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Oct. 13-15, 2014 Orleans Hotel, Las Vegas

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

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Jan. 12-15, 2015 -- 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 July
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CONTENTS

Digest Topics
Defenses: Qualified Immunity
Dogs
Electronic Control Weapons: Dart Mode
Firearms Related: Intentional Use
First Amendment
Police Plaintiff: Training Injuries
Racial Discrimination
Search and Seizure: Home/Business
Search and Seizure: Person
Search and Seizure: Vehicle
Video By Citizens

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

Jail and Prisoner Legal Issues
Jan. 12-15, 2015 -- Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Defenses: Qualified Immunity

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

     The U.S. Supreme Court has ruled that officers did not use excessive force when they shot the driver of a vehicle fleeing from a traffic stop to end a dangerous high-speed car chase. Both the driver and his passenger died. While the Court ruled that this conduct did not violate the Fourth Amendment, even if it had, the officers were entitled to qualified immunity when no cases were cited that clearly established the unconstitutionality of using deadly force to end a high-speed car chase. Firing a total of 15 shots during the 10-second span was reasonable when the driver never abandoned his attempt to flee. While ordinarily, a trial court order denying summary judgment is not a final decision and therefore not immediately appealable, a denial based on a qualified immunity claim can be immediately appealed, and therefore the federal appeals court had jurisdiction to hear the appeal, but erroneously did not grant the officers qualified immunity. Plumhoff v. Rickard, #12-1117, 2014 U.S. Lexis 3816

Dogs

     A man claimed that while he was sleeping on the ground outside, two police officers came upon him and caused their K-9 dog to bit bite him in the face, arm, and leg. He further claimed that one of the officers used a Taser on him until he was unconscious. The officers said that the plaintiff fled from a traffic stop in his vehicle, and fled his vehicle after colliding with a tree, running in the woods where officers with a K-9 dog found him, and the dog released him when an officer told him to stop fighting with the dog. The officers denied using a Taser during the incident, and the plaintiff did not mention Taser use when receiving medical attention for wounds from the dog. He claimed that a later medical record supported a subjective complaint of a Taser injury, but a nurse's assessment attributed his injuries to dog bites. A federal magistrate recommended that claims against four defendants, including a supervisor, be dismissed because they had no personal involvement in the incident. The magistrate also recommended rejection of claims concerning the supposed use of a Taser, as the plaintiff's injuries were due to dog bites. The magistrate also recommended that claims relating to the use of the dog be rejected, as using the dog was reasonable under the circumstances, so there was no constitutional violation. The trial judge subsequently adopted the magistrate's recommendations and report as its opinion. Clark v. Miller, #1:12cv216, 2014 U.S. Dist. Lexis 71140 (S.D. Miss.). Clark v. Miller, #1:12cv216, 2014 U.S. Dist. Lexis 71139 (S.D. Miss.).

Electronic Control Weapons: Dart Mode

     Officers responded to a 911 call reporting a situation in which an ex-boyfriend was allegedly brandishing a rifle in an argument with his former girlfriend after having been released from jail on a domestic abuse charge. An officer encountering the man running in the area, with no rifle visible, ordered him to the ground and used force to try to get him down when he did not obey, including kicking and punching. The man fled over a wood fence. Four officers eventually caught him, but he continued to resist, gabbing the fence to try to pull himself up. They punched and kneed him, struck him in the back with the butt of a shotgun, lay on top of him, and repeatedly used a Taser in the dart mode on him in an attempt to subdue him. They managed to use three sets of handcuffs to connect his arms behind his back, and rolled him over. He was not breathing and he died. No weapon was seen during the encounter, and none was found.

    The officer involved in the initial encounter was entitled to qualified immunity, as a reasonable officer would not have known that a decision to kick and hit the resisting man in an attempt to detain him clearly violated the Fourth Amendment. The officers involved in the second encounter were also entitled to qualified immunity as the plaintiff failed to show that any of the force used was unconstitutional. Further, even if it had been unconstitutional, that was not clearly established at the time under these circumstances. There was insufficient evidence that the officers intentionally apprehended the decedent in a manner that they believed was prohibited by law. A state law wrongful death claim and a vicarious liability claim against the defendant city were both also rejected, with official immunity applied to these claims. Smith v. City of Minneapolis, #13-1157, 2014 U.S. App. Lexis 10538 (8th Cir.).

