AELE Seminars

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

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

Public Safety Discipline and Internal Investigations
Dec. 16-18, 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: 2013 LR March
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CONTENTS

Digest Topics
Assault and Battery: Physical
Electronic Control Weapons (3 cases)
Failure to Disclose Evidence
Firearms Related: Intentional Use (2 cases)
Firearms Related: Second Amendment Issues
First Amendment
Freedom of Information
Government Liability: Policy/Custom
Public Protection: Crime Victims
Pursuit: Law Enforcement

Resources

Cross References


AELE Seminars

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

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

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 - Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     A police chief, dressed in street clothes, and without identifying himself as police, allegedly charged into a man, pushing him ten to fifteen feet backward into the side of a pickup truck causing him injuries. A federal appeals court found that the police chief was not entitled to qualified immunity. If the facts were as the plaintiff claimed, a reasonable jury could find that he used excessive force and unreasonably caused severe injuries without justification. Under state law, the police chief was not a final policymaker for the city, and no reasonable jury could find the city liable for his actions. The city was properly granted summary judgment. Atkinson v. City of Mountain View, #11-3352, 2013 U.S. App. Lexis 2703 (8th Cir.).

Electronic Control Weapons

     Officers who entered a residence in response to a report of domestic violence attempted to arrest a man suffering from bipolar disorder who was fighting with his brother. During the arrest, the man initially resisted and was armed with a baseball bat. An officer used a Taser three times in the dart mode after he was ordered to drop the bat. The second use of the Taser caused him to drop the bat, and the third caused him to fall to the ground. Two officers then sat on his back. The officer with the Taser then activated it in the dart mode a fourth time, and then used the Taser in the stun mode against the arrestee six more times. After the tenth use of the Taser, the arrestee appeared to be unconscious, went into cardiac arrest and died. Some officers claimed that the arrestee was continuing to resist efforts to put him in handcuffs during the last seven deployments of the Taser, that he was able to regain possession of the bat, and that he tried to bite officers when he again lost possession of the bat. One officer, however, testified in her deposition that the arrestee had stopped resisting, that officers were then sitting on his upper, lower, and middle body, and that he was rigid and kept his hand underneath his body.

     Rejecting the claim of the officer who deployed the Taser for summary judgment, the court stated that, "[i]t is an excessive and unreasonable use of force for a police officer repeatedly to administer electrical shocks with a Taser on an individual who no longer is armed, has been brought to the ground, has been restrained physically by several other officers, and no longer is resisting arrest." Since officers using "unnecessary, gratuitous, and disproportionate force" do not act in an objectively reasonable manner, qualified immunity was not available as a defense for the last seven uses of the Taser. Qualified immunity was granted, however, for the first three uses of the Taser and for the warrantless entry into the residence, which was supported by probable cause. Meyers v. Baltimore County, #11-2191, 2013 U.S. App. Lexis 2282, 2013 WL 388125 (4th Circuit).

     Animal control officers received reports that a dog belonging to a woman and her adult son was running loose in the area. At the residence, an officer observed the dog unchained in the area of the garage. For about an hour and a half, the officer tried to corral the dog, but the son interfered with these efforts by going to different doors and windows in the house and calling the dog's name, causing him to run away from the officer. The son told the officer, and another officer who arrived to assist, that he would "knock" them out if they touched his dog and "kick your ass" if they didn't leave. Police officers were summoned, and the son called his mother, asking her to come home. The mother arrived and brought her son out of the house, whereupon an officer arrested and handcuffed him, placing him in a police vehicle. The son started to struggle in the back seat of the police car. The police car, which was backing up, hit the mother's car as the driving officer turned around to try to subdue the son. The mother started screaming about the damage to her car. She started to move toward the police car, and the driver, who exited, was concerned that she would try to help her son escape.

