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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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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 September
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CONTENTS

Digest Topics
Attorneys' Fees: For Plaintiff
False Arrest/Imprisonment: No Warrant (2 cases)
Firearms Related: Intentional Use (2 cases)
Homeless Persons
Malicious Prosecution
Search and Seizure: Search Warrants
Search and Seizure: Vehicle
Video Taping 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

Attorneys' Fees: For Plaintiff

    An anti-abortion protester successfully sued a county sheriff's office for violation of First Amendment rights by requesting that graphic signs with disturbing pictures of aborted fetuses not be displayed in a public demonstration. While injunctive relief was awarded, no damages were awarded against individual defendants because of qualified immunity. In Lefemine v. Wideman, #12-168, 133 S. Ct. 9, 10 (2012), the U.S. Supreme Court held that the plaintiff was still a prevailing plaintiff fo purposes of an award of attorneys' fees. On remand, the trial court abused its discretion by denying the plaintiff an award of attorneys' fees. The presence of qualified immunity, the nature of the relief granted, and the absence of a policy or custom of discrimination were not enough, individually or taken together, to deny an award of such fees. Lefemine v. Wideman, #13-1629, 2014 U.S. App. Lexis 13218 (4th Cir.).

False Arrest/Imprisonment: No Warrant

     Police responded to a 911 call regarding a verbal argument between a man and his girlfriend. The man had locked the woman out, with her keys inside the apartment, but no physical attack had occurred. The man did not want to talk to the officers. One of them prevented him from closing the door, entered his home, and refused to leave. The man called his attorney and did not comply with a demand that he get off the phone. An officer told him that he was under arrest, and two officers each grabbed one of his wrists, resulting in a struggle on the floor. The officers lacked consent, a warrant, or exigent circumstances to enter the home, and they lacked probable cause to arrest him for theft of his girlfriend's keys. There was, however, a disputed issue of fact as to whether the officers had probable cause to arrest the plaintiff for disorderly conduct, as the arrestee denied that he had yelled at the officers. Hawkins v. Mitchell, #13-2533, 2014 U.S. App. Lexis 11906 (7th Cir.).

     An officer had at least arguable probable cause to arrest a man for trespass for refusal to leave a bus stop after he was observed waiting there without getting on any bus, so the officer was entitled to qualified immunity. While the plaintiff described being pepper sprayed as painful, there was insufficient evidence of more than "de minimus" (minimal) injury, so the officer was entitled to qualified immunity on an excessive force claim. The officer was not entitled, however, to qualified immunity on a retaliatory use of force claim, as he argued that the pepper spray had been used in retaliation for his protected First Amendment speech of asking for the officer's badge number. Peterson v. Kopp, #12-3776, 754 F.3d 594 (8th Cir. 2014).

Firearms Related: Intentional Use

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

     The city of Albuquerque, New Mexico has been ordered to pay over $6 million for the death of a schizophrenic man shot and punched by officers in his backyard. The trial judge ruled that the officers were not acting in self-defense when they shot the man in the back at close range while serving an arrest warrant arising out of a carjacking case. Police said that the man tried to punch one of the officers and grabbed his gun during an altercation in the back yard. The trial judge stated that the officers failed to present their arrest warrant during the confrontation and also failed to contact a Crisis Intervention Team officer or the man's family before confronting him. The court found that the two police detectives engaged in an "unnecessary escalation of events," and that their own "aggressive acts" at the home created the "unnecessarily dangerous situation" in which the man was shot to death. Torres v. Albuquerque Police Dept., #D-202-CV-2011-06551, Second Judicial District, County of Bernalillo, New Mexico (June 10, 2014).

     Editor's Note: The U.S. Department of Justice on April 10, 2014 issued a report on its investigation into the alleged use of excessive force, including deadly force by the Albuquerque New Mexico Police Department, making recommendations for remedial measures. On July 24, 2014, the city and the Justice Department issued a three page joint statement of principles in which the city agreed that there was a need for systemic reform in its police department in relation to the use of force.

     Officers did not use excessive force in shooting and killing a 16-year-old motorist at the conclusion of a car chase. The officers initially were responding to an activated burglar alarm at a liquor store before the car chase began, and when one of the officers exited his vehicle, the teenager drove towards him. Under these circumstances, a reasonable officer would have believed that the motorist posed a threat of serious physical harm to the officer his car was advancing on, justifying the use of deadly force. The officers were entitled to qualified immunity, as there was no prior case "that clearly establishes the unconstitutionality of using deadly force to end a car chase that threatened the physical safety of the officers and others in the area." McGrath v. Tavares, #12-2277, 2014 U.S. App. Lexis 14776 (1st Cir.).

Homeless Persons

     A trial court properly denied a preliminary injunction to prevent enforcement of most provisions of an ordinance aimed at aggressive panhandlers, other solicitors, and demonstrators seeking the attention of motorists (other than a ban on nighttime solicitation). The ordinance was challenged by homeless people who solicited donations from city sidewalks and a person who displayed political signs near traffic during election campaigns. The restrictions in the ordinance were not aimed at the content of speech, and did not appear to violate the First Amendment. And as homelessness and wealth were not suspect classifications for equal protection purposes, the ordinance would only have to survive rational basis scrutiny. Thayer v. City of Worcester, #13-2355, 2014 U.S. App. Lexis 11578 (1st Cir.).

