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Dec. 16-18, 2013 - Las Vegas

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

Digest Topics
Assault and Battery: Chemical
Assault and Battery: Handcuffs
Assault and Battery: Physical
Attorneys' Fees: For Plaintiff
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Federal Tort Claims Act
Firearms Related: Second Amendment
Search and Seizure: Home/Business
Sexual Assault

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: Chemical

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

     A man claimed that officers who came to his house to arrest his brother under a warrant used excessive force against him when he answered the door, lying on top of him, using a chokehold, and using pepper spray. The jury awarded the plaintiff over $2 million in damages, which was reduced by $500,000 to $1,611,656.52 by the trial court. A federal appeals court found that the jury's award and their decision to believe the plaintiff's version of the incident were supported by the evidence, and that the officers were not entitled to qualified immunity. It rejected the officers' argument that if they mistakenly believed that the plaintiff was resisting them that they could use any amount of force as they were only entitled in that instance to use force reasonably necessary. A "reasonable officer would have known it violated clearly established law to use a chokehold on a non-resisting arrestee who had surrendered, pepper-spray him and apply such knee pressure on his neck and back that it would cause the collapse of five vertebrae in his cervical spine."It also found that the trial court failed to adequately explain its reasons for reducing the amount of attorneys' fees and in denying the plaintiff pre- and post-judgment interest, so further proceedings were required. Barnard v. Theobald, #11-16655, 2013 U.S. App. Lexis 13415 (9th Cir.).

Assault and Battery: Handcuffs

     A Californis man claimed that sheriff's deputies unlawfully arrested him and beat him during the incident while he was handcuffed and not resisting arrest. He sued under a state statute authorizing damage claims "against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual's exercise or enjoyment of rights secured by federal or state law," known as the Bane Act. The jury awarded damages on the plaintiff's claims totaling over half a million dollars, and $989,258 in attorneys' fees. A California intermediate appeals court upheld this result, rejecting an argument that the Bane Act required a showing that the "threats, intimidation, or coercion" caused a violation of a separate and distinct constitutional right in addition to a Fourth Amendment violation. The court ruled that Fourth Amendment rights are among those protected by the statute. Bender v. County of Los Angeles, #B236294, 2013 Cal. App. Lexis 536.

Assault and Battery: Physical

     A man claimed that a deputy used excessive force and tackled him as he reached for a fallen memory chip from a surveillance camera set up near a property line that including a recording of statements the man had made suggesting that he may have trespassed onto a nearby lot. The deputy, on the other hand, said that he merely grabbed the plaintiff's arm to prevent him from picking up the chip. The deputy was entitled to qualified immunity as the plaintiff did not show a violation of a clearly established constitutional right. The plaintiff had not identified any closely similar case or established that the officer's use of force was so obviously excessive as to defeat qualified immunity.  Findlay v. Lendermon, #12-3881, 2013 U.S. App. Lexis 12012 (7th Cir.).

Attorneys' Fees: For Plaintiff

     A deputy sheriff detained and handcuffed for about a minute a nine-year-old female African-American student at school following her disagreement with her teacher, to whom she allegedly made a disrespectful and supposedly threatening remark. The student was arguably compliant when the deputy approached her. A jury subsequently awarded one dollar in nominal damages. A federal appeals court subsequently ruled that the trial court abused its discretion in awarding $39,000 in attorneys' fees to the plaintiff when she had only achieved minimal results rather than the $25,000 in damages she had sought. Gray v. Bostic, #12-11819, 2013 U.S. App. Lexis 13558 (11th Cir.).

False Arrest/Imprisonment: No Warrant

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

     When officers saw a man carrying a holstered gun on his hip in public, they handcuffed and detained him for approximately 90 minutes while trying to determine the validity of a carrying license he presented, one issued mostly to security officers and private detectives that they were not familiar with. He was released when they did confirm the license was valid. The federal appeals court found that the officers were entitled to qualified immunity on an unlawful arrest claim. Even had they known about the type of license presented, it would have been reasonable under the circumstances to detain the plaintiff until they could confirm its validity. While the length of the detention may have been unfortunate, that was attributed to the government's failure to have an efficient license verification system. One of the officers, however, was not entitled to qualified immunity on a claim that a preexisting medical condition was worsened by the handcuffs being too tight. Rabin v. Flynn, #11-3904, 2013 U.S. App. Lexis 13802 (7th Cir.).

