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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2013 LR June
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CONTENTS

Digest Topics
Electronic Control Weapons: Stun Mode Cases
Failure to Disclose Evidence
False Arrest/Imprisonment: No Warrant (3 cases)
Federal Tort Claims Act
Firearms Related: Second Amendment
Positional, Restraint and Compressional Asphyxia
Search and Seizure: Home/Business
Search and Seizure: Person

Resources

Cross References


AELE Seminars

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

Electronic Control Weapons: Stun Mode Cases

     A federal appeals court upheld the grant of qualified immunity to a police officer who used a Taser in the stun mode against a handcuffed arrestee in the back of a police vehicle, since at the time, it had not been clearly established in the Eighth Circuit that the use of force resulting in only de minimus (minimal) injury can violate the Fourth Amendment. In this case, the plaintiff had failed to show that the officer had caused more than minimal injury through his use of the Taser. At the same time, it is now clearly established that such a use of a Taser can be excessive force without a showing of more than a de minimus injury. LaCross v. City of Duluth, #12-23 95, 2013 U.S. App. Lexis 9362, 2013 WL 1891301 (8th Cir.).

Failure to Disclose Evidence

     An arrestee convicted of second degree murder was allowed to then plead guilty to a lesser charge and receive a one year sentence, resulting in his release with credit for time already served. He sued the officials who had conducted the original investigation and prosecution, claiming that they had failed to disclose exculpatory evidence. The trial court ruled that this claim was barred since the plaintiff's conviction and sentence had not been overturned or otherwise set aside. A federal appeals court, noting that the plaintiff could no longer bring a habeas corpus action since he was no longer in custody, found that, under these circumstances his federal civil rights claim was not barred. Poventud v. City of New York, #12-1011, 2013 U.S. App. Lexis 7851 (2nd Cir.).

False Arrest/Imprisonment: No Warrant

     When officers could have reasonably believed that a man had attempted to cause serious physical injury to a person, they had probable cause to arrest him. They could rely on the victim's statement and did not need to take a statement from the arrestee's neighbor, who did not witness the fight in question. Both false arrest and malicious prosecution claims were rejected. Joseph v. Allen, #12-2411, 2013 U.S. App. Lexis 7459 (8th Cir.).

     A man was arrested and taken into custody for trespass because he was standing by himself inside a fenced-in playground that had no trespassing signs at all entrances. A federal appeals court overturned judgment for the defendant officers, finding that a state statute that provided ten broad grounds for making a custodial arrest applied to misdemeanors but not to infractions, which came under a statute specifying three narrower grounds for custodial arrests for infractions. The court ruled that judgment should be entered for the plaintiff, followed by a trial on damages. The court upheld, however, a jury's rejection of an unlawful search claim, as the error on the false arrest standard did not taint the determination that no strip search had occurred. Edgerly v. City and County of San Francisco, #11-15655, 599 F .3d 946 (9th Cir.).

     When a man and a magistrate's daughter ended their engagement, the man tried to retrieve a diamond engagement ring and other items of personal property. Following that, allegations were made that he had stolen his ex-girlfriend's dog. This resulted in a police chase down rural roads and a brief arrest of the man and his father. Both arrestees then filed a false arrest and conspiracy lawsuit against the magistrate, the deputy who made the arrest, and the deputy's supervisor. A federal appeals court ruled that there had been probable cause for the arrests, and that no excessive force was used by the deputy in grabbing the son by the arm, forcing him to the ground, placing him in handcuffs, and searching him, since the deputy could not have known whether he was armed or would resist arrest. There was no real evidence of conspiracy, and the magistrate did not act under color of law in reporting the alleged theft of the dog. Myers v. Bowman, #11-14802, 2013 U.S. App. Lexis 7216 (11th Cir.).

Federal Tort Claims Act

    Federal agents and deputy sheriffs carried out an inspection at a border checkpoint. A father and a number of others were detained when his son fled the checkpoint in a vehicle. Three months after this incident, the father and a passenger in that vehicle were stopped while driving in a national park on the basis of a be-on-the-lookout (BOLO) report that had issued on the father's vehicle after the prior incident. Unlawful search and seizure claims were rejected because the rangers who stopped the vehicle had a reasonable suspicion that the vehicle might contain a fleeing felon or weapons. The appeals court denied, however, federal agents' motion to thrown out a false imprisonment claim under an exception to the Federal Tort Claims Act for claims arising from the detention of goods. No goods were then being detained after the son fled the checkpoint in the vehicle. The court also rejected excessive force claims against the rangers based on them drawing their weapons and handcuffing the father and his passenger during their traffic stop since they had reason to believe that those in the car might be dangerous. Davila v. United States, #12-50044, 2013 U.S. App. Lexis 6749 (5th Cir.).

