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Domestic Violence

     A woman had a protective order requiring a man who had been convicted of domestic abuse to stay away from her and her home. She told a police officer that the man had been violating the order by calling and visiting her home. When the officer said that he would contact the man to get his side of the story, the woman told him that if he did so without arresting the man, it was very likely that the man would come to her home and violently retaliate. That was exactly what happened, and the man broke into her home and shot her three times after being questioned by an officer. A federal appeals court rejected her substantive due process/state created danger claim against the officer, as the officer was facing conflicting versions of what had happened and whether the man had violated the protective order, and his decision not to arrest him was therefore not conscience shocking. Nothing that this and other officers did or failed to do showed a state created danger or the existence of a special relationship imposing a duty to protect. There was also nothing to show that officers who responded to the incident were deliberately indifferent to the woman's injuries. The appeals court reversed, however, summary judgment for the State of Iowa, a halfway house where the man resided, and the director of that facility, on claims that they were deliberately indifferent to the man's history of violating a protective order. The plaintiff did not have notice that the trial court was considering summary judgment for the state defendants and no opportunity to make legal arguments on these claims. Montgomery v. City of Ames, #13-2111, 2014 U.S. App. Lexis 6572 (8th Cir.).

Electronic Control Weapons: Dart Mode

     When a man died after an officer fired a Taser in the dart mode against his chest, claims against the Taser manufacturer for products liability and negligence failed. A failure to warn claim failed as a matter of law because the plaintiff did not establish on the record that an additional warning would have changed the behavior of the officers involved. It was not an abuse of discretion to exclude the plaintiff's expert's testimony on the issue of whether a different or additional warning would have altered the officer's actions under the existing circumstances; even if the court were to conclude that there was a legitimate jury question as to whether the officer had been made aware of the specific risk of cardiac danger when the Taser was fired directly at the subject's chest. Such a conclusion would be rebuttable by undisputed evidence in the record that the officer had not been instructed on the available warnings and did not heed the limited training he had received. There was no evidence that the Taser was unreasonably dangerous as designed. Bachtel v. TASER Int'l, Inc., #13-1445, 2014 U.S. App. Lexis 6140 (8th Cir.). Claims for excessive force and deliberate indifference arising out of the same incident in a separate lawsuit against the city, an officer, and a sergeant settled in June 2009 for $2.4 million. Bachtel v. City of Moberly, Missouri, #2:08-CV00049, U.S. Dist. Ct. (E.D. Mo. June 24, 2009).

Failure to Disclose Evidence

     A man who spent 20 years on death row for a murder conviction was granted release because the prosecutor had violated his obligations to disclose exculpatory evidence. During an attempted reprosecution, the failure to disclose exculpatory evidence continued, and the prosecutor failed to alert either the defense or the court that the key prosecution witness had died. The court barred the state from further prosecution efforts based on extraordinary circumstances. The state conviction was never vacated, but the man's release was granted by habeas corpus relief. A federal appeals court held that the prosecutors had absolute prosecutorial immunity from civil liability for failing to disclose exculpatory evidence. It further ruled that the complaint's allegations were insufficient to establish that there was an official county policy of violating the constitutional rights of criminal defendants. A police detective had no obligation to make disclosures to the defense, and there was no claim that he withheld any information from the prosecution. D'Ambrosio v. Marino, #13-3118, 2014 U.S. App. Lexis 5588, 2014 Fed App. 55P (6th Cir.).

     Editor's Note: For more on this topic, see Civil Liability for Police Failure to Disclose Exculpatory Evidence, 2009 (9) AELE Mo. L. J. 101.

False Arrest/Imprisonment: No Warrant

     A deputy pulled a female motorist over for an expired vehicle registration sticker, and the date on the sticker was different than that in the Secretary of State's records, so she was let go. The deputy was later notified that the sticker was stolen, a felony offense, and went to the woman's home to arrest her, being met there by a second deputy. The woman's boyfriend, who owned the house, answered the door and refused to let the deputies enter without a warrant. The deputies said that they smelled an odor of burning marijuana from inside the home, and they attempted to enter, which the boyfriend resisted. He was found with a half-burnt marijuana joint and was charged with resisting or obstructing an officer, a charge that was later dismissed. The trial court held that the officers were not entitled to qualified immunity on false arrest and excessive force claims, as there had been no exigency justifying a warrantless entry, which violated a clearly established right. A federal appeals court reversed, stating that there was "fractured" caselaw on whether detecting the smell of marijuana justified a warrantless entry, so that it was not clearly established at the time of the incident that a warrantless entry was not justified. White v. Stanley, #13-2131, 2014 U.S. App. Lexis 4467 (7th Cir.).

