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



 Search the Case Law Digest


A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2015 LR August
Click here to view information on the editor of this publication.

Access the multi-year Civil Liability Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader must be used to view content

CONTENTS

Digest Topics

Assault and Battery: Physical
Electronic Control Weapons: Unknown Mode Cases
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use (3 cases)
Governmental Liability: Policy/Custom
Negligence: Dead Body Identification/Handling
Racial Profiling
Search and Seizure: Home/Business

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 male motorist who was an insulin-dependent diabetic become lightheaded driving home, and pulled over on the shoulder of the road. He took glucose tablets and either fell asleep or became unconscious. A deputy approached the truck and knocked on the window, attempting to identify himself. The driver stated in a mumble that he was trying to recover from low blood sugar, but the deputy believed him to be intoxicated and radioed for another officer engaged in DWI enforcement. The motorist, when the second officer arrived, stated that he should "leave me the fuck alone." He refused several requests that he exit the vehicle, so both officers pulled him out by his legs, causing him to hit the ground. The driver continued to resist, trying to return to the truck and stating that he had a gun in his waistband when they tried to handcuff him. The gun was removed and thrown, and the motorist asked the officers if they were "stupid," as the gun could have discharged. The officers used pepper spray and struck the motorist. EMS personnel arrived, and treated the motorist for hypoglycemia and a nosebleed. Blood alcohol tests for intoxication were negative, and the driver had a broken rib. Upholding a grant of qualified immunity to the officers, a federal appeals court ruled that even had the officers realized that the driver was suffering from hypoglycemia, the driver still refused to comply with orders and was belligerent and impaired, justifying the use of force. The level of force used was objectively reasonable. Schoettle v. Jefferson County, #14-1993, 2015 U.S. App. Lexis 9729 (8th Cir.).

Electronic Control Weapons: Unknown Mode Cases

     A man's father called police to report that his son, who was bipolar, was acting up, was on drugs (prescription medicine), had threatened to kill himself, and probably had a gun. Deputies were dispatched to the home and entered the disturbed man's bedroom in order to transport him for mental health evaluation. A lawsuit claimed that he was on the bed with a shotgun loosely held on his lap, looking down at it, and did not raise it against the officers, but that one deputy fired two shot from his gun at him, knocking him off the bed, that another deputy deployed a Taser against him while he was on the ground, and that he was also beaten while on the ground. A federal appeals court reversed the dismissal of an excessive force claim against the deputies, as well as cover-up claims against the deputies, who allegedly created a false story about the man's actions with his gun during their entry, stating that he pointed his gun and it discharged, but rejected cover-up claims against the sheriff's office. The trial court had dismissed the claims now upheld on the basis of defective pleading, but those claims were informative enough to permit a court to determine if they were claims on which relief could be granted, if true. Weiland v. Palm Beach Cty. Sheriff's Office, #13-14396, 2015 U.S. App. Lexis 11750 (11th Cir.).

False Arrest/Imprisonment: No Warrant

     A claim for unlawful warrantless arrest survived summary judgment, a federal appeals court ruled, because the plaintiffs, a female high school student and her family, provided sufficient evidence to create a genuine dispute over whether or not, during an incident at school, the student had reached for an officer's gun and whether the officer knew that the student closed a gate, barring entrance to a school hallway. The court rejected the excessive force claim against the officer. Even if his shove of the student was unnecessary, it was not unreasonable, and the officer's pulling of the student's arm was not a Fourth Amendment violation because the student was then trying to escape arrest, and the officer had a right to prevent her from doing so.Fernandez-Salicrup v. Figueroa-Sancha, #14-1513, 2015 U.S. App. Lexis 10796 (1st Cir.).

