition, he was transported to a hospital, where he subsequently died. The officers, under these circumstances, were not liable for the motorist's death, based on the reasonableness of their belief that he was intoxicated. Padula v. Leimbach, #10-3395, 2011 U.S. App. Lexis 17996 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     Officers arrested a man outside a state fairgrounds for scalping tickets, despite the fact that the state had no anti-scalping law. Attempting to defend against his false arrest lawsuit, the defendants tried to justify the arrest on the basis of a little known "collecting for benefit without authority" law. A federal appeals court rejected this defense, finding that the arrest could not retroactively be justified by citing an obscure statute that reasonable arresting officers were unlikely to have known of. Rosenbaum v. Washoe County, #10-15637, 2011 U.S. App. Lexis 17460  (9th Cir.).

     A motorist was arrested once for disorderly conduct when he attempted to jump onto his vehicle as it is being towed away, and did the same thing months later, and is then arrested for theft of lost property based on the presence of a police ticket book in his car. He is arrested a third time approximately a year later for trespass into a parking lot intended for police parking only, and sues, claiming all three of these incidents constituted false arrest. A federal appeals court upheld all the arrests, finding that probable cause existed in each instance. The court defines disorderly conduct as disturbing the public order or a breach of the peace. Sroga v. Weiglen, #10-2164, 2011 U.S. App. Lexis 17144 (7th Cir.).

Firearms Related: Intentional Use

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

     A police officer who claimed that she intended to use her Taser on a handcuffed detainee, but instead shot him in the chest with a semiautomatic pistol, was not entitled to qualified immunity in a lawsuit over his death. At the time of the shooting, the detainee was kicking a police vehicle's rear door from the inside. The appeals court noted that the officer had had prior difficulty in drawing the correct weapon. A "jury might question," the court stated, "the reasonableness of choosing to send 1,200 volts of electricity through a person when the alleged concern is for that person's safety." A jury could also possibly find the officer's mistake reasonable, but the trial court should not have reached that conclusion on summary judgment. Torres v. City of Madera, #09-16573, 2011 U.S. App. Lexis 17459 (9th Cir.)

First Amendment

     A man was exercising clearly established First Amendment rights in standing ten feet away from officers and using a cell phone's video recorder with an audio microphone to record their activities, based on his concern that they were using excessive force on an arrestee in a public place. The officer was not entitled to qualified immunity on the man's false arrest lawsuit, despite his argument that the videotaping, by recording audio without consent of all parties to a conversation, violated a state wiretapping statute. The wiretapping statute aimed at clandestine recording, and the officers admitted that the arrestee was open about the fact that he was recording them. Glik v. Cunniffe, #10-1764, 2011 U.S. App. Lexis 17841 (1st Cir.).

Malicious Prosecution

     A man arrested and convicted of sexual assault had his conviction overturned when DNA testing indicated that his uncle, rather than he, was the guilty party. Despite this, his malicious prosecution lawsuit against the police was properly dismissed, since, based on the evidence they had at the time, they had probable cause to arrest him, even if they were ultimately mistaken. Under these circumstances, they had no improper malice towards him, and did nothing improper. Holland v. City of Chicago, #09-3905, 2011 U.S. App. Lexis 12688 (7th Cir.).

Medical Care

     After officers made a controlled purchase of pot in front of an apartment, officers entered the premises, and arrested a female occupant who was smoking marijuana. After she told them that she feels ill, they allegedly denied her requests for a baby aspirin. She subsequently has a heart attack, but the officers are not liable for denying her medical attention, since they were not on notice, based on her appearance, of her serious medical condition, and were not directly made aware that she was experiencing chest pains. Florek v. Village of Mundelein, #10-3696, 2011 U.S. App. Lexis 16854 (7th Cir.).

Search and Seizure: Home/Business

     After police knocked at an apartment door, in response to a child's 911 call reporting that someone is beating her mother, they heard screams from a woman on the roof of the building. Through a window, they saw a man running from a bedroom. Believing that a suspect was on the back porch of the building, they make a forced entry into an apartment, which turned out to be the apartment of the man's mother, and unconnected with the screams on the roof. The mother sued for illegal entry, but the officers, who reasonably believed that they were doing what they needed to do to apprehend a suspect, were not liable. The jury properly found for the defendant officers, and the trial court properly instructed the jury on the plaintiff bearing the burden of proof in the unlawful search case. Bogan v. City of Chicago, #10-2170, 2011 U.S. App. Lexis 13667 (7th Cir.).

Search and Seizure: Search Warrant

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

     Even if it was true that a teacher inappropriately touched a child's breasts while lifting her up in class, this was not enough to justify an officer's obtaining of a search warrant for child pornography in the teacher' home. The officer had no evidence of the teacher's possession or attempted possession of child pornography, or use of home computers to access such materials, so the search of the home and seizure of computers was not supported by probable cause. The officer was still entitled to qualified immunity from liability, however, due to a lack of clear precedent on the issue. Dougherty v. City of Covina, #09-56395, 2011 U.S. App. Lexis 16879 (9th Cir.).

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     Drug Abuse: "State Estimates of Substance Use and Mental Disorders from the 2008-2009 National Survey on Drug Use and Health," U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) (2011),

     Hate Crimes: Hate Violence Against Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected Communities in 2011: A Report from the National Coalition of Anti-Violence Programs," (2011). The report showed a 13 percent increase over 2009 in violent crimes committed against people because of their perceived or actual sexual orientation, gender identity or status as HIV positive. Last year's homicide count reached 27, up from 22 in 2009, and was the second-highest total since the coalition began tracking such crimes in 1996. Of those killed, 70 percent were minorities and 44 percent were transgender women.

     Justice Department Documents: U.S. Justice Department findings in investigation of Puerto Rico Police Department (Sept. 2011). The investigation concluded that the Puerto Rico Police Department has engaged in a pattern and practice of misconduct that violates the Constitution and federal law, including through the use of excessive force, use of unreasonable force and other misconduct designed to suppress the exercise of protected First Amendment rights, and unconstitutional stops, searches and arrests. Press release. Executive summary and full report.

Reference

• Abbreviations of Law Reports, laws and agencies used in our publications
• AELE's list of recently-noted civil liability law resources.