AELE Seminars

Use of Force:
Lethal and Less Lethal Force
and the
Management, Oversight and Monitoring of Use of Force
Including ECW Operations and Post-Incident Forensics
In two modules Orleans Hotel, Las Vegas
Mar. 2-3 and 4-5, 2015

Public Safety Discipline and Internal Investigations
Oct. 12-14, 2015 Orleans Hotel, 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: 2015 LR March
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CONTENTS

Digest Topics
Electronic Control Weapons: Dart and Stun Mode
Failure to Disclose Evidence
False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use
First Amendment
Governmental Liability: Policy/Custom
Homeless Persons
Malicious Prosecution
Search and Seizure: Home/Business (2 cases)

Resources

Cross References


AELE Seminars

Use of Force:
Lethal and Less Lethal Force
and the
Management, Oversight and Monitoring of Use of Force
Including ECW Operations and Post-Incident Forensics
In two modules Orleans Hotel, Las Vegas
Mar. 2-3 and 4-5, 2015

Public Safety Discipline and Internal Investigations
Oct. 12-14, 2015 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Electronic Control Weapons: Dart and Stun Mode

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

     A hospital patient being treated for pneumonia became aggressive and uncooperative. His condition was causing low oxygen levels and may have impacted his mental state. After he started yelling that he was "God," and that hospital staff were trying to kill him, officers were summoned to try to control him and keep him from walking out. A Taser was used once in the dart mode but seemed ineffective, followed by a use of a Taser in the stun mode, which also appeared not to bring the patient under control, and the officers physically fought with him, finally getting handcuffs on him, whereupon hospital staff administered an injection of Haldol and Ativan. He went limp, and vomited clear fluid. CPR failed to revive him and he died. The cause of death was determined to be respiratory insufficiency secondary to pneumonia, with the manner of death being natural, but the medical examiner stated that the use of the Taser "certainly could" have increased the patient's need for oxygen, with the physical struggle exertions exacerbating his underlying pneumonia. The fact that he was placed in a prone position with his hands cuffed behind his back also might have compromised his ability to inhale and get oxygen.

     In a lawsuit claiming excessive use of force, a federal appeals court upheld a denial of qualified immunity to the officers. A jury could find that the officers violated the decedent's constitutional rights by using a severe level of force against him despite their awareness of his mental instability, the seriousness of his medical condition, and the fact that he only posed a threat to himself and had committed no crime. It was clearly established that it was not objectively reasonable to use a Taser as the initial force employed against a non-criminal subject who was seriously ill, was passively resisting, and only posed a threat to himself, whether or not a warning was first given. Aldaba v. Marshall County, #13-7034, 2015 U.S. App. Lexis 1822 (10th Cir.).

Failure to Disclose Evidence

     After 13 years, a man's conviction for the murder of his ex-girlfriend was overturned, based on a finding that his due process rights were violated by a failure to disclose material exculpatory information about a viable alternative suspect. He sued the officers and prosecutors involved in the case, arguing that they deliberately conspired to suppress the exculpatory evidence. After several defendants were dismissed, an appeals court upheld summary judgment for the remaining defendants, three officers and the town. The plaintiff failed to submit sufficient evidence from which a reasonable jury could find a conspiracy to exist to conceal the exculpatory evidence. It was also not clearly established in Illinois in 1995 that a polygraph exam taken by an alternative suspect, which would have been inadmissible in court, qualified as Brady material. Beaman v. Warner, #14-1195, 2015 U.S. App. Lexis 527 (7th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     SWAT officers armed with a search warrant seeking illegal gaming equipment raided a Halloween party with hundreds in attendance. Some partygoers were detained for up to 14 hours before they were questioned and let go. A number of them said that an investigator violated their rights against unlawful seizure by prolonging their detention beyond the conclusion of the warranted search. A directed verdict for the defendant was reversed because, under the facts alleged, a reasonable jury could conclude that the search had ended before the questioning began, and the detentions went far beyond a "brief" Terry investigatory search, lasting up to 14 hours and as much as 7 hours beyond the defendant's estimation of when the search ended. Guillory v. Hill, #G047446, 2015 Cal. App. Lexis 38.

Firearms Related: Intentional Use

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

     A police officer responding to a 911 call reporting that males with guns were walking on a street shot and killed a 14-year-old boy he encountered there. The officer claimed that the boy drew a gun and aimed it at officers before he was shot. A federal appeals court upheld the rejection of the officer's motion for qualified immunity on the excessive force claim, finding that there were disputed issues of material fact. The plaintiff claimed that the boy had thrown the gun over a fence before he was shot, and was unarmed and no threat at the time he was killed. Additionally, still shots from a police video appeared to show the boy pinned to the fence, and there was evidence that his weapon had no blood on it while the fence was splattered with blood. The court also mentioned that the boy was shot only once while there was an officer training protocol that called for officers to fire multiple shots when faced with imminent danger. Harris v. Lasseigne, #14-1033, 2015 U.S. App. Lexis 1931, 2015 Fed. App. 0020P (6th Cir.).

