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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2015 LR April
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CONTENTS

Digest Topics
Assault and Battery: Physical
Domestic Violence
Failure to Disclose Evidence & Loss of Evidence/Preservation of Evidence
False Arrest/Imprisonment: Mental Illness Seizure or Commitment
False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use (2 cases)
First Amendment
Homeless Persons
Malicious Prosecution

Resources

Cross References


AELE Seminars

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

Assault and Battery: Physical

     Police pulled over a female motorist based on confusing statements concerning a male suspect heard by a 911 operator during a phone call. The woman claimed that the officers ordered her out of her car at gunpoint, threw her on the ground, handcuffed her, and detained her for approximately ten minutes. The male suspect was not in the car. A federal appeals court upheld a denial of qualified immunity to the officers. If the woman's version of the incident were true, the officers used excessive force against her despite the fact that she was clearly afraid and was completely cooperating with their orders. While there had been reasonable suspicion to make the stop, if the plaintiff's version of events were true, the incident turned into an unlawful arrest when the officers continued after determining that she was a woman alone in the car. Brown v. Lewis, #14-1392, 2015 U.S. App. Lewis 2917, 2004 Fed. App. 354P (6th Cir.).

Domestic Violence

     A woman who had previously been assaulted by her ex-husband served as the police department contact for her neighborhood watch group. She mentioned the assault to the police chief, but no report was file nor was any official action taken. The chief started spending time with her, and ultimately entered into a sexual relationship with her. After she broke it off, she began experiencing what she believed was harassment, including unknown cars parked outside her house and anonymous threatening phone calls mentioning private conversations she had had with the chief. While she reported this to the police department, no official action was taken. Believing that the chief had orchestrated the harassment, she sued the city and the chief both individually and in his official capacity. A federal appeals court upheld summary judgment for the dependents on constitutional claims. rejecting assertions of substantive due process violations of her rights to bodily integrity and to be free from state-created danger. There was, first of all, no evidence that the chief had coerced her into sexual relations through an abuse of authority that was shocking to the conscience. The plaintiff did not show that the defendants violated equal protection by maintaining a policy of failing to respond to women's complaints of domestic violence, as she offered only a "smattering" of anecdotal evidence for her assertions. And she failed to show that she was subjected to a state-created danger, because the chief's alleged failure to report her domestic abuse claim and the department's alleged failure to adequately respond to her claims of harassment did not make her more vulnerable to risks created by others, but rather left her in the same circumstances she had been in before she sought a protective order. Villanueva v. City of Scottsbluff, #14-1792, 2015 U.S. App. Lexis 2568 (8th Cir.).

Failure to Disclose Evidence & Loss of Evidence/Preservation of Evidence

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

     A rape victim and another witness identified a man as her assailant. While the police collected a rape kit with pubic and head hair and swabs, it was not tested for DNA, and the man was convicted. Years later, the kit was tested under court order, and it was determined that it contained no testable spermatozoa. Still later, based on a new law, the man sought further testing, claiming that new technology enabled testing of samples previously deemed inadequate. The kit could not be found, and the prosecutor's office indicated that it must have been destroyed, pointing both to an earlier fire and a practice of the property clerk of destroying records after six years. Years later on, the evidence was found, tested, and it was determined that the DNA did not match the man, and his conviction was vacated. In a lawsuit claiming that an inadequate evidence system had deprived him of due process and access to the courts, a federal appeals court overturned a trial court order setting aside an $18 million verdict in the plaintiff's favor against the city. It held that, under New York law, a convicted prisoner has a liberty interest in demonstrating his innocence with newly available DNA evidence and is entitled to reasonable procedures that facilitate him vindicating that interest. There was evidence that the police department's failure to adequately track evidence was pervasive. The jury's verdict on the due process claim was reinstated, and, on remand, further proceedings were ordered on the plaintiff's First Amendment claim for denial of his right of access to the courts. Newton v. City of New York, #11-2610, 2015 U.S. App. Lexis 2835 (2nd Cir.)

False Arrest/Imprisonment: Mental Illness Seizure or Commitment

     A girl's high school boyfriend told an employee at school that she had tried to kill herself. The employee called the police and an officer was sent to the home where the girl was staying, detaining her until a sheriff's deputy arrived and took her, over her objections, to a hospital where she was subjected to a mental health examination. The deputy allegedly falsely said that he had a copy of a prior physician's medical examination, which had not actually taken place, and wrote that the boyfriend had personally told him about the alleged suicide attempt, a statement the boyfriend denied making. Both the officer and the deputy allegedly ignored statements by the girl's father contradicting the suicide report, as well as the girl's calm demeanor. A federal appeals court upheld a ruling that the officer had probable cause for his actions, but reversed a grant of qualified immunity for the deputy, holding that if the facts were as claimed, he would have overstepped the boundaries of the Fourth Amendment y taking the girl to the hospital and then making false statements that caused her more prolonged detention. Bruce v. Guernsey, #14-1352, 2015 U.S. App. Lexis 1184 (7th Cir.).