False Arrest/Imprisonment: Warrant

     A man had the same first and last name as another man sought under two arrest warrants. He was first arrested by mistake under a 1985 arrest warrant and released, and then mistakenly arrested under a 1989 arrest warrant and detained for approximately a month. The officers' belief that the plaintiff was the true subject of the warrants was not unreasonable under the Fourth Amendment, and his detention did not violate due process. The 1989 warrant had both a name and a detailed description of the suspect sought. The plaintiff failed to show that the county had a policy or custom of failing to include more detailed descriptions on arrest warrants to avoid the risk of repeated misidentifications. As to state law claims, the defendant employees involved could invoke statutory immunity under California law. Summary judgment for all defendants was granted. Rivera v. County of Los Angeles, #11-57037, 2014 U.S. App. Lexis 4646 (9th Cir.).

Firearms Related: Intentional Use

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

     Police went to a man's home after his wife called 911, concerned that he might have taken an overdose of sleeping pills. He had committed no crime and the officers were not there to arrest him. After breaching the barricaded door to his bedroom, an officer shot three times and killed the man when he raised a knife above his head and advanced towards the police. The entire incident was recorded by cameras in two Tasers carried by the officers. Prior to firing guns, a Taser was fired in the dart mode at the man while he was still in his bed but disobeying orders to put the knife down, but one of the two darts missed him, and no electric shock was administered. When the man stood up, a second Taser was fired in the dart mode, but also failed to work, as the man was not incapacitated, and verbally indicated that he would not drop the knife, then raised above his head in a stabbing position. The use of deadly force was justified by the man's actions causing the officers to reasonably fear for their safety. The officer's version of the incident was confirmed by the Taser video evidence. The entry into the bedroom was justified by the wife's consent. The appeals court stated that it was expressing no opinion about the appropriateness of the officer's conduct prior to the shooting. The officers were entitled to qualified immunity for the use of deadly force and municipal liability claims against the city were also properly dismissed. Harris v. Serpas, #13-30337, 2014 U.S. App. Lexis 4643, 2014 WL 960843 (5th Cir.).

     A motorist led police on a high speed chase for approximately 45 minutes before his vehicle could be disabled. When he then exited his truck, in a period of four minutes he attempted to seriously hurt himself, tried to provoke the officers to shoot him, threw rocks at the officers, and ignored orders to stop, moving forward to the officers while threatening them with a rock that was football size held over his head. Under these circumstances, the officers were entitled to qualified immunity for shooting and killing him, as it was objectively reasonable for them to fear immediate serious physical harm. The fact that he might have intended to commit "suicide by cop" did not alter the fact that the officers acted reasonably. Lal v. California, #2-15266, 2014 U.S. App. Lexis 5890 (9th Cir.).

First Amendment

     A city ordinance generally prohibiting targeted picketing within 50 feet of a residential dwelling did not violate the First Amendment. It was content neutral, furthered a significant governmental interest, was narrowly tailored to serve that interest, and left open ample alternative methods of exercising free speech. A section of the ordinance prohibiting loitering on a public forum such as a sidewalk abutting a private residence gave private individuals impermissible unbridled discretion to invoke the city's power to regulate speech there and was therefore facially unconstitutional. Bell v. City of Winter Park, FL, #13-11499, 2014 U.S. App. Lexis 5250, 24 Fla. L. Weekly Fed. C 1119 (11th Cir.).

Search and Seizure: Home/Business

     Police did not exceed the scope of the consent a homeowner gave them to be in the basement of his home to look for a possible gas leak when they had to walk through a portion of the basement to access another room. A search warrant subsequently issued was not without probable cause since it was supported by an affidavit with details of the officers' observations of allegedly illegal sawed off shotguns they had seen. There was no evidence of either deliberate falsehood or reckless disregard for the truth in obtaining the search warrant. Officers subsequently had probable cause to arrest the homeowner on state law gun charges, despite the fact that he was later acquitted. Fagnan v. City of Lino Lakes, #12-4038, 2014 U.S. App. Lexis 4372 (8th Cir.).

Search and Seizure: Vehicle

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

     A police officer was not entitled to qualified immunity for continuing the detention of two vehicle occupants and carrying out the search of their persons and of the car, as well as having a drug sniffing dog smell around the car. The limited investigation allowable after a traffic stop had ended when the driver was given a warning. Any supposed consent was coerced as no reasonable person would feel free to leave during the continued investigation while the vehicle was detained. The continued investigation was not based on any reasonable suspicion of criminal activity, nor was there any reason to believe that either the driver or the passenger were armed and dangerous. Huff v. Reichert, #13-1734, 2014 U.S. App. Lexis 4446 (7th Cir.).

•Return to the Contents menu.

     Crimes: Laser Attacks Against Aircraft: A Threat to Citizens and Law Enforcement Personnel. by Gregory McMahon, FBI Law Enforcement Bulletin (April 2014).

     Extremist Activity: Building Resilience to Violent Extremism: One Community's Perspective, by Stevan M. Weine and John G. Horgan, FBI Law Enforcement Bulletin (April 2014).

     Statistics: Crime Against Persons with Disabilities, 2009-2012 - Statistical Tables, by Erika Harrell. Bureau of Justice Statistics (February 25, 2014) NCJ 244525.

Reference

• Abbreviations of Law Reports, laws and agencies used in our publications
• AELE's list of recently-noted civil liability law resources.