AELE Seminars

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

Jail and Prisoner Legal Issues
In two modules:
Module One Operational and Administrative Legal Issues
Jan. 20-21, 2014 Las Vegas
Module Two - Security and Incident Liability
Jan. 22-23, 2014 Las Vegas

Management, Oversight and Monitoring of Use of Force
Including ECW Post-Incident Forensics
Mar. 3-5, 2014 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 December
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CONTENTS

Digest Topics
Assault and Battery: Flashlight
Electronic Control Weapons: Dart Mode (2 cases)
Electronic Control Weapons: Stun Mode
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
First Amendment
Gang Activity
Public Protection: 911
Search and Seizure: Home/Business
Search and Seizure: Warrant
Sexual Assault

Resources

Cross References


AELE Seminars

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

Jail and Prisoner Legal Issues
In two modules:
Module One Operational and Administrative Legal Issues
Jan. 20-21, 2014 Las Vegas
Module Two - Security and Incident Liability
Jan. 22-23, 2014 Las Vegas

Management, Oversight and Monitoring of Use of Force
Including ECW Post-Incident Forensics
Mar. 3-5, 2014 Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Flashlight

     The Arkansas State Police were entitled to Eleventh Amendment sovereign immunity on claims arising out of a state trooper's alleged use of excessive force in striking a motorist with a metal flashlight while arresting him following a high-speed pursuit. The individual trooper, however, was not entitled to qualified immunity on the excessive force claim. The plaintiff claimed that he was hit with the flashlight after he was already on the ground and complying with the trooper's orders, and the use of force took place outside the view of the trooper's dash camera. The factual discrepancies between the trooper's and motorist's versions of the incident had to be resolved by a jury. Coker v. Arkansas State Police, #12-3601, 2013 U.S. App. Lexis 22420 (8th Cir.).

Electronic Control Weapons: Dart Mode

     An officer who fired a Taser in the dart mode against a naked man who subsequently fell from an elevated position and died was not entitled to qualified immunity from an excessive force claim, nor was the lieutenant who ordered him to do so. A reasonable fact-finder could conclude that the risk of the suspect suffering a serious injury under these circumstances was substantial and outweighed the interest in subduing him. The officers should have known that using the Taser in this manner under these circumstances was unreasonable despite the lack of prior precedent that was the same. The decedent was a man suffering from a schizoaffective disorder who was having a psychotic episode. He had been diagnosed with HIV, had stopped taking his medication, and was ten feet above the ground standing on a security gate over a store front. No warning was given before the Taser was fired. Negron v. City of New York, #09-Civ-0944, 2013 U.S. Dist. Lexis 144064 (E.D. N.Y.). In an earlier decision, the court rejected municipal liability claims, a substantive due process claim, and a state law claim for negligent infliction of emotional distress. Negron v. City of New York, #09-Civ-0944, 2012 U.S. Dist. Lexis 19906 (E.D. N.Y.). Note: The lieutenant fatally shot himself eight days after the incident.

    A lawsuit claimed that a man was killed by a police officer who fired his Taser in the dart mode without just cause, striking the man's center mass, causing cardiac capture and death. The lawsuit also claimed that the officer targeted the man's center mass despite knowledge by the city that employed him that a person's center mass should not be targeted in this manner and that the city failed to properly train its officers in the use of the Taser. The city argued that its training program taught officers not to target a person's center mass with a Taser. The trial court adopted a magistrate's recommendation that claims against the police chief be dismissed based on "threadbare facts" as to any basis for his liability, as well as a claim for injunctive relief against the continued use of Tasers, but allowed discovery to move forward on claims against the city for inadequate supervision and training, allowing more facts to be developed, with the issue of municipal liability to be revisited on summary judgment. McCarthy v. Taser International, Inc., #3:12-cv-00838, 2013 U.S. Dist. Lexis 136657 (W.D. N.C.). McCarthy v. Taser International, Inc., #3:12-cv-00838, 2013 U.S. Dist. Lexis 136690 (W.D. N.C.).

