AELE Seminars

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 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 December
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CONTENTS

Digest Topics
Assault and Battery: Physical
False Arrest/Imprisonment: No Warrant (3 cases)
Firearms Related: Second Amendment (2 cases)
First Amendment (2 cases)
Interrogation
Negligent or Inadequate Investigation/Failure to Investigate

Resources

Cross References


AELE Seminars

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 Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     A Vietnam veteran suffering from severe post-traumatic stress disorder was combative and disoriented at a hospital emergency room, where his family had brought him for treatment of an injury. Two police officers placed him under arrest under a state mental hygiene law as a person who appears mentally ill and acts in a way likely to cause serious harm to himself or others. He and an officer subsequently fought while he was handcuffed. The arrestee claimed that a beating from the officer aggravated his existing back pain and post-traumatic stress disorder.

     The jury in an excessive force lawsuit awarded $60,000 in compensatory damages and $300,000 in punitive damages. A federal appeals court upheld the award, although ruling that either the plaintiff would have to accept a reduction of punitive damages to $100,000 or undergo a new trial on the punitive damages issue. The appeals court also found that the trial court had not abused its discretion by denying the defendant officer's motion for a continuance after an illness prevented him from attending the first three days of the five-day trial. Payne v. Jones, #09-5201, 2012 U.S. App. Lexis 20665 (2nd Cir.).

False Arrest/Imprisonment: No Warrant

     A group of men were outside one of their residences when unmarked police cars pulled up, demanded to know what they were doing, and ordered them to empty their pockets. When an officer seized keys for the residence and walked toward it, the resident objected and he was handcuffed and then forced to the pavement and allegedly hit and kicked. The officers subsequently left without making any formal arrests. The detained resident sued for false arrest, excessive force, and the failure of a number of officers to intervene. A jury verdict in favor of the defendant officers was upheld on appeal. The appeals court found that any possible flaws in the failure to intervene claim instructions to the jury were harmless, as was the trial court's ruling allowing evidence that the detained plaintiff had several prior arrests. Sanchez v. City of Chicago, #10-3801, 2012 U.S. App. Lexis 22555 (7th Cir.).

     A man's refusal to sign his $156 bar tab gave a police officer probable cause to arrest him for theft of restaurant service, even if the plaintiff was correct that he was not actually required to sign. Rejecting an excessive force claim, the court found that any aggravation of the arrestee's old shoulder injury was attributable to the routine police procedure of handcuffing his hands behind his back, rather than any improper force. Failure to train and supervise claims were properly rejected in light of the lack of any underlying violation of the plaintiff's rights. Royster v. Nichols, #10-3798, 2012 U.S. App. Lexis 22355 (8th Cir.).

     A private security guard had probable cause to make a citizen's arrest of a female professional gambler for trespassing even if she had been sent an invitation to visit the casino. The guard had no way of knowing if she was the person whose name appeared on the invitation, and he had a record that she had previously been thrown out under another name. Further, she was using a player's card with a third name and gave him a fourth name, as well as carrying no identification. A police officer subsequently had probable cause to arrest her for obstructing his investigation by refusing to give a name by which her identity as the person previously ejected could be confirmed or denied. Tsao v. Desert Palace, Inc., #09-16233, 2012 U.S. App. Lexis 22044

Firearms Related: Second Amendment

     A federal appeals court ruled that a federal statute and accompanying regulations which barred federal licensed firearms dealers from selling handguns to persons under the age of 21 did not violate the Second Amendment right to bear arms. The fact that Congress imposed the age restriction only on commercial arms sales did not violate the right of equal protection of the law. National Rifle Association v. Bureau of Alcohol, Tobacco, #11-10959, 2012 U.S. App. Lexis 22197 (5th Cir.).

     A Tennessee state law allows holders of gun permits to carry their handguns in a state-owned or operated public place, provided that the barrel of the gun is less than a foot long. Relying on that law, the holder of a permit slung his AK-47 pistol, which had an 11-1/2 inch barrel across his chest, which bore camouflage, along with a 30-round clip, and went for a walk through a state park. After this alarmed a number of other people, a ranger in the park stopped him, ordered him to get on the ground, and held him until a determination could be made that his weapon was legal. Doing so did not violate the Fourth Amendment, as it was simply a legitimate investigatory stop. The court also rejected an argument that the ranger's actions violated the Second Amendment, since no court "has held that the Second Amendment encompasses a right to bear arms in state parks." Embody v. Ward, #11-5963, 695 F.3d 577 (6th Cir. 2012).

