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Lethal and Less Lethal Force
Oct. 13-15, 2014 Orleans Hotel, Las Vegas

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Dec. 15-17, 2014 Orleans Hotel, Las Vegas

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2014 LR March
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CONTENTS

Digest Topics
Assault and Battery: Physical
Failure to Disclose Evidence
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
Freedom of Information
Negligence: Vehicle Related
Off-Duty/Color of Law: Firearms
Parking Tickets & Traffic Offenses
Pursuits: Law Enforcement
Search and Seizure: Warrant

Resources

Cross References


AELE Seminars

Lethal and Less Lethal Force
Oct. 13-15, 2014 Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2014 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     A man claimed that officers attacked him while he was standing on his porch in his yard, without specifying which officers did what. The officers and a neighbor who had called police, believing him to be intoxicated, testified that he had lunged at an officer, after which he was taken down and arrested. A video of the incident showed the plaintiff hitting his head against the cage of the patrol car several times, contradicting his version of the incident. Summary judgment was granted on state law negligence and battery claims. The officers were not entitled to qualified immunity on federal civil rights claims of excessive force. Because the officers failed to concede to the version of the facts most favorable to the plaintiff, there was a disputed issue of material fact barring a decision on appeal.    Younes v. Pellerito, #3-1103, 2014 U.S. App. Lexis 385, 2014 Fed. App. 7P (6th Cir.).

Failure to Disclose Evidence

     The plaintiff, who had pled guilty to criminal charges, filed a federal civil rights lawsuit claiming that he had improperly been denied access to exculpatory evidence that had a reasonable probability of affecting the outcome of his trial. A federal appeals court, ruling en banc, vacated summary judgment for the defendants. The court found that the guilty plea did not bar his claim concerning the withholding of evidence since his claim did not necessarily imply that his guilty plea was invalid. Additionally, he had successfully brought a state collateral attack on his conviction for second degree murder based on the withholding of evidence and then pled guilty to a lesser charge of attempted robbery, resulting in his release for time served. Poventud v. City of New York, #12-1011, 2014 U.S. App. Lexis 864 (en banc 2nd Cir.). The en banc court declined to reach the issue, decided by a appeals court panel, as to whether the claim was not barred because of the fact that the plaintiff could no longer bring a habeas corpus action since he was no longer in custody. Poventud v. City of New York, #12-1011, 715 F.3d 57 (2nd Cir. 2013).

False Arrest/Imprisonment: No Warrant

     If an arrested hunter's version of events were true (that he had not yelled or spoken in a confrontational manner to a game warden), then a brief unintentional touching did not provide probable cause or even arguable probable cause for an arrest. The game warden was therefore not entitled to qualified immunity on the false arrest claim. He was, however, entitled to qualified immunity on the plaintiff's claim that the handcuffs were too tight, causing him injuries and later contributing to his development of carpal tunnel syndrome. Rooni v. Biser, #13-1511, 2014 U.S. App. Lexis 2135 (7th Cir.).

Firearms Related: Intentional Use

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

     A man sought under a warrant engaged in a six-hour stalemate at his house with officers seeking to arrest him. He was armed with a semi-automatic handgun. When he walked into his yard carrying water and a cup, an emergency response team activated a flash bang device to distract him and to try to prevent him from again retreating inside the house. The officers said that he turned and tried to draw his gun and they then shot him multiple times. He claimed that he did not reach for his gun until after the device went off and shots were already fired. He later pled guilty to resisting the officers with a deadly weapon. A federal appeals court held that his excessive force claim was barred because his version of events would necessarily imply the invalidity of the conviction. Under the facts needed to support the conviction, the officers acted reasonably, and the conviction had not been set aside. Helman v. Duhaime, #12-3428, 2014 U.S. App. Lexis 2302 (7th Cir.).

Freedom of Information

     A public interest foundation challenged the denial of its Freedom of Information request for the disclosure of a legal opinion presented to the FBI by the Office of Legal Counsel concerning the legality of certain information gathering techniques. Upholding the denial, a federal appeals court ruled that the document at issue was covered by a deliberative process privilege under an exemption to the Freedom of Information Act, since it was an advisory opinion, recommendation, and deliberation, and those rendering the opinion did not have the authority to establish the "working law" of the FBI. It was also not shown that the FBI had adopted the document as its own reasoning. Electronic Frontier Found. v. Dept. of Justice, #12-5363, 739 F.3d 1 (D.C. Cir. 2014).