Electronic Control Weapons: Stun Mode

     An "Occupy" protester on government land in D.C. started tearing down U.S. Park Police notices from tents. The notices informed occupants that they were required to vacate the premises. He was told that he would be arrested for disorderly conduct if he did not stop his activity. He swore at police, crumpled up notices he had gathered, and threw them away. A video showed him continuing to tear down notices after being ordered to stop. As he walked away, an officer tried to grab him from behind. Then a Taser was used on him in stun mode on his back as he allegedly resisted efforts to restrain him. The court held that, under the circumstances, no reasonable jury could find that the force used was so excessive that no reasonable officer could believe that it was lawful. The use of the Taser to effect an arrest was reasonably proportionate to the difficult and uncertain situation that the officers faced. Lash v. Lemke, #12-0822, 2013 U.S. Dist. Lexis 134951 (D. D.C.).

False Arrest/Imprisonment: No Warrant

     A deputy stopped a car that belonged to an ammunition salesman. The motorist stated that he had ammunition, a .22 caliber pistol, a 9-millimeter handgun, and an AK-47 in his trunk. The deputy asked to be shown the weapons, and, once he was, arrested the motorist for violating a state weapons statute. The deputy was not entitled to qualified immunity on a false arrest claim, since, under applicable Arkansas state law, he reasonably should have known that an arrest for violation of the statute at issue required a showing that a person had a purpose "to employ the handgun, knife, or club as a weapon against a person." There was, therefore, a genuine issue of material fact as to whether he had probable cause for the arrest. Stoner v. Watlingten, #12-3383, 2013 U.S. App. Lexis 22586 (8th Cir.).

Firearms Related: Intentional Use

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

     A man went outside his mobile home at night in a rural area carrying a shotgun after hearing sounds of unknown persons outside. As he opened his front door, he was shot by police. The officers were not entitled to qualified immunity on excessive force claims, as a reasonable officer would not have probable cause to feel threatened under the circumstances, and the right to not have deadly force inflicted when a person poses no threat was clearly established. Cooper v. Sheehan, #13-1071, 2013 U.S. App. Lexis 22616 (4th Cir.).

First Amendment

     An officer who was working off-duty, but in full uniform, asked a woman to move her car from the parking lot of a bar before it was towed. The woman reacted by cursing and "speaking loudly." The officer was not entitled to qualified immunity for arresting the woman for disorderly conduct, since the facts, taken in the most favorable light for the plaintiff, showed that there was no arguable probable cause for the arrest. There is no right to arrest people exercising their right to free speech, even in a loud manner, and the officer himself admitted that the woman had used no language that was insulting or degrading, only saying "hell" and "damn," and not even directing those words at him. A sergeant who was not even on the scene, however, was granted qualified immunity for lack of personal involvement there, and only relied on the arresting officer as to there having been grounds for an arrest. Wilkerson v. Seymour, #12-15938, 2013 U.S. App. Lexis 22058, (11th Cir..).

Gang Activity

     A county district attorney obtained a public nuisance injunction against a gang and its members, seeking to abate their activities. Individuals served with the injunctive order challenged the prosecutor's and police department's alleged "dismiss-and-serve" actions. An injunction was granted against the gang and its "members, and individual defendants who had expressed a desire to challenge the action or its application to them were voluntarily dismissed from the case, arguably denying individuals the ability to challenge the order. The order, the appeals court found, profoundly impacted liberty interests protected by the due process clause and a number of factors weighed in favor of a finding that the defendants violated the plaintiffs' procedural due process right by failing to provide any form of hearing before subjecting them to the injunctive order by serving it on them. The trial court properly entered declaratory and injunctive relief in the plaintiffs' favor. Vasquez v. Rackauckas, #11-56166, 2013 U.S. App. Lexis 22464 (9th Cir.).

     Editor's Note: For more on this topic, see Use of Injunctions Against Gang Activity--Part One: Basis of and Advantage of Injunctive Relief, 2009 (10) AELE Mo. L. J. 101, Use of Injunctions Against Gang Activity--Part Two: Constitutional Challenges, 2009 (11) AELE Mo. L. J. 101, and Use of Injunctions Against Gang Activity--Part Three: Practical and Procedural Issues, 2009 (12) AELE Mo. L. J. 101.

Public Protection: 911

     A man called a county 911 line stating that another man was threatening to kick in his door and harm him, and requesting assistance. The dispatcher learned that the threatening man had apparently left and told the caller that there was therefore no longer a need for an officer to come to his home. No officer was sent and no further call was made. It was later discovered that the threatening man had robbed and killed the resident. The dead man's estate sued the county and dispatcher for wrongful death. The West Virginia Supreme Court upheld summary judgment for the defendants, who did not owe a special duty of care to the caller. Upchurch v. McDowell County 911, #12-0824, 2013 W. Va. Lexis 1149.