First Amendment

     A man's website promoting white supremacist ideas contained the statement that everyone connected with the trial of a white supremacist "deserved assassination." The website also published personal information about the foreperson of the jury which convicted that white supremacist of soliciting harm to a federal judge. The website operator was convicted, by a jury, of soliciting the commission of violence against that juror. The trial court set the conviction aside, finding that the speech was protected by the First Amendment. A federal appeals court reinstated the conviction, finding that a rational jury could have found, based on the website's contents and its context, that it was intentionally soliciting for criminal acts to be committed against the juror. Such criminal solicitation is not First Amendment protected speech. United States v. White, #11-2150 , 2012 U.S. App. Lexis 22229 (7th Cir.).

     A documentary filmmaker, making a film concerning gang activity, was filming in a public place when a police officer compelled him to stop. He brought a civil rights lawsuit under a New Jersey state statute, claiming violations of his First and Fourth Amendment rights, and his rights under the state Constitution. Reversing the trial court's grant of qualified immunity to the defendant police officer, an intermediate New Jersey appellate court found that the defense of qualified immunity applies to the state statute just as it does to federal civil rights claims, but that it only applies to claims for money damages, not to claims seeking injunctive relief. Additionally, applying the qualified immunity defense on summary judgment was incorrect, since, if the plaintiff's claims were true, the officer may have violated his right of free speech. Ramos v. Flowers, #A-4910-10T3, 2012 N.J. Super. Lexis 157 (App Div.).

Interrogation

     A man falsely convicted of murder based on an allegedly coerced confession sued a city and a number of persons involved in the investigation. A federal appeals court held that the Fifth Amendment rather than the Fourteenth Amendment's due process clause governed the coerced confession claim. The plaintiff would be allowed to amend his claim to state a Fifth Amendment claim to try to show that officers used coercive and abusive interrogation techniques that they either knew or should have known would create false evidence. Hall v. City of Los Angeles, #10-55770, 2012 U.S. App. Lexis 19980 (9th Cir.).

Negligent or Inadequate Investigation/Failure to Investigate

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

     Two men and two women were convicted of participating in a woman's rape and murder. They were later exonerated when DNA testing revealed that the semen and blood at the scene of the crime was from another man with no connection to any of the four convicted, They sued a number of people involved in the investigation, claiming that reckless investigation had violated their due process rights. They also argued that they were coerced into pleading guilty. Overturning grants of absolute or qualified immunity to various defendants, the appeals court found that there was sufficient evidence to support the claims that a reckless investigation and the defendants' creation of false evidence had violated their rights. No such evidence was found, however, to support the claim that their guilty pleas had been coerced. Winslow v. Smith, #11-2903, 2012 U.S. App. Lexis 21358 (8th Cir.).

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AELE Seminars

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 Las Vegas

Click here for more information about all AELE Seminars


Resources

     Community Policing: "Community Policing to Prevent Violent Extremism," by Dan Silk, FBI Law Enforcement Bulletin (October 2012).

     Crime Reduction: "The Effect of Police on Crime: New Evidence from U.S. Cities, 1960-2010," by Aaron Chalfin and Justin McCrary. Paper presented at the meeting of the Association of Public Policy Analysis and Management, Baltimore, Md. (Nov. 8, 2012).

     Criminal Investigation: "False Allegations of Adult Crimes," by James McNamara and Jennifer Lawrence, FBI Law Enforcement Bulletin (September 2012).

     Firearms Related: "New York Police Department Annual Firearms Discharge Report 2011," (August 2012).

     Gun Control: "The Case for Gun Policy Reforms in America," Johns Hopkins Center for Gun Policy and Research, Baltimore, Md. (October 2012).

Reference

Cross References
Assault and Battery: Physical -- See also, False Arrest/Imprisonment: No Warrant (1st and 2nd cases)
Damages: Punitive -- See also, Assault and Battery: Physical
Search and Seizure: Persons -- See also, Firearms Related: Second Amendment (2nd case)
Wiretapping, Video Surveillance, & Internet Legal Issues -- See also, First Amendment (2nd case)

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