AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 25-28, 2016 Orleans Hotel, Las Vegas

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 2-day modules Orleans Hotel, Las Vegas
April 4-5 and April 6-7, 2016

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 June
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CONTENTS

Digest Topics
Assault and Battery: Physical
Dogs
False Arrest/Imprisonment: Warrant
False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use
First Amendment
Privacy
Public Protection: Arrestee/Detainee
Public Protection: Crime Victim
Wiretapping

Resources

Cross References


AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 25-28, 2016 Orleans Hotel, Las Vegas

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 2-day modules Orleans Hotel, Las Vegas
April 4-5 and April 6-7, 2016

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     A college student studying for exams sat in an area of a D.C. public library reserved for children. A police officer asked her to move, so she went to a young adult area after finding no seats available in the adult area, although she was over the age for the young adult area also. The officer asked her to move again and an altercation ensued, culminating with her arrest. The student sued the officer and the District of Columbia for excessive use of force. At trial, the officer and the arrestee disputed the specifics of the incident and an "inconclusive" video of part of what occurred was introduced. The defense also introduced the testimony of a librarian, which supported the officer's version of events, but had not identified him as a potential witness prior to trial. The librarian's testimony was allowed as an impeachment witness to impeach the plaintiff's testimony. The jury returned a verdict for the defendants. A federal appeals court reversed, ordering a new trial, and finding that the librarian's testimony was improperly admitted as it went beyond impeachment to essentially collaborate the officer's testimony in a case where the trial turned on the jury's assessment of the credibility of the witnesses, and the librarian's testimony likely influenced the outcome. Standley v. Edmonds-Leach, #13-7104, 2015 U.S. App. Lexis 6528 (D.C. Cir.).

Dogs

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

     A K-9 officer stopped a motorist for a traffic violation, and issued a warning after attending to everything related to the stop, including checking driver's licenses. He then asked for consent to walk his dog around the vehicle, which was refused. The officer continued to detain the motorist until a second officer arrived and then retrieved his dog who alerted to the presence of drugs in the vehicle. A search subsequently found methamphetamine. The detention lasted about seven to eight minutes following the time the warning was issued until the dog alerted. The U.S. Supreme Court, by a 6-3 vote, held that absent reasonable suspicion the extension of a traffic stop in order to conduct a dog sniff constitutes an unreasonable search. On remand, the court should consider whether the detention for the dog sniff was independently supported by individualized suspicion. Rodriguez v. United States, #13-9972, 2015 U.S. Lexis 2807. While the decision was made in the context of a criminal proceeding, the Court's reasoning would also apply in a federal civil rights lawsuit.

False Arrest/Imprisonment: Warrant

     After a neighbor placed a deteriorated unlicensed trailer on his property, a man fixed and painted it, believing it to be abandoned. The trailer later disappeared, and then was found by a detective in a ditch. The detective suspected that the property owner had stolen the trailer and used it to transport lawn mowers stolen from another man's property during a burglary. The detective obtained warrants for the collection of DNA samples and fingerprints, and a search of the suspect's property. Despite the fact that no evidence implicating the suspect in any crime was found during the search, the detective and another detective who assisted him told an assistant state's attorney that he should be charged. The prosecutor swore out an affidavit for an arrest warrant, despite having no personal knowledge, relying on the detectives. After charges were dismissed, the arrestee sued the prosecutor and detectives. The prosecutor was not protected by absolute prosecutorial immunity as he acted as a witness rather than a state advocate in swearing to the truth of the facts used to obtain the warrant. The prosecutor and the two detectives were also not entitled to qualified immunity from false arrest claims, as the lawsuit complaint permitted a reasonable inference that they all furnished false information in order to obtain the arrest warrant. Olson v. Champaign County, #12-3742, 2015 U.S. App. Lexis 7143 (7th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     A woman claimed that a state trooper started harassing her in 2007, tailgating her in an off-duty vehicle, parking behind her, and questioning her about her driving. When the officer and the female motorist's adult son exchanged heated words, the officer at first allegedly stated that the motorist would receive an additional ticket because of her son's statements and then left without issuing any tickets when the son stated that he would complain to the officer's supervisor. After the motorist complained abut this, the officer, hours later, arrived at her home and delivered three tickets. After her son mentioned the alleged harassment at a restaurant, the trooper, accompanied by a fellow officer, again returned to the home, resulting in a confrontation with the woman's son-in-law. A federal appeals court ruled that a First Amendment retaliatory prosecution claim was time barred as it was filed two years after the tickets were delivered to the woman, which was the date the claim accrued, rather than the later date of the trial when she was convicted on the tickets. The trial court erred, however, in dismissing a Fourth Amendment constructive seizure complaint against the trooper on the basis that the plaintiff failed to specifically identify in that claim that she was proceeding under 42 U.S.C. Sec. 1983 rather than merely under the Fourth Amendment. Smith v. Campbell, #14-1468, 782 F.3d 93 (2nd Cir. 2015).

