AELE Seminars

Lethal and Less Lethal Force
Oct. 7-9, 2013 - Las Vegas

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

Jail Liability Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 Orleans Hotel, 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 November
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CONTENTS

Digest Topics
Electronic Control Weapons: Dart mode and Stun Mode Cases
Freedom of Information
Failure to Disclose Evidence
False Arrest/Imprisonment: No Warrant
Firearms Related: Second Amendment
First Amendment
Search and Seizure: Home/Business
Search and Seizure: Search Warrant (2 cases)
Towing

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
Oct. 7-9, 2013 Las Vegas

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

Jail Liability Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Electronic Control Weapons: Dart mode and Stun Mode Cases

     Police officers were not liable for the death of a combative suspect after they repeatedly used a Taser first in the dart mode and then in the stun mode. The officers broke into a small barricaded bedroom where a man, having injured a naked woman, was attempting to perform an exorcism on a three-year-old girl. They found the walls smeared with blood and the man with his hands around the child's neck in a choke hold. The suspect refused to stop what he was doing and kicked at an officer, after which the Taser was deployed. Neither the dart mode nor the stun mode appeared to have much effect on the man. The officers pulled the Taser X26's trigger a combined 22 times, but the discharges were not the uniform five-second cycle associated with the weapon. It was unclear how long the X26 was in contact with the man while discharging. They then wrestled him until he was subdued, after which he had no pulse. He never recovered. An autopsy found that the cause of the man's death was "excited delirium" with "hypertensive/atherosclerotic cardiovascular disease" as a contributing condition. The officers' repeated use of the Taser was reasonable, given that the man was suspected of serious crimes, was a potential threat to them and a child, and was resisting arrest. Marquez v. City of Phoenix, #10-17156, 2012 U.S. App. Lexis 19048 (9th Cir.). 

Freedom of Information

    Newspapers had no First Amendment right to obtain access to sealed court documents used in connection with the issuance of a search warrant as part of an investigation into financial fraud. There was no historical record of unrestricted public access to documents filed in search warrant proceedings. Further, granting public access to such documents would be detrimental to the search warrant application and process of criminal investigation, particularly when the magistrate sufficiently stated the justification for sealing the documents. In re: In the Matter of the Search of Fair Finance, #10-4139, 2012 U.S. App. Lexis 18627, 2012 Fed. App. 0304P (6th Cir.).

Failure to Disclose Evidence

     A man exonerated of his rape conviction by DNA evidence after serving 23 years in prison claimed that a police officer involved in the investigation was liable because he allegedly failed to disclose an incident which may have suggested that another man, who visited the victim's apartment while the officer was there, committed the crime. But no reasonable jury could find that the officer knew, at the time, the exculpatory value of the visit without simply speculating. At worst, the officer acted negligently in failing to identify the actual rapist as a suspect, and this was insufficient to show a reckless investigation. The plaintiff also failed to show that another defendant officer conducted an improperly suggestive lineup. The victim's identification of the plaintiff as her rapist, although mistaken, had significant indicia of reliability to be admitted as evidence at trial. Briscoe v. County of St. Louis, #113034, 690 F.3d 1004 (8th Cir. 2012).

False Arrest/Imprisonment: No Warrant

     A police officer saw a former firefighter soliciting money for charity with a firefighter's boot, and arrested him for theft relating to the misuse of a firefighter's identification card, as he was no longer a firefighter. The arrestee was given an order of supervision on the theft charge. When the same officer later saw the arrestee again soliciting money using a large boot, he arrested him for violating the order of supervision, although he actually lacked authority, under state law, to arrest him for violating the terms of his supervision. The appeals court held that the "Fourth Amendment permits an officer to make an arrest when he or she has probable cause to believe that an individual has committed or is committing an offense under state law, regardless of whether state law authorizes an arrest for that particular offense." The officer, therefore, was entitled to qualified immunity. The officer could also reasonably believe that asking for charitable donations using a large rubber boot amounted to the man holding himself out as a firefighter and improperly soliciting funds on behalf of the fire department. Tebbens v. Mushol, #112400, 2012 U.S. App. Lexis 18383 (7th Cir.).

Firearms Related: Second Amendment

     An ex-police officer had her firearms license revoked shortly after she resigned from the department. Renewal was denied because she checked no on a question as to whether she had resigned with charges pending, and there had actually been an unresolved incident inquiry pending. She sued, claiming that she had a Second Amendment right to the license, which would allow her to carry a concealed handgun outside her home for self-defense. The appeals court ruled that current Supreme Court case law concerning a Second Amendment right to possess a handgun for self-defense applies to the home and that "the government may regulate the carrying of concealed weapons outside of the home." Revoking her firearms license on the basis of her providing false information on the application for renewal did not violate her rights. Hightower v. City of Boston, #11-2281, 2012 U.S. App. Lexis 18445 (1st Cir.).