First Amendment

     A well known female political activist was arrested and jailed for disorderly conduct and breaching the peace after an incident in which she shouted "Fuck the Police! Cobb Police Suck!" and gave two officers "the finger" while riding a bicycle on a public street when she saw the officers confronting an African-American man in a supermarket parking lot. She was forty feet away from the officers at the time, and the incident was recorded by a camera in a police patrol car. A trial judge threw out the charges, stating that "The defendant's statements, although offensive to this court, clearly constitute political speech." She filed a federal lawsuit over the arrest, claiming that it violated her First Amendment rights, and that she did not interrupt or disrupt the police from performing their duties. The county has reached a $100,000 settlement in the case. Barnes v. Cobb County, Georgia, #1:14-cv-00948, U.S. Dist. Court, (N.D. Ga. December 19, 2014).

Governmental Liability: Policy/Custom

     Police arrested a man and jailed him for over 50 hours when they mistakenly thought he was a serial ank robber. He se the officers and the city after his release, but the claims against the city became a separate lawsuit which was stayed until resolution of the suit against the individual officers, in which a jury awarded $60,000. A federal appeals court ruled that the trial court then erroneously interpreted a motion to lift the stay and amend his complaint in the lawsuit against the city as a waiver of all but two of his several policy-or-practice claims against the city, and also improperly dismissed that lawsuit after erroneously treating the city's certification that it would indemnify the officers as an offer under Fed. Rule of Civil Procedure 68 to pay the award against the officers and nominal damages of $1 for municipal liability claims. The lawsuit against the city was reinstated and the plaintiff was entitled to amend his complaint within 21 days after the city filed a responsive pleading after the stay was lifted. Swanigan v. City of Chicago, #12-1261, 2015 U.S. App. Lexis 396 (7th Cir.).

Homeless Persons

     The owner of private property agreed to let 22 homeless persons and two persons providing services to them camp on his lot, located in a light industrial area of the city. Police then informed all concerned that the camping was in violation of a city ordinance that required a permit for extended camping on public or private property. Police removed camping gear from the site and issued two citations for an ordinance violation. When the campers brought in more gear and continued their activities, they were arrested. An agreed judgment was entered against the plaintiffs' challenge to the ordinance as unconstitutional, in order to facilitate an appeal. The federal appeals court found that the plaintiffs had stated a triable claim for declaratory relief challenging the ordinance as applied on the basis of equal protection. The plaintiffs forfeited, however, their claims for arbitrary and discriminatory enforcement, violation of substantive due process, and impermissible vagueness. Allen v. City of Sacramento, #C071710, 2015 Cal. App. Lexis 116.

Malicious Prosecution

     An officer was properly denied absolute immunity on an arrestee's malicious prosecution lawsuit when the plaintiff claimed that he knowingly falsified and omitted material facts from police reports and lied to the prosecutor and grand jury. The claims against the officer were not based on his grand jury testimony, but rather on the police reports, the officer's knowledge of the falsehoods in another officer's police report, police radio transmissions, and statements to the prosecutor. Qualified immunity was also not available to the officer on the alleged falsification of evidence and a related conspiracy, since if these were true, they would constitute a violation of clearly established law. Coggins v. Buonora, #13-4635, 2015 U.S. App. Lexis 487 (2nd Cir.).

Search and Seizure: Home/Business

     After a patrol officer engaged in a high speed chase with a member of a family, he allegedly entered the family's home without knocking and announcing his presence and impounded the family's ATV. Denial of summary judgment to the officer for the no-knock entry was upheld when it was disputed whether a reasonable officer should have taken into consideration at 2 a.m., that the other occupants of the home were awake and aware of his authority and purpose. Claims related to the seizure of the ATV were rejected as Texas state law allowed the officer to seize it under the circumstances as he was lawfully on the premises and it had just been used as an instrumentality of a crime. Trent v. Wade, #13-10960, 2015 U.S. App. Lexis 391 (5th Cir.).

     A tax assessor's field deputy entered a property surrounding a home to gather data and reported finding marijuana. Officers then entered the curtilage of the home, specifically a walk-out basement patio area attached to the home and searched the area for marijuana. The unreasonable search claims should not be dismissed as the knock-and-talk exception to the warrant requirement did not apply. The officers allegedly saw a plaintiff only after they entered the curtilage. If the facts were as alleged, the defendants violated clearly established law. Covey v. Assessor of Ohio County, #13-1227, 2015 U.S. App. Lexis 1113 (4th Cir.).

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AELE Seminars

Use of Force:
Lethal and Less Lethal Force
and the
Management, Oversight and Monitoring of Use of Force
Including ECW Operations and Post-Incident Forensics
In two modules Orleans Hotel, Las Vegas
Mar. 2-3 and 4-5, 2015

Public Safety Discipline and Internal Investigations
Oct. 12-14, 2015 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Alzheimer's: Alzheimer's Aware: A Guide for Implementing a Law Enforcement Program to Address Alzheimer's in the Community, Bureau of Justice Assistance (NCJ 248634 2015).

     Child Abuse: Interdiction for the Protection of Children, by Michael L. Yoder and Wayne R. Koka, FBI Law Enforcement Bulletin (February 2015).

     Racial Profiling: Chicago Police Department Stops and Resulting Searches in 2013, by the ACLU of Illinois (December 2014).

     Statistics: Campus Law Enforcement, by Brian Reaves, Bureau of Justice Statistics. (January 20, 2015 NCJ 248028).

  Reference:

Cross References
Absolute Witness Immunity -- See also, Malicious Prosecution
Assault and Battery: Physical -- See also, Electronic Control Weapons: Dart and Stun Mode
False Arrest/Imprisonment: No Warrant -- See also, Governmental Liability: Policy/Custom

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