Firearms Related: Intentional Use

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

     An officer was not entitled to qualified immunity when she shot and kicked an arrestee. The arrestee's initial crime had only been yelling and cussing at passing cars, and at the time force was used, he was retreating, apparently unarmed, and outside of striking distance when he was shot. The officer allegedly gave no warning before firing and kicked his had after he was already shot, handcuffed, and lying face down on the road. Another deputy allegedly then used a Taser in the dart mode on him multiple times after he had been shot. Several activations of the Taser were allegedly after the plaintiff had been handcuffed. The probes struck the man's chest and back. The deputy who used the Taser stated that he believed, during the later activations of the Taser, that the man was reaching for something in his pocket. The arrestee died at the scene, with the death attributed to blood loss from the gunshot wound. A federal appeals court further ruled that the first deputy was not entitled to qualified immunity on a claim that she improperly failed to intervene on the second deputy's repeated use of the Taser against the arrestee, even after he was handcuffed. The appeals court rejected, however, claims against the sheriff as a single failure to investigate an incident, which the sheriff was unaware of until after the fact, could not constitute ratification. Salvato v. Miley, #14-12112, 2015 U.S. App. Lexis 10758 (11th Cir.).

     A motorist's van started backfiring and he pulled over. Someone else called 911 and reported the backfiring as supposed shots fired. When two officers arrived and pulled up behind the motorist's van, the van backfired again, and the motorist got out of his vehicle, failing to hear an order to get back in. The driver told the officers that his van was backfiring, and one of them disputed this. The motorist them obeyed orders to walk towards the officers. Subsequently when there was additional backfire, the officers thought they were being shot at and ambushed, or that the driver was attempting "suicide by cop" and they fired at him, possibly grazing him. Their firing at him was justified as they had probable cause to believe that he posed a serious risk of harm to them, based on their belief that they were being fired on. As there were disputed issues of fact, the officers were not entitled to qualified immunity. Ransom v. Grisafe, #14-2204, 2015 U.S. App. Lexis 10441 (8th Cir.).

     A warrant was issued for the arrest of an alleged parole violator. A member of a Fugitive Apprehension Unit got a tip abut where the man was, and, in a well-lit parking lot in front of the building where he went to find the suspect, he observed him exiting a vehicle. He informed the man that he had a warrant for his arrest for parole violation. The officer placed his hand on the man's left shoulder, and when the man started to run away, the officer fired two shots, killing him. A jury rejected a federal civil rights claim for excessive force, but awarded $1 million on state law wrongful death clam. A federal appeals court upheld this result, finding that there was sufficient evidence to defeat the officer's motion for judgment as a matter of law, and that the damages award did not require a new trial. The evidence was sufficient to find that he had acted with reckless indifference to the parolee's rights and the damages awarded were not excessive. Estate of Snyder v. Julian, #13-3012, 2015 U.S. App. Lexis 10242 (8th Cir.).

Governmental Liability: Policy/Custom

     A man asserted that he had been assaulted by several people, one of whom was an off-duty police officer. A police detective assigned to investigate the incident was alleged to have done almost nothing on the investigation for six weeks, interviewing no witnesses other than the plaintiff, failing to inspect the crime scene, and following no leads, prior to closing the case. The plaintiff sued the detective for violating his right of access to the courts, claiming that the failure to properly investigate the crime resulted in the spoilation of evidence in his lawsuit against his assailants. He also assserted a claim for municipal liability against the city, claiming that it perpetuated a "code of silence" that had the effect of shielding officers from investigation and promoting misconduct. Summary judgment for the defendants was upheld. A federal appeals court found no denial of access to the courts because the defendants did not conceal any facts from the plaintiff that interfered with him suing his assailants. The plaintiff himself knew all the relevant facts of his case, so the detective was entitled to qualified immunity. The appeals court found that, on the municipal liability claim, there was insufficient evidence presented of any widespread practices by the police department. The appeals court further found that the trial court acted within its discretion in awarding costs to the city. Rossi v. City of Chicago, #13-3795, 2015 U.S. App. Lexis 10504 (7th Cir.).

     Editor's Note: For a discussion of the "Code of Silence" concept, see Code of Silence Litigation - Officer Use of Force, 2013 (1) AELE Mo. L. J. 101.

Negligence: Dead Body Identification/Handling

     During an authorized autopsy of a 17-year-old high school student who died in an auto accident, the medical examiner removed the student's brain, placed it in formalin, and put it in the autopsy room for additional examination by a neuropathologist. The body was later buried and only then did the family learn tat the medical examiner had retained the decedent's brain when forensic science students from the decedent's high school observed it in a jar during a visit to the medical examiner's facilities. At trial, a directed verdict on liability was granted by the court and $1 million in damages was awarded, although that amount was subsequently reduced to a lower amount on appeal with the consent of the plaintiffs. The highest court in New York reversed, ruling that a medical examiner conducting a lawful autopsy in New York has no legal requirement to notify the decedent's family that tissues, organs, or other specimens have been removed and retained. Shipley v. City of New York, #96, 2015 NY Slip Op 04791, 2015 N.Y. Lexis 1391.

