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ISSN 0271-5481 Cite this issue as: 2013 LR July
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CONTENTS

Digest Topics
Assault and Battery: Handcuffs & Restraints
DNA Testing & Issues
Electronic Control Weapons: Training Injuries
Failure to Disclose Evidence
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
First Amendment
Racial/National Origin Discrimination -- Racial or ethnic profiling
Sexual Assault
Terrorism and National Security Issues

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

Assault and Battery: Handcuffs & Restraints

     An arrestee sued a city, claiming that he had suffered a broken leg when an officer allegedly compelled him to sit down while he was restrained in handcuffs. The Mississippi Supreme Court held that the city was entitled to summary judgment as it was immune from liability for acts of its employees performing police duties unless the officers acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury. Nothing showed that the officer acted in reckless disregard for the plaintiff's safety and well being. City of Jackson v. Gardner, #2012-IA-00517-SCT, 108 So.3d 927, 2013 Miss. Lexis 68.

DNA Testing & Issues

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

     Officers who make a lawful arrest for a serious offense may take and analyze a cheek swab of the arrestee's DNA. Like fingerprinting and photographing, it is a legitimate police booking procedure that is reasonable under the Fourth Amendment. Maryland v. King, #12-207, 2013 U.S. Lexis 4165.

Electronic Control Weapons: Training Injuries

     A deputy sheriff suffered vertebral compression fractures during a training exercise in which he was voluntarily exposed to an ECW. He sued TASER International alleging the firm had failed to adequately warn him of the risk of compression fractures. The District Court found, as a matter of law, the warnings were adequate. The Court of Appeals affirmed, finding that the manufacturer's warning regarding potential vertebral fractures was accurate, clear, consistent, and sufficiently forceful. Kandt v. Taser Int'l, Inc., #12-3041-cv, 2013 U.S. App. Lexis 11143, 2013 WL 2395999 (2nd Cir.). For more on the facts of the case, see the prior decision Kandt v. Taser Int'l, Inc., #5:09-CV-0507, 2012 U.S. Dist. Lexis 96024 (N.D.N.Y.).

Failure to Disclose Evidence

     Two men convicted of murder had their convictions vacated and all charges against them dismissed after the key witness against them recanted his testimony. The trial court in a lawsuit against a number of defendants failed to properly instruct the jury about the level of culpability sufficient for a showing of deliberate fabrication of evidence under the Fourteenth Amendment. As the error was not harmless, the appeals court reversed a jury verdict for the defendants and ordered a new trial. Given the evidence presented, a reasonable jury could have concluded that the defendants used investigative techniques that were "so coercive and abusive" that they should have known that they would produce false information. At the retrial, the trial court should also determine whether an instruction was appropriate for failure to disclose exculpatory evidence, and explain its ruling. Gantt v. City of Los Angeles, #11-55000, (9th Cir.).

False Arrest/Imprisonment: No Warrant

     A man was stopped while walking away from his brother's home after an argument. He was arrested after he was identified from a photographic lineup by a kidnapping victim. He was charged with kidnapping and subsequently indicted by a grand jury, and spent seventeen months in custody awaiting trial before the charges were dropped because the complaining witness was unavailable, possibly having moved to Germany. The New Hampshire Supreme Court found that the grand jury indictment did not entitle the law enforcement defendants in a false imprisonment lawsuit to statutory or official immunity because the finding of probable cause for prosecution by the grand jury did not establish that his arrest was supported by probable cause or that his arrest was not made in a wanton or reckless manner. The court found that it could be concluded that there was no probable cause to arrest as a result of inconsistencies in the kidnap victim's description and photographic identification, and the actual appearance of the plaintiff at the time of the arrest. The dismissal of the lawsuit was reversed. The malicious prosecution claim was rejected, however, based on the grand jury indictment. Ojo v. Lorenzo, #2012-510, 64 A.3d 974, 2013 N.H. Lexis 35.

Firearms Related: Intentional Use

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

     When officers believed that a motorist detained for a traffic stop was committing and attempting to conceal a drug offense, and the situation quickly escalated, with the driver disobeying orders, including as to where in his vehicle he reached, the use of force, including deadly force to shoot and kill the motorist was not excessive, but rather objectively reasonable. At the time of the shooting, the motorist was driving on with an officer who entered the vehicle to grapple with him still in the passenger seat. Due process claims were rejected as there was nothing in the officers' conduct indicating that they had an ulterior motive for their use of force. Gonzalez v. City of Anaheim, #11-56360, 2013 U.S. App. Lexis 9607 (9th Cir.).