Firearms Related: Intentional Use

     An autistic Muslim man was shot and killed by a police officer after allegedly lunging at him with a knife. In a lawsuit by his family, his estate, and thee organizations, it was also claimed that the coroner took custody of his body but did not notify his family until twenty-one days later and the delay prevented his family from burying him in accordance with the religions customs of Islam. A jury awarded $1 million in excessive force damages to the estate, which was struck by the trial judge. $700,000 in state law wrongful death damages was also awarded. A federal appeals court reversed in part, finding that a California state statute disallowing awards for pre-death pain and suffering did not apply to a federal civil rights excessive force claim. The trial court erroneously erred in dismissing certain state law claims as duplicative, as under state law, an award of a multiplier of the attorneys' fees could be awarded, something not available on the federal claims. Substantive due process and intentional infliction of emotional distress claims brought by the decedent's siblings were properly rejected. A negligence claim against the coroner for failure to provide timely notice of the death was reinstated, as there was a mandatory duty under state law to make a reasonable effort to locate the decedent's family. The coroner did not, however, violate equal protection, as he did not act with intent to discriminate on the basis of religion, and he did not deprive the parents of a property right. Chaudhry v. City of Los Angeles, #11-55820, 2014 U.S. App. Lexis 9208 (9th Cir.), and 2014 U.S. App. Lexis 9226 (Unpub. 9th Cir.).

First Amendment

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

     The U.S. Supreme Court unanimously held that Secret Service agents who moved protesters away from a location where President George W. Bush was dining on an outside patio were entitled to qualified immunity on First Amendment viewpoint discrimination claims. It ruled that a federal appeals court had erred in finding that viewpoint discrimination could be inferred from the alleged lack of a legitimate security rationale for the different treatment given to two groups of demonstrators present at the event. The anti-Bush demonstrators, the agents could believe, posed a potential security risk to the President, based on their particular location, while the demonstrating Bush supporters, based on their location, did not. As the anti-Bush demonstrators, unlike the pro-Bush demonstrators, were within weapons' range, it could not plausibly be shown that the agents could show no rationale for requesting or ordering the eviction of the anti-Bush demonstrators. Wood v. Moss, #13-115, 2014 U.S. Lexis 3614.

Police Plaintiff: Training Injuries

     The Washington State Patrol appealed a trial court's denial of its motion for summary judgment in a lawsuit brought by a trooper for alleged deliberately intentional infliction of "certain injury" from being shot with a Taser in the dart mode during training. An intermediate state appeals court, finding that the plaintiff had presented a genuine issue of material fact on his claim that the defendant intentionally inflicted "certain injury," upheld the denial of summary judgment and remanded the case for trial. The Taser exposure caused the plaintiff instant temporary pain, discomfort, trouble breathing, and incapacitation. He was later diagnosed with a fracture in his vertebrae and a "bulged disc."

     The court said that the description, by the person responsible for developing the training program, of the Taser's "most typical effect's, together with the Taser manufacturer's warning that Taser probes cause "wounds," were sufficient evidence of "certain injury" to create a material issue of fact as to that claim allowing a lawsuit despite the providing of workers' compensation benefits. Under state law, workers' compensation immunity from an injury lawsuit does not apply if an employer knows of and willfully disregarded certain injury. This exception does not depend, the court ruled, on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this "certain injury." Whether the defendant willfully disregarded that injury would occur was a question of fact for the factfinder. Taken in the light most favorable to the plaintiff, the evidence submitted could be interpreted as showing that the employer knew that the mandatory Taser training would certainly cause the injuries of the probes inflicting wounds and the exposure to an electrical current, yet disregarded this by still requiring the training. Michelbrink v. Wash. State Patrol, #44035-1-II, 2014 Wash. App. Lexis 973.

Racial Discrimination

     A man who previously worked as a confidential drug informant sued a DEA agent and city police for false drug charges allegedly brought against him, claiming malicious prosecution, abuse of process, and deprivation of (and conspiracy to deprive him of) his constitutional rights on the basis of race or color. The DEA agent was entitled to absolute immunity for his allegedly false grand jury testimony against the plaintiff. The alleged cooperation between the DEA agent and the city police did not support an inference that they acted for an improper motive, and no discriminatory animus was shown. Abuse of process, malicious prosecution, and racial discrimination claims were all rejected. Morales v. City of New York, #13-2126, 2014 U.S. App. Lexis 9157 (2nd Cir.).