Negligence: Vehicle Related

     In a lawsuit for wrongful death arising out of a collision between a police squad car and a minivan, the trial court erred in admitting into evidence a line of site video produced by the defense during an experiment. The defendant officer did not show that the essential conditions concerning the driver's line of site at the time of the accident were substantially similar to the conditions that were present when the experiment was conducted. The admission of the tape prejudiced the plaintiffs and a limiting instruction given by the court was inadequate to inform the jury that the limited purpose of the video only related to line of site as the basis for the opinion of an expert witness testifying for the defense. Lorenz v. Dayton, 2014 IL App.(3d) 130137, 2014 Ill. App. Lexis 55.

Off-Duty/Color of Law: Firearms

     An off duty officer fired his gun at a man during an argument over the officer's former girlfriend. He missed. The officer told other officers who arrived on the scene that the other man had hit him with a baseball bat. Charges against the man were dismissed and he sued the city, the off duty officer, and the arresting officers. The city was dismissed prior to the trial as no basis for municipal liability was shown, with the trial judge finding none of the city's policies at issue inadequate. The jury rejected all other claims except the claim against the off duty officer for firing the shot, awarding $1 in nominal damages and $3,000 on punitive damages. The appeals court upheld an award of $123,000 of attorneys' fees to the plaintiff, out of $675,000 requested, finding it generous since the plaintiff only prevailed on one out of 39 claims. The attorneys' fees were only awarded against the off-duty officer, and the plaintiff was properly ordered to pay the city's costs, since he had not prevailed against the city. Under state law, the city had to indemnify the off-duty officer for the $1 in nominal damages, but not for the punitive damages award. Richardson v. City of Chicago, #13-2467, 2014 U.S. App. Lexis 1195 (7th Cir.).

Parking Tickets & Traffic Offenses

     A class action was filed challenging the issuing and form of automated speeding tickets issued under a state speed camera statute. Rejecting the plaintiffs' claims, a federal appeals court found that service of the speeding citations via first class mail satisfied due process, that the automated citation process used did not violate due process, and that the citations could be used as evidence at trial. Any flaws in the enforcement process could have been raised in the state court, where there was an adequate opportunity to do so, but the drivers failed to raise such issues there. Snider International Corporation v. Town of Forest Heights, #12-2490, 739 F.3d 140 (4th Cir. 2014).

Pursuits: Law Enforcement

     The estate of a pursued motorist who died when his vehicle veered off the road during a high speed pursuit claimed that the defendant officer used excessive force by intentionally colliding with the decedent's car during the chase. The officer's motion for summary judgment was upheld, based on the testimony of three expert witnesses who said that the scratches on the officer's car did not match those on the decedent's car and that no reasonable jury could conclude that the police car had actually collided with the decedent's vehicle. Wourms v. Fields, #13-1178, 2014 U.S. App. Lexis 2221 (7th Cir.).

Search and Seizure: Warrant

     The defendants were not entitled to summary judgment on the basis of qualified immunity for alleged Fourth Amendment violations stemming from omissions from an investigator's application for a search warrant for the plaintiff's residence. The two alleged material omissions from the affidavit were the identity of the plaintiff as the resident of the property and the fact that surveillance of the property had not led to any observation of criminal activity. These facts, if known but omitted, would undermine probable cause for the search, altering the weight that would have been given in assessing the information given by a confidential informant and raising a disputed issue of fact. McColley v. County of Rensselaer, #12-2220, 2014 U.S. App. Lexis 1124 (2nd Cir.).

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AELE Seminars

Lethal and Less Lethal Force
Oct. 13-15, 2014 Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2014 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Disability Discrimination: The Justice Department has published a Notice of Proposed Rulemaking (NPRM) intended to revise the Department's Americans with Disabilities Act (ADA) title II and title III regulations to implement the requirements of the ADA Amendments Act of 2008. The comment period for the proposed rule closes on March 31, 2014.

     Native American Law Enforcement: "Tribal Jurisdiction over Nonmembers: A Legal Overview," Congressional Research Service (Nov. 2013).

     Search and Seizure: "Knock and Talks," Point of View, pgs 15-18 (Alameda County District Attorney's Office, Winter 2014).

     Technology: "Operation Candid Camera: Rialto Police Department's Body-Worn Camera Experiment," by William Farrar, Chief of Police, Rialto, California Police Department, Police Chief (January 2014).

Reference

Cross References

Assault and Battery: Flash Bang Devices -- See also, Firearms Related: Intentional Use
Attorneys' Fees: For Plaintiffs -- See also, Off-Duty/Color of Law: Firearms
Search and Seizure: Home/Business -- See also, Search and Seizure: Warrant

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