     She ignored orders to stop and then, according to her version of the incident, was shot with a Taser in the dart mode without warning. She fell to her knees and then on her back, immobilized, and when she did not roll over as ordered, the Taser was activated in the dart mode again. She then rolled over and was handcuffed. The Taser was also used multiple times in the stun mode against the son in the back seat of the police vehicle, with the son also claiming that it was used multiple times to stun him after he was taken out of the vehicle, was subdued, and had ceased resisting, while still handcuffed. The court found that the son was continuing to actively resist the officer, so that all uses of the Taser against him were justified. Even if he had actually stopped resisting, the facts were such that the officer could reasonably believe that he was continuing to resist, so he was entitled to qualified immunity.

     The mother did not challenge the first use of the Taser against her, but claimed that the second Taser activation was excessive. The appeals court found that a jury could find the second active activation of the Taser against the mother to be excessive, as there was no evidence that she then posed a threat to anyone, and she did not move, exhibiting, at most, passive non-compliance rather than active resistance, according to her version of the incident. Qualified immunity was denied on the second use of the Taser against the mother, as it was clearly established that using a Taser in the dart mode a second time against a nonviolent misdemeanant who made no movement when asked to turn over was an excessive use of force. Abbott v. Sangamon County, #12-1121, 2013 U.S. App. Lexis 1963, 2013 WL 322920 (7th Cir.).

     A motorist who was high on methamphetamines was driving the wrong way down a highway. He pulled over when stopped by an officer, but ignored orders to exit a vehicle. After a scuffle with the state highway patrolman, he started to run away, climbing up on top of a tractor-trailer's sleeper cabin and refusing to obey orders to come down even after pepper spray was used on him. Officers climbed up and forced him down and he started running away again. After a warning, an X26 Taser was fired at him in the dart mode, causing him to fall down, but he kept trying to crawl away and refused to comply with orders to put his hands behind his head. Three additional activations of the Taser in the dart mode finally allowed the officers to handcuff him. He continued to resist, although face down, handcuffed, ankle-shackled and restrained by at least four officers. He stopped breathing and died. An expert witness for the plaintiffs in an excessive force lawsuit over the incident said that the cause of death was positional asphyxia.

     A federal appeals court upheld a denial of qualified immunity to the defendant officers on excessive force claims. The court stated that a reasonable fact-finder could conclude that officers' use of body compression as a means of restraint was unreasonable and unjustified by any threat of harm or escape when the arrestee was handcuffed and shackled, in a prone position, and surrounded by numerous officers. At the same time, the appeals court ruled that it had not been clearly established at the time of the incident (February 2008) that the use of four, five-second Taser cycles in the dart mode within a span of about two minutes against a suspect who appeared unarmed, fell to the ground following the first use of the Taser and then presented no real threat of escape and was surrounded by three officers was objectively unreasonable. The officers were therefore entitled to qualified immunity on claims arising out of the use of the Taser. Abston v. City of Merced, #11-16500, 2013 U.S. App. Lexis 2227 (Unpub. 9th Cir.).

Failure to Disclose Evidence

     A man who served 14 years of a longer sentence on a murder conviction was granted a new trial and released from prison on the basis of his claim that the service officers, including a police detective involved in his prosecution, had withheld exculpatory evidence. He then sued the former detective, as well as a police commissioner, two officers and the city for violating his due process rights by withholding the evidence. While a first trial of the case resulted in a deadlocked jury, on retrial, a jury awarded $14 million to the plaintiff based on a finding that the detective had withheld the evidence. A federal appeals court has ordered yet another new trial, based on errors in the trial judge's instructions to the jury on the issue of causation. The jury should have been instructed that liability could only be found it there was a showing by a preponderance of evidence, that, but for the withholding of the exculpatory evidence, the conviction would not have occurred. It did reject, however, the detective's arguments that the evidence withheld was not material or that he was entitled to qualified immunity. Drumgold v. Callahan, #11-1304, 2013 U.S. App. Lexis 2301 (1st Cir.).

