AELE Seminars

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

Lethal and Less Lethal Force
Oct. 15-17, 2012 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 10-12, 2012 - Las Vegas

Click here for more information about all AELE Seminars



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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2012 LR Mar
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CONTENTS

Digest Topics
Assault and Battery: Physical
Dogs
Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
First Amendment
Insurance
Malicious Prosecution
Search and Seizure: Home/Business (2 cases)

Resources

Cross References


AELE Seminars

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

Lethal and Less Lethal Force
Oct. 15-17, 2012 Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 10-12, 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: Physical

     When three adults and two children walked into the street to hug a number of their family members who were participants in a "Caribbean Carnival Parade," they allegedly ignored police orders to get back on the sidewalk. They claimed that officers used excessive force against them, hitting the children with a baton, and shoving the adults to the ground while beating them. A federal appeals court overturned the dismissal of excessive force claims against some of the officers, finding that the alleged beatings were more violent than what "we would expect in the course of a routine arrest." Rudder v. Williams, #10-7101, 2012 U.S. App. Lexis 910 (D.C. Cir.).

Dogs

     Police officers were not entitled to qualified immunity on a stopped motorist's claim that they allowed a police dog "to conduct a five-to seven-minute attack against a person who ran from his car after a traffic stop, where he is lying face down with his hands exposed, no longer resisting arrest, and repeatedly pleading with the officers to call off the dog because he surrenders." The motorist was stopped for allegedly going through a stop sign, and was driving with a suspended licensed. The initial decision to use the dog to track and subdue the motorist when he ran was not unlawful, but, if the facts were as the plaintiff claimed, they allowed the dog's attack to continue for too long. Edwards v. Shanley, #11-11512, 2012 U.S. App. Lexis 640 (11th Cir.).

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

     A motorist arrested for DUI sought discovery of a videotape made by police of his arrest, for use in his defense. Despite receiving notice of this request, the police destroyed the video a number of hours before a court hearing on his discovery requests, doing so under a department policy mandating the destruction of such videos 30 days after an arrest. The trial court properly imposed sanctions on the prosecution for this, barring the state from introducing testimony relating to what was shown on the video. This did not bar the prosecution, and the officer could still be questioned as to what his observations of the defendant at the scene had been, other than testifying about what the video showed. People v. Kladis, #110920, 2011 IL 110920, 2011 Ill. Lexis 2236, 2011 IL 110920.

False Arrest/Imprisonment: No Warrant

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

     During the 2008 Republican National Convention in St. Paul, Minnesota, a police commander ordered that no one be permitted to enter the downtown area during a time when large crowds of protestors and widespread vandalism had been encountered. A large group of people attempted to ignore the order, and allegedly responded to the officers blocking their path by throwing feces and rocks at them. The officers made arrests and used non-lethal force to subdue the protestors. A federal appeals court ruled that the arrests were reasonable, including arrests of those who were not themselves using violence, but were swept up as part of the crowd. The officers also used reasonable force under the circumstances. "What is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable" otherwise. Bernini v. City of St. Paul, #103552, 2012 U.S. App. Lexis 781 (8th Cir.).

False Arrest/Imprisonment: Warrant

     A sheriff did not violate a suspect's clearly established rights by requesting his mental health care hospital records as part of the investigation as to whether he was the sniper who shot down a police helicopter, or was legally entitled to possess weapons. The records pertained to his post-traumatic stress disorder. The sheriff was entitled to qualified immunity for requesting the hospital records under the circumstances. Officers did have probable cause to arrest him under a warrant obtained after learning that he was a trained marksman who had served as a marksmanship instructor in the military, had made suspicious statements about the police helicopter being a "great target," he led police on a 100-mile-per-hour chase when they attempted to follow him, and they found a recently concealed rifle shell casing lying at the bottom of his trash can and a rifle during a search of his home conducted with a search warrant.

     Charges were later dismissed when ballistics showed that his rifle could not have fired the shot that downed the helicopter. The affidavit for the arrest warrant was sufficiently supported by probable cause despite the fact that a hole in a window in the man's house turned out to have been made by a golf ball rather than a bullet, and that a ballistics expert's advice was mistaken. Kerns v. Bader, #092273, 2011 U.S. App. Lexis 25210 (10th Cir.).

First Amendment

     A city failed to justify its policy of excluding registered sex offenders from its public libraries. The court ruled that the First Amendment "includes not just a right of free speech, but also a right to receive information." Since the public libraries constitute a designated public forum, the burden was on the city to show that the exclusion policy was narrowly tailored to serve the stated interest of providing safety for library patrons and left open sufficient alternative avenues of communication for information. Since the city submitted no evidence in response to the plaintiff's motion for summary judgment, mistakenly believing that it had no burden to overcome to defeat his facial challenge to its policy, the motion was properly granted. The policy was found not to be a valid time, place, and manner regulation and to violate a fundamental First Amendment right. Doe v. City of Albuquerque, #102102, 2012 U.S. App. Lexis 1169 (10th).