False Arrest/Imprisonment: Warrant

     A man who was mistakenly held in custody for 11 days under a bench warrant issued for another person sued the defendant counties for vicarious liability for the actions of the sheriff's deputies who allegedly falsely imprisoned him. An intermediate California appeals court found that the trial court improperly ruled for the defendant counties, relying on federal civil rights caselaw under which vicarious liability claims were not allowed. Under California state law, the counties could be sued based on vicarious liability. Rodriguez v. County of Los Angeles, #B241049, 2013 Cal. App. Lexis 525.

Federal Tort Claims Act

     Two vehicle passengers injured in an accident sought to hold a rural Alaskan city vicariously liable for their injuries that were allegedly caused by a native village tribal police officer who was certified as a federal employee for purposes of the lawsuit. The officer ordered the two minors to ride on the back of a for wheeler he was driving after he found them out in violation of curfew. They were thrown off the vehicle when he lost control of the vehicle. The vicarious liability claim was based on the theory that the city had a non-delegable duty to provide law enforcement services to the community. The officer, a federal appeals court found, was entitled to immunity from liability under both his tribe's sovereign immunity and under the Federal Tort Claims Act. The injured plaintiffs' sole remedy was against the federal government and the immunities available to the officer extended to the city. M.J. v. United States, #11-35625, 2013 U.S. App. Lexis 13416 (9th Cir.).

Firearms Related: Second Amendment

     State laws that allow New York City and Nassau County to impose a licensing fee for residential handguns that exceeds the amount of the allowable fee in all other parts of the state did not violate the Second Amendment or equal protection. The current fee in New York City is $340, while in the rest of the state it generally ranges from $3-$10. Kwong v. Bloomberg, #12-1578, 2013 U.S. App. Lexis 13798 (2nd Cir.).

Search and Seizure: Home/Business

     A bankruptcy court ordered a debtor's home vacated and federal Marshals were authorized to remove the debtor's son who was living there from the residence. He was patted down, removed, the house was searched, and he was not allowed to reenter to claim his belongings. A federal appeals court upheld the dismissal of the son's lawsuit against federal employees as he did not properly plead his case for violation of his constitutional rights against unreasonable searches and seizures. Claims against a city and its police officers in their official capacities were properly dismissed. Even if the bankruptcy court's order had been invalid, the plaintiff had not shown any direct link between a city policy or custom and the alleged violation of his rights. Alexander v. Hedback, #12-2834, 2013 U.S. App. Lexis 13302 (8th Cir.).

Sexual Assault

     A female minor sued a city and one of its officers, claiming that the officer had sexually assaulted her. The officer was criminally charged with the sexual assault and fired. A federal appeals court ruled that the plaintiff adequately raised factual issues concerning whether the city engaged in a custom of neglecting to adequately supervise, discipline and investigate its officers. The appeals court rejected the argument that only previous sexual assaults by the city's officers were relevant to show a pattern of past similar misconduct. That approach was too narrow and acts of violent misconduct by officers could be examined, not just the subcategory of sexual assault. She had shown that the police department had received many past complaints of officer violence, so summary judgment in favor of the city was vacated. Doe v. City of Marianna, #12-2052, 2013 U.S. App. Lexis 12555 (8th Cir.).

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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

     Eyewitness Identification: "A National Survey of Eyewitness Identification Procedures in Law Enforcement Agencies," Police Executive Research Forum (March 8, 2013).

     Firearms Related: "National Institute of Justice Research Report: A Review of Gun Safety Technologies," by Mark Greene (June 2013).

     Statistics: "Indicators of School Crime and Safety, 2012," by Thomas Snyder and Jennifer Truman (June 26, 2013 NCJ 241446).

Reference

Cross References

Attorneys' Fees: For Plaintiff -- See also, Assault and Battery: Chemical
Assault and Battery: Choke Holds -- See also, Assault and Battery: Chemical
Attorneys' Fees: For Plaintiff -- See also, Assault and Battery: Handcuffs
Damages: Nominal -- See also, Attorneys' Fees: For Plaintiff
Defenses: Qualified Immunity -- See also, Assault and Battery: Physical
Governmental Liability: Policy/Custom -- See also, Sexual Assault
Native American Police Officers & Agencies -- See also, Federal Tort Claims Act
Search and Seizure: Person -- See also, Search and Seizure: Home/Business

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