     Editor's Note: For a discussion of this issue, see Civil Liability and Dead Bodies, 2014 (7) AELE Mo. L. J. 101.

Racial Profiling

     A class action federal lawsuit was filed against a sheriff and the county sheriff's office claiming that they had a policy, practice, or custom of "racially profiling" Hispanic drivers and passengers and conducting pretextual vehicle stops for the purpose of enforcing federal and state immigration related laws. A federal appeals court found that the county sheriff's office was improperly named as a defendant instead of the county. The sheriff's office had no separate capacity to be sued. It further ruled that trial court did not err in finding that there were unconstitutional policies in place going beyond the context of saturation patrols, even though the evidence presented of the violations mostly addressed saturation patrols.. The named plaintiffs had standing to assert the claims of absent class members stopped during such non-saturation patrols. An injunction issued by the trial court against the complained of practices was not overbroad because it included non-saturation patrols. Some provisions of the injunctive order, however, in mandating that a court appointed monitor look at internal investigations and reports concerning officer misconduct, were problematic, however, to the extent that such material was unrelated to the constitutional violations at issue. An order requiring officer training properly focused on the racially discriminatory profiling of Latinos for traffic stops and unjustified prolongation of traffic stops. Melendres v. Arpaio, #13-16285, 784 F.3d 1254 (9th Cir. 2015).

Search and Seizure: Home/Business

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

     Hotel owners and a lodging association challenged the constitutionality of a Los Angeles Municipal Code section requiring hotel operators to keep certain information about hotel guests on the premises for 90 days and make it available to any officer. It punished as a misdemeanor failure to make the records available. Upholding a federal appeals court ruling in favor of the plaintiffs, the U.S. Supreme Court found that the Code section was facially unconstitutional under the Fourth Amendment as it failed to give the hotel operators an opportunity for pre-compliance review, such as the issuance of a warrant or issuance of an administrative subpoena. The Court found that hotels were not a closely regulated industry lacking a reasonable expectation of privacy, that warrantless inspections were not necessary to further the regulatory scheme, and that there was insufficient constraint on the discretion of officers to decide which hotels to search under what circumstances. City of Los Angeles v. Patel, #13-1175, 2015 U.S. Lexis 4065.

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: Special Report: Body-Worn Cameras, Police Magazine (Jul. 2015).

     Deadly Force: Deadly Force. Police Use of Lethal Force in the United States, by Amnesty International (June 2015).

     Mental Health: The Importance of Mental Health Training in Law Enforcement, by Nicholas Wilcox, FBI Law Enforcement Bulletin (July 2015).

     Search and Seizure: Consent Searches, Point ov View, Alameda County District Attorney's Office (Spring-Summer 2015)

  Reference:

Cross References

Assault and Battery: Chemical -- See also, Assault and Battery: Physical
Assault and Battery: Physical -- See also, False Arrest/Imprisonment: No Warrant
Assault and Battery: Physical --See also, Governmental Liability: Policy/Custom
Electronic Control Weapons: Dart Mode -- See also Firearms Related: Intentional Use (1st case)
Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence --See also, Governmental Liability: Policy/Custom
Firearms Related: Intentional Use -- See also, Electronic Control Weapons: Unknown Mode Cases
Governmental Liability: Policy/Custom -- See also Firearms Related: Intentional Use (1st case)
Governmental Liability: Policy/Custom -- See also, Racial Profiling
Search and Seizure: Vehicle -- See also, Racial Profiling
U.S. Supreme Court Cases -- See also, Search and Seizure: Home/Business
Wrongful Death -- See also Firearms Related: Intentional Use (3rd case)

Report non-working links here

Return to the Contents  menu.

Return to the  monthly publications menu

Access the multiyear Civil Liability Law  Case Digest

List of  links to court websites

Report non-working links  here.

© Copyright 2015 by AELE, Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.

Library of Civil Liability Case Summaries

 Search the Case Law Digest