False Arrest/Imprisonment: Unlawful Detention

      An officer approached a car he was parked at night in a rural unlit area. Two men holding shotguns were encountered, and he pointed his service revolver at them. An unlawful seizure claim filed by one of the men failed. The officer had reasonable suspicion to stop him for investigatory purposes when he observed him carrying a shotgun with a second armed man in the area, particularly as the plaintiff failed to immediately comply with the request to place his weapon on the ground. Under the circumstances, the officer was justified in temporarily unholstering his weapon and pointing it at both men while assessing the situation and gaining control. The men outnumbered the officer and he did not know then that they were there for purposes of hunting. Stiegel v. Collins, #14-1631, 2014 U.S. App. Lexis 23116 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

      A 16-year-old boy had pulled over into an apartment building parking lot where police officers were waiting to serve an eviction order. When officers attempted to speak to him, he tried to drive off in his car and two officers opened fire on him, hitting him after he clipped an officer with the car's side mirror. Rejecting an excessive force claim, a federal appeals court found that the officers had not violated clearly established Fourth Amendment law as a juvenile court's prior ruling that the plaintiff had committed felony assault determined that moments before the shooting, his driving had posed a "grave risk of causing significant bodily injury to an officer." Fenwick v. Pudimott, #13-5130, 2015 U.S. App. Lexis 2264 (D.C. Cir.).

     The city of New York has reached a $3.9 million settlement with the family of an 18-year-old man shot and killed by an officer in his home in 2012. The officer chased the man into his home from the street and contended that he had been involved in a drug deal. A small quantity of marijuana was found in the home. The officer asserted that he believed that the decedent had a gun at the time of the incident, but no such gun was found. The decedent's estate will recieve $2.95 million, his brother will receive $500,000, and his grandmother will receive $450,000. Both the brother and grandmother were in the house at the time of the shooting. His mother, who was not present, will receive an additional $40,000. Estate of Graham v. City of New York, #1:13-cv-02015, U.S. Dist. Ct. (Jan. 30, 2015, S.D.N.Y).

First Amendment

    Two participants in Occupy Wall Street protests in front of the Austin, Texas city hall sued the city and won both declaratory and injunctive relief against a policy under which such demonstrators were issued criminal trespass notices to get off of city property. The trial court ruled that the policy, on its face, violated the First Amendment. They were not, however, awarded the nominal damages they sought. A federal appeals court ruled that the plaintiffs were prevailing parties, still entitled to an award of attorneys' fees, despite not receiving damages, since their primary goal was to force the city to stop issuing the notices, and they achieved that goal. Further hearings will determine the amount of the fees to be awarded. Sanchez v. City of Austin, #13-50916, 774 F.3d 873 (5th Cir. 2014).

Homeless Persons

     A homeless man who supports himself by soliciting donations filed a federal lawsuit challenging a county ordinance prohibiting solicitations on county roadways. A federal appeals court found that the county had the burden of showing the constitutionality of the ordinance, which the plaintiff showed limited his ability to collect donations because he was forced to move to locations where it was more difficult for drivers to give him money. It further ruled that the county failed to show that the ordinance was content neutral and was a narrowly tailored time, place, and manner restriction on free speech, or that it left open ample alternative channels of communication. While the county showed that the ordinance materially advanced its interest in roadway safety, it failed to show that it had tried to improve safety by prosecuting those roadway solicitors who actually obstructed traffic or had thought about barring solicitations only at certain locations where it could not be done safely. Reynolds v. Middleton, #13-2389, 2015 U.S. App. Lexis 2704 (4th Cir.).

Malicious Prosecution

     A federal appeals court has upheld a $7 million damage award against two police officers who were accused of having framed a mentally challenged man with an IQ of 67 for the brutal rape, multiple stabbings, and murder of a 58-year-old woman. He was exonerated of any involvement in the crime through DNA testing after almost 26 years in prison. The officers allegedly spent hours alone with him after his arrest in 1983, telling the then 15-year-old boy information about the crime scene and then "tricking" him into repeating the information back in a manner that looked ike a confession. The jury's award is against the officers personally, with one liable for $4 million and the other for $3 million. Spadaro v. City of Miramar, #13-14884, 2015 U.S. App. Lexis 932 (Unpub. 11th Cir.). The facts of the case are covered in a prior decision. Spadaro v. City of Miramar, #11-61607, 2013 U.S. Dist. Lexis 16714 (S.D. Fla.).

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AELE Seminars

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

Click here for more information about all AELE Seminars


Resources

     Body-Worn Cameras: Guidance for the Use of Body-Worn Cameras by Canadian Law Enforcement Authorities, The Privacy Commissioner of Canada (Feb. 2015).

     Crimes Against Children: Parental Kidnapping: Using Social Media to Assist in Apprehending Suspects and Recovering Victims, FBI Law Enforcement Bulletin (March 2015).

     Justice Department Reports: Department of Justice report on the Ferguson, Mo. Police Department, U.S. Department of Justice, Civil Rights Division (March 4, 2015).

     Presidential Task Force Reports: Interim Report of the President's Task Force on 21st Century Policing (March 1, 2015).

     Training: Emergency Medical Response in Active-Threat Situations: Training Standards for Law Enforcement, by John M. Landry, Sara J. Aberle, Andrew J. Dennis, and Matthew D. Sztajnkrycer, FBI Law Enforcement Bulletin (March 2015).

  Reference:

Cross References
DNA Testing & Issues -- See also, Failure to Disclose Evidence & Loss of Evidence/Preservation of Evidence
DNA Testing & Issues -- See also, Malicious Prosecution
False Arrest/Imprisonment: No Warrant -- See also, Assault and Battery: Physical
First Amendment -- See also, Homeless Persons
Interrogation -- See also, Malicious Prosecution
Interrogation: Juveniles -- See also, Malicious Prosecution
Sexual Assault and Harassment -- See also, Domestic Violence
Public Protection: Suicidal Persons -- See also, False Arrest/Imprisonment: Mental Illness Seizure or Commitment
Search and Seizure: Persons -- See also, False Arrest/Imprisonment: Unlawful Detention

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