Search and Seizure: Home/Business

     When an officer went directly through the back of the plaintiffs' property in entering without a warrant to search for a suspect, rather than beginning his visit at their front door, the "knock and talk" exception to the warrant requirement was inapplicable. The plaintiffs were entitled to judgment as a matter of law on their unlawful entry claim as to the officer's entry into the property's curtilage. The jury properly, however, returned a verdict in favor of the officer on a claim that he unlawfully seized one of the plaintiffs, as there was evidence from which they could rationally believe that the officer had reasonable suspicion allowing him to momentarily question the man to determine his identity and justifiably grabbed his arm to accomplish the stop. Carman v. Carroll, #13-2371, 2014 U.S. App. Lexis 9039 (3rd Cir.).

Search and Seizure: Person

     Two officers were not entitled to qualified immunity or summary judgment on Fourth Amendment claims arising out of a doctor's forcible non-consensual removal of a plastic baggie containing cocaine base from the plaintiff's rectum. The doctor's actions could be attributed to the officers if the jury determined as alleged, that the officers gave false information to the hospital staff and doctor about the plaintiff's medical condition and encouraged as well as actively physically assisted the doctor in carrying out the removal. A jury could find that the doctor's actions violated the plaintiff's Eighth Amendment rights. Fourteenth Amendment due process claims were rejected as no prior case law showed a Fourteenth Amendment violation under similar circumstances. George v. Edholm, #11-57075, 2014 U.S. App. Lexis 9798 (9th Cir.).

Search and Seizure: Vehicle

     A police officer allegedly made a "high-risk" stop of a woman's vehicle, which he mistakenly identified as stolen based on an automatic license plate reader's error. She was detained for up to 20 minutes at gunpoint, forced to her knees, and handcuffed. The dismissal of the lawsuit was reversed, as a rational jury could find for the plaintiff on her wrongful seizure, false arrest, or excessive force claims. Qualified immunity was not available as the court could not say, as a matter of law, that the officer could have reasonably believed that the force used was lawful under the alleged circumstances. There was no indication at the scene of the incident that the motorist posed any threat. Green v. City and County of San Francisco, #11-17892, 2014 U.S. App. Lexis 8824 (9th Cir.).

Video By Citizens

     Under an arrestee's version of the facts, she had a clearly established First Amendment right to film police carrying out a traffic stop in public. There was no reasonable restriction imposed or in place, as there was not even a police order to leave the area or stop filming. The officers were not entitled to qualified immunity for arresting her for wiretapping in alleged retaliation for her trying to film the officer making a late night traffic stop. Gericke v. Begin, #12-2326, 2014 U.S. App. Lexis 9623 (1st 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

Jail and Prisoner Legal Issues
Jan. 12-15, 2015 -- Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Firearms Related: Dealing with an Armed Populace--Suspect Control in the Age of Open and Concealed Carry, by John J. Knoll, Police Chief Magazine (June 2014).

     Search and Seizure: The Constitutionality of Stop-and-Frisk in New York City, by David Rudovsky & Lawrence Rosenthal, 162 U. Pa. L. Rev. Online 117 (2013).

     Search and Seizure: Investigative Contacts, Point of View, Alameda County District Attorney's Office, California (Winter 2014).

Reference

Cross References
Abuse of Process -- See also, Racial Discrimination
Assault and Battery: Physical -- See also, Electronic Control Weapons: Dart Mode
Assault and Battery: Physical -- See also, Search and Seizure: Vehicle
Damages: Compensatory -- See also, Firearms Related: Intentional Use
Defenses: Absolute Witness Immunity -- See also, Racial Discrimination
Domestic Violence -- See also, Electronic Control Weapons: Dart Mode
Firearms Related: Intentional Use -- See also, Defenses: Qualified Immunity
First Amendment -- See also, Video By Citizens
Malicious Prosecution -- See also, Racial Discrimination
Negligence: Dead Body Identification/Handling -- See also, Firearms Related: Intentional Use
Pursuits: Law Enforcement -- See also, Defenses: Qualified Immunity
Search and Seizure: Person -- See also, Search and Seizure: Home/Business
U.S. Supreme Court Cases -- See also, Defenses: Qualified Immunity
U.S. Supreme Court Cases -- See also, First Amendment

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