Insurance

     In an arrestee's lawsuit claiming that an officer used excessive force against him during the arrest, the jury rejected the federal civil rights claim, while awarding the plaintiff $125,000 on an assertion that the officer was negligent under Maine state law in the use of force against him. The trial court reduced the award to $10,000, since a state statute limits the personal liability of a government employee to that amount as a maximum recovery. On appeal, the plaintiff argued that the statutory limitation did not apply because the officer was covered by an insurance policy, resulting in the possibility of higher liability awards (of either $400,000 or the policy limit) for claims "against a governmental entity or an employee" under the statute.

     The federal appeals court certified to the Maine Supreme Court an unresolved issue of state law as to whether the higher liability limit only applied to claims against government employees in their official capacity, as opposed to those against them in their individual capacities. The Maine court must also rule on how to interpret a possible ambiguity in the insurance policy's coverage. Fortin v. Titcomb, #10-2370, 2012 U.S. App. Lexis 1422 (1st Cir.).

Malicious Prosecution

     A man claimed that a sheriff had improperly caused him to enter a guilty plea to charges of terroristic threatening in 1989, despite the alleged fact that he was incompetent to stand trial. This, he claimed, caused him further damages in 1992 when he received an enhanced sentence on new charges because of the prior conviction. The 1989 conviction was later set aside, on a finding that the guilty plea was entered when the defendant was not competent to understand what he was doing. He sued the sheriff, claiming violation of a right not to be prosecuted while incompetent. Rejecting the plaintiff's federal civil rights claim, the appeals court stated that it could find no prior cases imposing liability for "coercing or inducing a guilty plea that is later determined not to be knowing and voluntary." The sheriff also had no obligation to determine the plaintiff's fitness to stand trial at the time he obtained the confession. Hayden v. Nevada County, #10-3838, 2012 U.S. App. Lexis 472 (8th).

Search and Seizure: Home/Business

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

     Police were entitled to qualified immunity for their warrantless entry into a home based on exigent circumstances and the totality of the circumstances. They were investigating reports that a student who lived there had written a letter with a threat to "shoot up" the high school he attended. The mother and son inside initially ignored the officers' knocks on the door, and she hung up on an officer when he called on the phone. The mother and son then stepped outside, and the mother ran inside, followed by her son, and refused to let them in when they asked whether any guns were present in the home. The officers responded by following them inside, and ultimately concluded that the rumors of the threat were false. Under these circumstances, a reasonable officer could believe that he had a right under the Fourth Amendment to enter the home without a warrant when there was a "reasonable basis for concluding that there is an imminent threat of violence." Ryburn v. Huff, #11208, 2012 U.S. Lexis 910. 2012 WL 171121.

     The operator of a mining quarry sued for unreasonable search and seizure in response to numerous warrantless state administrative inspections of its facilities carried out after anonymous information was received alleging that the mine was violating state regulations. Rejecting the plaintiff's claim, the court ruled that the inspections, while warrantless, were not "suspicionless," since inspectors are only allowed to enter a business premises when they have received complaints of an actual safety or health regulation violation. Lesueur-Richmond Slate Corporation v. Fehrer, #11-1112, 2012 U.S. App. Lexis 786 (4th Cir.).

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AELE Seminars

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

Lethal and Less Lethal Force
Oct. 15-17, 2012 Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 10-12, 2012 - Las Vegas

Click here for more information about all AELE Seminars


   Resources

     Drugs and Drug Abuse: "Adult Drug Courts. Studies Show Courts Reduce Recidivism, but DOJ Could Enhance Future Performance Measure Revision Efforts," Report to Congressional Committees, U.S. Government Accountability Office (GAO) (Dec. 2011).

     Rape and Sexual Assault: The federal government has adopted a new definition of rape for purposes of the Uniform Crime Report's statistics. The new definition is: "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." The new definition is gender neutral, and better reflects the text of existing modern state criminal codes. (January 6, 2012).

     Violence Prediction: "The Role of Emotion in Predicting Violence," by David Matsumoto, Hyi Sung Hwang, and Mark G. Frank, FBI Law Enforcement Bulletin (Jan. 2012). "Understanding and predicting individual or group behavior starts with recognizing the importance of emotion."

Reference

Cross References
Assault and Battery: Physical -- See also, Insurance
Damages: Statutory Cap -- See also, Insurance
Defenses: Qualified Immunity -- See also, False Arrest/Imprisonment: Warrant
First Amendment -- See also, False Arrest/Imprisonment: No Warrant
Procedural: Discovery -- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence
U.S. Supreme Court Actions -- See also, Search and Seizure: Home/Business (1st case)

Wiretapping, & Video Surveillance-- See also, Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence

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