Firearms Related: Intentional Use

     An officer who shot a man seven times while he was sitting in his car in a park paralyzing him was not entitled to qualified immunity. If the facts were as the plaintiff described them, no reasonable officer would have used deadly force against the motorist. The officer claimed that the motorist was accelerating his car, threatening the life of another nearby officer. According to the motorist, he never accelerated his car, but was nevertheless shot after he put his car in park. Morton v. Kirkwood, #12-11436, 2013 U.S. App. Lexis 2754 (11th Cir.).

     A 13-year-old boy and his friends were playing cops and robbers in a park at night, using toy guns. Two officers on patrol came through the park, and saw the boy standing behind a parked car. One of them ordered the boy not to move and then shot him when he stepped out from behind the van. The bullet resulted in the boy being hit in the chest and paralyzed. A jury awarded a total of $24 million on claims for negligence and excessive force. The award was reduced to $19.2 million. The jury found the officer 80 percent negligent, the boy's mother 15 percent negligent, possibly for buying the realistic looking toy gun, and the boy 5 percent negligent. The officer claimed to have seen the boy holding the toy gun, which he assumed was real, and said that he had feared for his life. Eriza v. Abarca, #BC-453870, Superior Court of Los Angeles County, Los Angeles, CA (Dec. 14, 2012). Verdict Summary.

Firearms Related: Second Amendment Issues

     A man in Massachusetts owned a handgun that was kept loaded and unlocked in a bedroom table drawer on the second floor of his house. He had a valid license for the gun. During an argument with his roommate, she took the gun from the drawer and threw it into some bushes next to a neighbor's house. When police discovered this and learned that the gun had been loaded when thrown there, the gun owner was charged with violation of a law that requires that a gun be in the immediate control of the authorized user unless it is in a locked container or locked down with a safety device so that only the authorized owner can use it. He argued that this law was unconstitutional under the Second Amendment and violated his right to have a handgun in his home for self-defense. The highest court in Massachusetts rejected this argument, finding that it did not interfere with the ability of a licensed gun owner to keep or carry a loaded firearm in his immediate control for self defense. The law properly aimed at preventing those not licensed to possess or carry firearms from gaining access to them. Commonwealth v. McGowan, #SJC-11076, 2013 Mass. Lexis 13

First Amendment

     A motorist adequately alleged that officers arrested him in retaliation for his First Amendment protected expressive activity after he was cited for violating a noise ordinance. The officer allegedly told the motorist that if he cooperated he would get off with a ticket, but that "if you run your mouth, I will book you in jail for it." When he later was taken into custody and was being taken to a booking facility, he was allegedly told that it was because he was playing his music too loud and had "acted like a fool." The appeals court found that, if true, this violated his clearly established First Amendment right to be free from action motivated by retaliation even if probable cause existed for his initial arrest on the noise violation alone. A reasonable officer would have known that he could not exercise his discretion to book a person in retaliation for First Amendment activity. Ford v. City of Yakima, #11-35319, 2013 U.S. App. Lexis 2716 (9th Cir.).

Freedom of Information

     The highest court in Maryland has upheld an order requiring the state police to release records the NAACP requested concerning internal investigations of complaints of racial profiling during traffic stops and searches. The records were to be released with the names and identification of individual officers redacted. The court found that, after officers' names, the names of complainants, and all identifying information were removed, the reports were not personnel records or the "records of an individual" for the purpose of any exemption from disclosure under a state public information law. Md. Dep't of State Police v. Md. State Conf. of NAACP Branches, #41-10, 2013 Md. Lexis 15.