First Amendment

     A man was arrested under a city ordinance which criminalized the refusal to leave a place when ordered to do so by a police officer after three or more persons were engaging in disorderly conduct nearby. A federal appeals court found that the ordinance violated the First Amendment on its face because it "substantially inhibits protected speech and is not amenable to clear and uniform enforcement." Additionally, a section of the ordinance did not clearly specify what inconveniences, if performed by three or more persons, could trigger an order to disperse, nor clarify whether dispersal had to be necessary to end the violation. The ordinance, as it was standardless as to the nature of the annoyance that triggered the law, could render individuals subject to arbitrary or discriminatory arrest, making it void for vagueness in violation of due process. Bell v. Keating, #11-2408, 2012 U.S. App. Lexis 18952 (7th Cir.).

Search and Seizure: Home/Business

     Police officers executed search warrants for narcotics on two homes based on information from a confidential informant and their own investigation. Rejecting excessive force claims, the appeals court found that the officers drawing their guns and using handcuffs on the occupants of the homes during the searches could be justified by the officers' reasonable concern for their safety, and could have believed that the amount of force used was legal given the dangers involved in a drug raid. The searches conducted were also reasonable and based on probable cause, given the information from the confidential informant, the evidence of controlled buys of drugs, and substances found in a garage on the premises. The residents did not have their rights violated by being detained during the search and there had been probable cause to arrest some of them. Marcilis v. Township of Redford, #11-1073,  2012 U.S. App. Lexis 18707, 2012 Fed. App. 0310P (6th Cir.).

Search and Seizure: Search Warrant

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

     An officer obtained a no-knock search warrant for a couple's residence based on a woman's call to a city hotline stating that her sister was a felon possessing a gun unlawfully. The caller, however, had not seen her sister or the gun in five years and the officers stated it as five days on the warrant application. He was not entitled to qualified immunity on an unlawful search claim. A reasonable jury could, under these circumstances, find that the officer knowingly or with reckless disregard made false statements in his warrant application. During the search of the residence, the sleeping couple was woken by the no-knock entrance, and the husband was shot twice. Betker v. Gomez, #113009, 2012 U.S. App. Lexis 18636 (7th Cir.).

     In a criminal prosecution, a federal district court found that police officers did not violate the Fourth Amendment by searching a suspect's Facebook page through the consented use of another person's Facebook account, and using the information obtained to provide probable cause for a search warrant. U.S. v. Meregildo, #11-Cr-576, 2012 U.S. Dist. Lexis115085, 2012 WL 3264501 (S.D.N.Y.).

Towing

     The owner of a truck sued a towing company for allegedly wrongfully holding onto his truck for 38 days and requiring him to pay $1,385 to get it back. The sheriff's department's decision to impound, tow, and store the truck was reasonable under the community caretaking doctrine. The "sheriff's department's impounding of the truck did not violate plaintiff's right to travel, was not an unreasonable seizure, and did not misapply the Vehicle Code to his noncommercial use of the truck." The plaintiff lacked registration for his light truck and did not have a driver's license, and the fact that he did not use his truck to transport people or property for hire did not exempt him from applicable licensing laws. Halajian v. D&B Towing, #F063071, 209 Cal. App. 4th 1, 2012 Cal. App. Lexis 949 (Cal. App. 5th Dist.).

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AELE Seminars

Lethal and Less Lethal Force
Oct. 7-9, 2013 Las Vegas

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

Jail Liability Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Domestic Violence: "Ferreting Out Domestic Abuse," by Katti Gray, The Crime Report (August 13, 2012). Addresses new federal laws contained in the Patient Protection and Affordable Care Act (often referred to as "Obamacare"), which mandates that doctors nationwide routinely screen their female patients for possible abuse by their intimate partners, in order to reduce domestic violence.

     Drone Surveillance: "Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System" Congressional Research Service (Sept. 10, 2012).

     Statistics: "Prevalence of Violent Crime among Households with Children, 1993-2010," by Erica L. Smith, Jennifer L. Truman, Ph.D. Bureau of Justice Statistics (September 19, 2012 NCJ 238799).

Reference

Cross References
Defenses: Qualified Immunity -- See also, False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: No Warrant -- See also, First Amendment
First Amendment -- See also, Freedom of Information
Negligent or Inadequate Investigation -- See also, Failure to Disclose Evidence
Other Misconduct: Lineups -- See also, Failure to Disclose Evidence
Search and Seizure: Home/Business -- Search and Seizure: Search Warrant (1st case)
Search and Seizure: Search Warrants -- See also, Freedom of Information
Wiretapping, & Internet Legal Issues -- Search and Seizure: Search Warrant (2ndcase)

Property -- See also, Towing.

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