First Amendment

     When then President Bush spoke at a fundraising dinner at a mayor's residence, demonstrators protesting his appearance were required to go to at area 150 yards away, while a group of demonstrating supporters of the President were permitted to stay on private property directly across from the mayor's house. A federal appeals court granted the defendant law enforcement personnel qualified immunity on claims that their actions violated the First Amendment. Each defendant was aware of the disparate treatment to which the protesters were subjected, but this evidence was insufficient as a matter of law to show that any of them promulgated the policies at issue or acted for a discriminatory purpose. Each defendant's actions were consistent with his own agency's facially viewpoint-neutral policy. Pahls v. Thomas, #11-2055, 2013 U.S. App. Lexis 11174 (10th Cir.).

Racial/National Origin Discrimination -- Racial or ethnic profiling

     Finding that an Arizona sheriff violated the constitutional rights of Hispanic drivers by stopping motorists of that origin in the course of an intended crackdown on illegal immigrants, a federal judge enjoined the practice of using race or ancestry as grounds for stopping, detaining, or holding occupants of vehicles, including in crime sweeps labeled "saturation patrols." In the quest for illegal immigrants, the court found, many U.S. citizens and legal residents of Hispanic origin were stopped and detained. Melendres v. Arpaio, #CV-07-02513, 2013 U.S. Dist. Lexis 73869 (D. Ariz.).

Sexual Assault

     A police officer responding to a woman's 911 call about a fight with her teenage son at her home late at night allegedly raped her. He was subsequently arrested, fired, and committed suicide. The woman sued the police department, asserting claims for inadequate hiring and training, inadequate investigation of a prior sexual assault complaint against the officer, and inadequate discipline and supervision. The trial court held that a reasonable jury could conclude that the officer acted under color of state law, but granted summary judgment for the defendants because the plaintiff failed to prove that they caused the rape or acted with deliberate indifference to the risk that it would occur. A federal appeals court agreed. "The events alleged in this case are tragic, and Officer Coyne's alleged conduct was a terrible crime. The state cannot prosecute Officer Coyne because he is dead, and Ms. Schneider is left with suing his supervisors and employer. . . . to hold [defendants] liable for Officer Coyne's actions, she faces stringent proof requirements under 1983 law, proof she is unable to muster." Schneider v. City of Grand Junction, #12-1086, 2013 U.S. App. Lexis 11247 (10th Cir.).

Terrorism and National Security Issues

     A federal district court ruled that the Google search engine company must provide private user data to the FBI pursuant to 17 out of 19 properly issued National Security Letters (NSLs), despite the fact that there was no judicially issued warrant for the information. The judge requested more information on the remaining two NSLs. NSLs allow FBI officials to send secret requests for "name, address, length of service," and other account information to online companies, banks, and other businesses as long as there is relevance to a national security investigation. In Re: National Security Letters, #C-13-80063, U.S. Dist. Ct. (N.D. Cal. May 28, 2013).

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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

     Gender Equality: N.Y.C. Police Department memo prohibiting the arrest of women for going topless in public (Feb. 7, 2013), based on a prior N.Y. Court of Appeals decision holding that equality of the sexes mandated that women be allowed to appear topless in public for noncommercial purposes, since men were allowed to. People v. Santorelli, #115, 880 N.Y.2d 875, 600 N.E.2d 232, 587 N.Y.S.2d 601 (1992).

     Sexual Harassment: "Cyberbullying and Sexting: Law Enforcement Perceptions," by Justin W. Patchin, Joseph A. Schafer, and Sameer Hinduja, FBI Law Enforcement Bulletin (June 2013).

     Suicide: "The Role of Law Enforcement Officers in Preventing Suicide," Suicide Prevention Resource Center (May 2013).

Reference

Cross References
Defenses: Official Immunity -- See also, Assault and Battery: Handcuffs & Restraints
Governmental Liability: Supervision -- See also, Sexual Assault
Malicious Prosecution -- See also, False Arrest/Imprisonment: No Warrant
Negligent or Inadequate Hiring, Retention & Supervision -- See also, Sexual Assault
Police Plaintiff: Training Injuries -- See also, Electronic Control Weapons: Training Injuries
Search and Seizure: Computer Related -- See also, Terrorism and National Security Issues
Search and Seizure: Person -- See also, DNA Testing & Issues
Search and Seizure: Vehicle -- See also, Racial/National Origin Discrimination -- Racial or ethnic profiling
U.S. Supreme Court Actions -- See also, DNA Testing & Issues

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