Firearms Related: Second Amendment

     A Maryland state statute that restricts eligibility for a permit to carry, wear, or transport a handgun in public on having a "good and substantial reason" to do this did not violate the constitutional right to bear arms guaranteed by the Second Amendment. It was in keeping with a substantial governmental interest in protecting public safety and preventing crime, which outweighed any implicated right of armed self defense. Woollard v. Gallagher, #12-1437, 2013 U.S. App. Lexis 5617 (4th Cir.).

Positional, Restraint and Compressional Asphyxia

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

     An arrestee who appeared intoxicated actively resisted officers both during the process of being arrested and when taken into jail. He was handcuffed and pepper sprayed. Then, at the jail, when he continued to resist, he was held down and a Taser was applied to him three times in the stun mode. He was held face down, ceased breathing, and was taken to a hospital where he died. A medical expert for the plaintiff expressed the opinion that his cause of death was traumatic asphyxia due to compression of his neck and back while being restrained. A federal appeals court ruled that the defendant officers were entitled to qualified immunity when there was insufficient evidence to support the strangulation theory, since only the expert's conclusory opinion supported it. That opinion was contradicted by other evidence, including the testimony of all the officers and two EMTs. Burdine v. Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013 Fed. App. 376N, 2013 WL 1606906 (Unpub. 6th Cir.).

Search and Seizure: Home/Business

     A woman claimed that county employees conspired with the father of her child, a sheriff's deputy, to obtain an invalid warrant lacking probable cause to search her house, to use excessive force during the execution of that warrant, and then to arrest her without probable cause. The unlawful search and false arrest claims were rejected, as there was probable cause to search her home and arrest her, based on allegations that she had fraudulently used the deputy's personal credit card to make purchases. However, as there was evidence that she did not pose a threat to officer safety and was not resisting arrest, her excessive force and conspiracy claims survived and should be decided by a jury. She claimed that the defendants pointed weapons at her, grabbed her by the arms and shoulders, and pushed her in the back down a hallway, before handcuffing her in an extremely tight manner. Cameron v. Craig, #11-55927, 2013 U.S. App. Lexis 7563 (9th Cir.).

Search and Seizure: Person

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

     The U.S. Supreme Court has ruled by 5-4 that officers, under ordinary circumstances, must attempt to get a search warrant before compelling drunk driving suspects to submit to a blood test. "[T]he natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." A warrantless blood test might be justified by exigency in some cases under the totality of the circumstances, determined on a case by case basis. Missouri v. McNeely, #11-1425, 133 S. Ct. 1552.

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AELE Seminars

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

     Sex Offenders: "Officers and Child-Sex Offenders: Operational Safety Considerations," By Joy L. Shelton, Tia A. Hoffer, Ph.D., and Charles Joyner, M.A., FBI Law Enforcement Bulletin, May 2013.

     Statistics: "Female Victims of Sexual Violence, 1994-2010," by Marcus Berzofsky, Dr. P.H., RTI, Christopher Krebs, Ph.D., RTI, Lynn Langton, Ph.D., BJS, Michael Planty, Ph.D., BJS, Hope Smiley-McDonald, Ph.D., RTI, March 7, 2013 NCJ 240655.

     Statistics: "Firearm Violence, 1993-2011," by Michael Planty, Ph.D., Jennifer L. Truman, Ph.D., May 7, 2013 NCJ 241730.

     Statistics: "Hate Crime Victimization, 2003-2011," by Lynn Langton, Ph.D., Michael Planty, Ph.D., Nathan Sandholtz, BJS Intern, March 21, 2013 NCJ 241291.

     Terrorism: "Terrorism, Miranda, and Related Matters," Congressional Research Service Report (Apr. 2013).

Reference

Cross References
Assault and Battery: Chemical -- -- See also, Positional, Restraint and Compressional Asphyxia
Assault and Battery: Handcuffs -- See also, Search and Seizure: Home/Business
Assault and Battery: Physical -- -- See also, False Arrest/Imprisonment: No Warrant (3rd case)
Electronic Control Weapons: Stun Mode -- See also, Positional, Restraint and Compressional Asphyxia
Expert Witnesses -- See also, Positional, Restraint and Compressional Asphyxia
Firearms Related: Intentional Use -- See also, Federal Tort Claims Act
Malicious Prosecution -- See also, False Arrest/Imprisonment: No Warrant (1st case)
Search and Seizure: Strip Search -- See also, False Arrest/Imprisonment: No Warrant (2nd case)
Search and Seizure: Vehicle -- See also, Federal Tort Claims Act
U.S. Supreme Court Actions -- See also, Search and Seizure: Person

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