Malicious Prosecution

      Five men initially convicted and then exonerated of involvement in the 1989 brutal rape and beating of a female jogger in Central Park in New York City have reached a $40 million settlement in a lawsuit over their arrests, prosecutions, and imprisonment. The proposed settlement works out to approximately $1 million for each year the plaintiffs spent incarcerated. They claimed that incriminating statements they had made had been coerced. They were convicted in 1990 and incarcerated, but DNA and other evidence later showed that the beating and rape had not been committed by the five black and Hispanic teenagers, who were ages 14 to 16 at the time of the crime, but by another person, a convicted rapist and murderer who stated in a confession that he acted alone. McRay v. City of New York, #1:03-cv-09685, U.S. Dist. Ct. (S.D.N.Y), reported in The New York Times, June 19, 2014. (Read Complaint at link).

Search and Seizure: Search Warrants

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

     The mother of a seven year old girl suffering from brain cancer grew marijuana plants to extract oil thought to be helpful in treatment. Her father-in-law, a police officer, knew of this and assisted her, supplying special light bulbs and periodically checking on the crop. When the girl died, there were various family disputes about her obituary, who was allowed at the services, the display of religious symbols, and the disposal of her ashes, which the father-in-law tried to take. The father-in-law and a fellow officer then obtained a search warrant for the house based on the father-in-law's observation of marijuana plants in the home's basement. No such plants were found during the search, as they had been thrown away after the girl's death. The girl's mother sued the officers and city for unlawful search, claiming that there were falsehoods in the affidavit. A federal appeals court upheld the dismissal of the lawsuit. While it called the father-in-law's behavior "atrocious," there was no allegation that he knew that the marijuana plants were gone. An officer's motive in applying for a warrant does not invalidate a warrant that is supported by probable cause. While the affidavit was misleading by failing to reveal the father-in-law's relationship to the mother, candor in revealing it would not have undermined probable cause. Scherr v. City of Chicago, #13-1992, 2014 U.S. App. Lexis 12516 (7th Cir.).

Search and Seizure: Vehicle

     A state trooper stopped an interstate motorist for speeding, and based on her answers to a few questions, decided to ask if he could search her car for drugs. She refused, and the trooped called for help from a K-9 unit officer to conduct a dog sniff. A two hour search was conducted and no drugs were found. A federal appeals court agreed with the trial court that the K-9 officer could not establish probable cause for the car search prior to the dog sniff. Additionally, there were disputed facts as to whether the dog alerted before jumping into the car and whether the K-9 officer facilitated the dog's entry into the car before probable cause was established, so his motion for summary judgment based on qualified immunity was denied. Felders v. Malcom, #12-4154, 2014 U.S. App. Lexis 11627 (10th Cir.).

Video Taping By Citizens

     A county police department reached a $200,000 settlement with a freelance videographer arrested for filming police activity on a public street. In addition to paying the money, the county agreed to develop and implement training for officers on citizens' First Amendment rights to record public police activity. The plaintiff, a freelance journalist, was filming the scene of a police chase when the police told him to leave. He moved a block away and continued filming from a public area. Then, despite showing his press credentials, his camera was confiscated and he was arrested on charges of obstruction. Datz v. Suffolk County, #12-CV-1770 (E.D.N.Y. May 7, 2014).

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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

     Drugs: New Challenges for Police: A Heroin Epidemic and Changing Attitudes Toward Marijuana, Police Executive Research Forum (PERF) (August, 2014).

     Excited Delirium: Excited Delirium and the Dual Response: Preventing In-Custody Deaths, by Brian Roach, Kelsey Echols, and Aaron Burnett, .FBI Law Enforcement Bulletin (Jul. 2014).

     Mental Illness: Encountering Mentally Ill People and Potential Liability under the ADA, by Michael J. Oh, Police Chief (Jul. 2014).

     Terrorism: Illusion of Justice Human Rights Abuses in US Terrorism Prosecutions, Human Rights Watch (July 21, 2014). The 214-page report examines 27 federal terrorism cases from initiation of the investigations to sentencing and post-conviction conditions of confinement. It documents the significant human cost of certain counterterrorism practices, such as overly aggressive sting operations and unnecessarily restrictive conditions of confinement.

  Reference:

Cross References
Assault and Battery: Pepper Spray -- See also, False Arrest/Imprisonment: No Warrant (1st case)
Dogs -- See also, Search and Seizure: Vehicle
False Arrest/Imprisonment: No Warrant -- See also, Malicious Prosecution
First Amendment -- See also, Attorneys' Fees: For Plaintiff
First Amendment -- See also, False Arrest/Imprisonment: No Warrant (2nd case)
First Amendment -- See also, Homeless Persons
First Amendment -- See also, Video Taping By Citizens
Interrogation -- See also, Malicious Prosecution
Public Protection: Disturbed/Suicidal Persons -- See also, Firearms Related: Intentional Use (1st case)
Search and Seizure: Home/Business -- See also, Search and Seizure: Search Warrants

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