Firearms Related: Intentional Use

     A deputy shot and killed a man while responding to a report of an assault that was no longer in progress. The decedent's parents sued, claiming that the defendant shot the decedent in the back when he was unarmed. The deputy claimed that the decedent had charging towards him while armed with a weapon at the time the fatal shot was fired. A federal appeals court upheld a denial of summary judgment on the basis of qualified immunity, since there was a factual dispute as to what occurred. Viewing the facts in the light most favorable to the plaintiffs, if the facts were as they alleged, deadly force was used against a suspect who did not pose a threat of serious bodily injury or death, which would be clearly unconstitutional. Capps v. Olson, #14-1782, 780 F.3d 879 (8th Cir. 2015).

First Amendment

     A man who owned business property 150 feet from a local polling place sued state and local officials claiming that a state statute that created a 300 foot no political speech buffer zone around polling places on election day violated his First Amendment rights. Based on the statue, sheriff's deputies had allegedly removed political signs from the plaintiff's property on previous election days, and informed him that the statute prohibited him, on such days, from waving signs on his own property or offering campaign literature to persons passing by. A federal appeals court upheld a permanent injunction against the statute as unconstitutional in violation of the First Amendment. The state failed to carry its burden of showing why it required a no political speech buffer zone vastly larger than previously upheld by the U.S. Supreme Court. Russell v. Lundergan-Grimes, #14-6262, 2015 U.S. App. Lexis 6977 (6th Cir.).

     Editor's Note: The. U.S. Supreme Court, in Burson v. Freeman, #90-1056, 504 U.S. 191 (1992), upheld a 100 foot buffer zone.

Privacy

     After a man parked his car on the street outside his suburban home in violation of an ordinance, an officer placed a parking ticket face down under his windshield wiper. The ticket included the man's name, birth date, sex, weight, height, driver's license number, an outdated address, and the vehicle identification number and description of his car. He then filed an attempted class action lawsuit under the federal Driver's Privacy Protection Act, 18 U.S.C. 2721, forbidding the disclosure of personal information obtained in connection with motor vehicle records except for specified uses "in connection with any civil, criminal, administrative, or arbitral proceeding" and "use by any government agency, including any court or law enforcement agency, in carrying out its functions." Upholding the rejection of the privacy claim, a federal appeals court noted that there was no evidence that anyone had ever taken a parking ticket off a car windshield in the suburb in question and used the personal information on the ticket for any purpose. It stated that, had the municipality made all the information present on the ticket accessible to the public on the Internet or placed "highly sensitive" information, such as the motorist's Social Security number, on the ticket, there might have been a greater risk of a "nontrivial" invasion of privacy that outweighed any benefit to law enforcement. Senne v. Village of Palatine, #13-3671, 2015 U.S. App. Lexis 7118 (7th Cir.).

Public Protection: Arrestee/Detainee

     Two men were walking home on Christmas Eve when they stopped to rest along the road, sitting on a guardrail. An officer approached them in his cruiser and asked if everything was ok. They replied that it was, but when the officer asked them their names, one man started to walk away while the other allegedly started to "go off" like "a crazy person." The officer allegedly pepper sprayed the man, handcuffed him behind his back, took him from a place of safety to the street, and left him in the street. Both that man and the officer were subsequently hit by a car, with the crash causing the detainee severe traumatic brain injury requiring around the clock care. In a lawsuit, the officer was not entitled to qualified immunity. A reasonable jury could find, based on the incident as alleged by the plaintiff that the officer seized the man without reasonable suspicion and was deliberately indifferent to his safety based on the length of time he left him handcuffed, face-down on the road. While the officer did expose himself to danger by racing into the road to try to save that man from the oncoming car, himself suffering a broken shoulder and leg, it was possible to find that the officer acted recklessly in handcuffing him in the street. Family Serv. Ass'n v. Wells Twp., #14-4020, 2015 U.S. App. Lexis 6174, 2015 Fed. App. 69P (6th Cir.).