Search and Seizure: Home/Business

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

     Two officers responded to a call concerning a disturbance involving a person armed with a baseball bat in a neighborhood known for gang violence. A man was seen running towards a residence and ignored an order to halt. He did not appear to be holding a bat. He entered the gate of a six foot fence enclosing his front yard. The officer believable that the man had committed a jailable misdemeanor by disobeying the order to stop, and also feared for his safety. He kicked open the gate. A woman was behind the gate and was struck and injured by it. A federal appeals court found that the warrantless entry was unconstitutional as the woman had the same expectation of privacy in the curtilage of her home as in the residence itself, the pursued man had only committed, at most, a minor offense, and there was no immediate danger. The appeals court also found that the officer was not entitled to qualified immunity. Reversing, the U.S. Supreme Court noted that courts throughout the country were divided as to whether an officer who has probably cause to arrest a fleeing misdemeanant can enter a home without a warrant in hot pursuit. Without deciding whether or not the warrantless entry was constitutional, the U.S. Supreme Court ruled that while it was possible that the officer was mistaken in thinking that his actions were justified, he was not "plainly incompetent," and was therefore entitled to qualified immunity. Stanton v. Sims, #12-1217, 2013 U.S. Lexis 7773.

Search and Seizure: Warrant

     Police had a warrant to search one of two apartments on the third floor of the building. Both had rear doors opening on a common landing. Police allegedly used a battering ram to enter the wrong apartment, and entered pointing guns and screaming, handcuffed two occupants and "ransacked" the apartment, only leaving after 15 minutes when another officer told them they were in the wrong apartment. The officers claimed, however, that, while they did open the wrong door, they did not enter, immediately realizing their mistake. An independent claims adjuster and a police review authority employee found no damage except to the door. A jury rejected the plaintiff's claims. A federal appeals court upheld this result, noting that a search that results from an "innocent mistake" is not unreasonable or a violation of the Fourth Amendment. The plaintiff's alternative argument, that simply looking inside the wrong apartment would constitute a search, was rejected. Balthazar v. City of Chicago, #12-3378, 2013 U.S. App. Lexis 22744 (7th Cir.).

Sexual Assault

    A police officer was assigned to take a female shoplifting suspect to court, but instead allegedly coerced her to perform oral sex in the front seat of his police car. A trial court had granted summary judgment to the State of Delaware on the basis of a conclusion that no reasonable jury could find that the officer was acting within the scope of his employment in coercing sex. The Supreme Court of Delaware found that the sexual nature of the wrongdoing was not dispositive of whether the officer acted in the scope of his employment, noting that the officer was on duty, in uniform, was carrying out a police duty of supposedly transporting the woman to court, and the alleged sexual assault took place in a police car. This satisfied a number of factors used in judging whether the officer acted within the scope of his employment, for which the state could be liable. Further proceedings were required for a jury to determine whether the officer was activated in part to serve his employer and whether the use of force was not unexpected, and whether the officer therefore acted within the scope of his employment. Doe v. Delaware, #447, 2013 Del. Lexis 469.

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AELE Seminars

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

Jail and Prisoner Legal Issues
In two modules:
Module One Operational and Administrative Legal Issues
Jan. 20-21, 2014 Las Vegas
Module Two - Security and Incident Liability
Jan. 22-23, 2014 Las Vegas

Management, Oversight and Monitoring of Use of Force
Including ECW Post-Incident Forensics
Mar. 3-5, 2014 Las Vegas

Click here for more information about all AELE Seminars


Resources

     Dogs: Police and Dog Encounters: Liability, Reporting & Documentation, National Canine Research Council (2013). (10 minute video).

     Kidnapping: "Abduction by Vehicular Assault," by James O. Beasley II and Jennifer D. Eakin, FBI Law Enforcement Bulletin (Oct.-Nov. 2013).

     National Security Issues: DoD Evaluation of Over-Classification of National Security Information (Redacted), Inspector General Department of Defense (Sept. 30, 2013).

Reference

Cross References
Defenses: Eleventh Amendment Immunity -- See also, Assault and Battery: Flashlight
False Arrest/Imprisonment: No Warrant -- See also, First Amendment
Search and Seizure: Home/Business -- See also, Search and Seizure: Warrant
U.S. Supreme Court Cases -- See also, Search and Seizure: Home/Business

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