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 September
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CONTENTS

Digest Topics
Assault and Battery: Chemical
Assault and Battery: Flash-Bang Devices
Assault and Battery: Physical
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
First Amendment
Malicious Prosecution
Public Protection: Accident Victims
Search and Seizure: Home/Business
Vehicle Related

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: Chemical

     A man was working at his family's dairy farm when a fight broke out which he and ten other people witnessed. Approximately 20 state and local police officers arrived on the scene after the fight ended. One local officer questioned the man about what he had witnessed. A state trooper then yelled at him to take his hands out of his pockets. The man claimed he complied, although he remarked that his hands were cold as he had been milking cows all day. He then started to walk away, having already told his story to the officer. The trooper, subsequently assisted by other officers, then allegedly grabbed, tackled, punched, kicked, and pepper sprayed the man. He subsequently disputed the man's version of events, asserting that the altercation began when the man resisted efforts to force his hands out of his pockets, and that the man struck him and tackled him. Because of these factual disputes, summary judgment for the officers on excessive force claims was improper. Santini v. Fuentes, #14-2938, 2015 U.S. App. Lexis 13552 (3rd Cir.).

Assault and Battery: Flash-Bang Devices

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

     Police learned of Internet threats against them coming from an IP address located at the home of a 68-year-old African-American woman and her two daughters. The Internet wifi network there was unsecured. Before searching the woman's home, officers observed, two doors away, a man who had previously been convicted of intimidating an officer. Two of the officers believed that he was the likeliest source of the threats. Some officers, however, mistakenly believed that another man made the threats, but surveillance revealed no male present at the woman's house. Despite this, an 11-man all white SWAT team in body armor, accompanied by a news crew, knocked on the door of the house and, without waiting for a response, broke open the door and a window, tossing in two "flash-bang" grenades. The officers then rushed into the house, conducted a search that found no evidence of any crime, and handcuffed the women, leading them outside. The male neighbor was subsequently convicted of using the woman's network to make the threats. A federal appeals court upheld the denial of summary judgment to the defendant officers in an excessive force lawsuit. The court found that the officers acted unreasonably and "precipitately" by using the flash-bangs in the house without a "minimally responsible" investigation of the threats. Milan v. Bolin, #15-1207, 2015 U.S. App. Lexis 13387 (7th Cir.).

     EDITOR'S NOTE: For a discussion of the law surrounding the use of "flash-bang" grenades and similar devices, see Civil Liability for Use of Distraction Devices, Part 1, 2015 (1) AELE Mo. L. J. 101 and Civil Liability for Use of Distraction Devices, Part 2, 2015 (2) AELE Mo. L. J. 101.

Assault and Battery: Physical

     An officer was entitled to qualified immunity in a female motorist's lawsuit claiming that he used excessive force against her during a search of her car after stopping her for a suspected window tint violation. He had probable cause to stop and search her car, and she refused to let him search it, struggling with him to prevent the search and stop him from taking her keys to turn off the car. The only force complained about was two yanks to get her out of the driver's seat. The officer did not use any other force or handcuff her, so his use of force did not violate clearly established law under the circumstances. Merricks v. Adkisson, #14-12801, 785 F.3d 553 (11th Cir. 2015).

False Arrest/Imprisonment: No Warrant

     A motorist claimed that he was arrested for marijuana possession without probable cause when an officer found two leaves in his car during a consensual search during a traffic stop. Charges were later dropped when a crime lab found that the leaves did not contain detectible amounts of Tetrahydrocannabinol (THC), the active ingredient in marijuana. The officer, although ultimately mistaken, was entitled to qualified immunity on a false arrest claim, as a reasonable officer could believe that the leaves found were marijuana, giving him probable cause. New v. Denver, #13-3330, 787 F.3d 895 (8th Cir. 2015).

Firearms Related: Intentional Use

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

     A married couple argued on their wedding anniversary. The husband then went to the garage, drank half of a bottle of vodka, and put a shotgun barrel in his mouth, although he was unable to pull the trigger. The wife called 911 and the deputy who responded shot the man four times. The suicidal man was injured but survived. The deputy was not entitled to qualified immunity, as he kicked in the door within three minutes of arriving, and made no attempt to communicate with the man before entering, so he lacked a reasonable belief that the man posed a threat. Weinmann v. McClone, #14-1794, 787 F.3d 444 (7th Cir. 2015).