Public Protection: Crime Victim

     A police officer arrived at an apartment building in response to a complaint about minors drinking outdoors there. A minor white female drinking with a group of three African-American males, was so intoxicated that she could not stand up by herself, so one of them had to hold her up from behind. The officer arrived and talked to the males, allowing them to leave with the female without asking for identification. One of the males was on probation for armed robbery and the other two males were minors. The three males then carried the female to a laundry room, and the apartment site manager again called police. Officers arrived and caught the probationer sexually assaulting the girl in the laundry room. In a failure to protect lawsuit, a federal appeals court found that the officer had not created the danger to the girl or done anything to make it worse. He was entitled to qualified immunity from liability. The court also rejected arguments that the officer was a racist who wanted the girl to come to harm because she as white and socializing with African-Americans. The plaintiff's reference to another incident in which the officer while operating an unmarked police car, ran over and killed an eight-year-old African-American boy and lied to cover it up was not similar to the immediate incident, and any connection was speculative. Doe v. Vill. of Arlington Heights, #14-1461, 2015 U.S. App. Lexis 5972 (7th Cir.).

Wiretapping

     A federal appeals court held that a telephone metadata program under which the National Security Agency (NSA) collected in bulk "on an ongoing daily basis" the metadata associated with numerous phone calls made by and to Americans, was not authorized by Sec. 215 of the PATRIOT Act. The appeals court did not consider the constitutionality of the program or rule that a preliminary injunction was required, leaving it for the trial court on remand to consider the propriety of preliminary relief. The trial court had denied relef, holding that the plaintiffs were precluded from bringing suit against the federal government about this program, but there was a right of action under the Administrative Procedure Act, 5 U.S.C. Sec. 702. ACLU v. Clapper, #14-42, 2015 U.S. App. Lexis 7531 (2nd Cir.).

Return to the Contents menu.

Report non-working links here


AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 25-28, 2016 Orleans Hotel, Las Vegas

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 2-day modules Orleans Hotel, Las Vegas
April 4-5 and April 6-7, 2016

Click here for more information about all AELE Seminars


Resources

     Body-Worn Cameras: Development in the Law Policing - Chapter Four: Considering Police Body Cameras, 128 Harv. L. Rev. 1794 (Apr. 2015).

     Deadly Force: Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 Harv. L. Rev. F. 235 (Apr. 2015).

     Gambling: Policing in the Casino Gaming Environment: Methods, Risks, and Challenges, by Kenneth J. Peak, FBI Law Enforcement Bulletin (May 2015).

     Search and Seizure: Katz and Dogs: The Best Path Forward in Applying United States v. Davis' Good Faith Exception to the Exclusionary Rule and How the Seventh Circuit Has Gone Astray, by Arlo Walsman, 10 Seventh Circuit Rev. 170 (2014).

  Reference:

Cross References
Defenses: Absolute Prosecutorial Immunity -- See also, False Arrest/Imprisonment: Warrant
Defenses: Statute of Limitations -- See also, False Arrest/Imprisonment: Unlawful Detention
First Amendment -- See also, False Arrest/Imprisonment: Unlawful Detention
Malicious Prosecution -- See also, False Arrest/Imprisonment: Unlawful Detention
Parking Tickets -- See also, False Arrest/Imprisonment: Unlawful Detention
Parking Tickets -- See also, Privacy
Privacy -- See also, Wiretapping
Public Protection: Intoxicated Persons -- See also, Public Protection: Crime Victim
Public Protection: Minors -- See also, Public Protection: Crime Victim
Race Discrimination -- See also, Public Protection: Crime Victim
Search and Seizure: Vehicles -- See also, Dogs
Terrorism and National Security Issues -- See also, Wiretapping
U.S. Supreme Court Cases -- See also, Dogs

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