Government Liability: Policy/Custom

     An officer went to a hotel room in response to a call that someone was trying to break in. When the officer arrived, a woman walked out of the room, and he entered. Inside, he encountered a man in the bathroom, talking to a woman who was the mother of his child. Neither of them were armed or involved in any crime. The officer pushed the bathroom door open, knocked the man to the floor, used his Taser on him, knocking him to the ground a second time and then shot him several times, killing him. He then planted a handgun taken from his patrol car on the deceased. There was no evidence of gun powder on the dead man's hands and no fingerprint evidence showing that he had handled the gun. The dead man's mother did not sue the officer, but sued the sheriff in his official capacity, claiming that the officer's actions were based on an unofficial policy of falsely accusing unarmed people of posing a threat to justify using deadly force against them, planting guns at the scene of a shooting, and giving false statements to justify the use of deadly force. A federal appeals court upheld summary judgment for the defendant. The evidence showed no indication of any policy or custom that was the moving force behind the officer's actions. The court's opinion did not discuss whether the use of the Taser had been justified, or in what mode, dart or stun, the Taser had been deployed. Gandy v. Reid, # 11-14828, 2013 U.S. App. Lexis 2209 (Unpub. 11th Cir.).

Public Protection: Crime Victims

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

     A woman claimed that police officers acted negligently in failing to pick up and remove shotgun shells that were lying near a suspect they stopped and questioned on suspicion of burglary. The suspect later returned to the scene, retrieved the shells, and allegedly used them to shoot and kill the woman's husband. While there may be an independent duty to provide protection against the criminal acts of a third party when the defendant's own affirmative act creates or exposes another to the recognizably high degree of risk of harm. But the court also ruled that, in this case, the officers' alleged action of failing to pick up the shotgun hells during an investigatory stop did not add up to such an "affirmative" act for which there could be liability. Robb v. City of Seattle, #85658-3, 2013 Wash. Lexis 73.

Pursuit: Law Enforcement

     A deputy pursued a motorcycle he observed speeding after it failed to stop when he asked it to. Ultimately, the pursued motorcycle crashed and the deputy found it off the pavement. The motorcyclist died from injuries suffered in the accident. Upholding summary judgment for the deputy and the county, the court found no evidence to support the argument that the deputy's actions caused the motorcyclist to lose control of his vehicle. There was nothing to show that the deputy's vehicle was anywhere near the motorcycle at the time of the accident. Nor was there any evidence of a physical crash between the motorcycle and the deputy's vehicle. A reconstruction of the accident also seemed to support the conclusion that speed did not cause the crash. Estate of Smith v. Cumberland County, #12-10, 2013 ME 13, 2013 Me. Lexis 13.

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AELE Seminars

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

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

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 - Las Vegas

Click here for more information about all AELE Seminars


Resources

      Gun Control: "Gun Violence Reduction Executive Actions," The White House, Office of the Press Secretary (Jan 16, 2013). "Now Is the Time: The President's Plan to Protect our Children and our Communities by Reducing Gun Violence," The White House, Office of the Press Secretary (Jan 16, 2013). Executive Summary.

     Interrogation: "Miranda Waivers," Alameda County District Attorney (2013).

    Police Corruption: "Crime, Corruption and Cover-ups in the Chicago Police Department," Anti-Corruption Report Number 7, by multiple authors, University of Illinois at Chicago Department of Political Science (January 17, 2013).

     Terrorism,: "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force," Department of Justice White Paper (Written in 2011, Published February 2013).

Reference

Cross References
Code of Silence -- See also, Government Liability: Policy/Custom
Damages: Compensatory -- See also, Firearms: Intentional Use (2nd case)
Domestic Violence --See also, Electronic Control Weapons (1st case)
False Arrest/Imprisonment: No Warrant -- See also, First Amendment
Firearms Related: Intentional Use -- See also, Government Liability: Policy/Custom
Governmental Liability -- Policy/Custom -- See also, Assault and Battery: Physical
Negligence: Vehicle Related -- See also, Pursuit: Law Enforcement
Positional, Restraint and Compressional Asphyxia --See also, Electronic Control Weapons (3rd case)
Privacy -- See also, Freedom of Information
Racial Discrimination -- See also, Freedom of Information
Search and Seizure: Home/Business --See also, Electronic Control Weapons (1st case)

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