First Amendment

     Springfield, Illinois, the state's capital, had an ordinance prohibiting panhandling in the downtown historic district, which was less than 2% of the city's area, containing it main shopping, entertainment, and governmental areas. Panhandling was defined as oral requests for immediate donations of money, while signs requesting money or oral pleas to send money later were both allowed. A federal appeals court previously upheld the ordinance, Norton v. City of Springfield, #13-3581, 768 F.3d 713,2014 U.S. App. Lexis 18439 (7th Cir. 2014), stating that the ordinance was "indifferent to the solicitor's stated reason for seeking money, or whether the requester states any reason at all," and did not interfere with the "marketplace of ideas," but instead imposed a valid restriction based on time, place, and manner--a restriction based on subject matter rather than content.

     The appeals court granted a rehearing after the U.S, Supreme Court's decision in Reed v. Gilbert, #13-502, 2015 U.S. Lexis 4061 (striking down a town's sign code that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including "ideological" or political signs. The Court found these to be content based restrictions that did not survive strict scrutiny.). The appeals court then reversed for further proceedings. In Reed, the Court stated that "A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech" and "a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter." The appeals court expressed the opinion that Reed had effectively abolished any distinction between subject matter regulation and content regulation. As a result, "any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification," as a result of which the appeals court ordered that an injunction be issued against the enforcement of the ordinance. Norton v. City of Springfield, #13-3581, 2015 U.S. App. Lexis 13861 (7th Cir.).

     EDITOR'S NOTE: Under Reed, a speech regulation targeted at specific subject matter is viewed as content based even if it does not discriminate among viewpoints within that subject matter. A concurring judge in the Seventh Circuit case above reasoned that this would mean, for instance, that any regulation of speech implicating an entire topic, such as religion or abortion, for instance, be evaluated as content based and subject to strict scrutiny, and predicted that "Few regulations will survive this rigorous standard."

Malicious Prosecution

     A former police officer was arrested twice on domestic violence complaints by his now estranged wife, with the second arrest based on a warrant. He was subsequently acquitted and sued both the estranged wife and two of the arresting officers for malicious prosecution, based on claims that the wife's medical records contained details inconsistent with her story and that police department policies, if followed during the investigation, should have raised questions as to whether there was probable cause to prosecute. The trial court declined to dismiss the malicious prosecution claim, but a federal appeals court reversed, referring to an "overly charitable" reading of the complaint by the trial court. The defendant officers were entitled to qualified immunity, as the complaint's factual allegations did not set forth conduct plausibly making out a violation of clearly established law. Johnson v. Moseley, #14-5870, 2015 U.S. App. Lexis 9129, 2015 Fed App. 109P (6th Cir.).

Public Protection: Accident Victims

     The estates of two people killed in a drunk driving accident on a Native American reservation sued the federal government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2674, arguing that tribal police were negligent in failing to locate and arrest the drunk driver prior to the accident. A federal appeals court upheld the dismissal of the claim, finding that, under South Dakota law, applicable to the defendant under the FTCA, there was no mandatory duty on police to protect a particular person or class of people absent a special relationship. The tribal police in this case did nothing that increased the risk of harm to the decedents by failing to arrest the drunk driver after his erratic driving was reported. Sorace v. United States, #14-2683, 788 F.3d 758 (8th Cir. 2015).

Search and Seizure: Home/Business

     Two female officers were working off-duty as secondary employment, patrolling an apartment complex. They noticed that the door to a 67-year-old man's apartment was open, and observed him sitting on his couch, leaning on his cane. They attempted to start a conversation with him, and he told them he did not want any attention or help. One of the officers thought the man was being "mouthy," and wanted to keep him from shutting his door. When both officers stepped inside the apartment, the man approached and a fight ensued when one of them allegedly pushed him and he pushed back. The officers allegedly repeatedly struck the man and knocked off his glasses. He repeatedly told them to get out of his residence. One of the officers, who had exited to call for backup, reached inside to pull the other officer out. The man refused to obey an instruction to lie down, and he was allegedly getting his cane. One of the officers then fired two shots into the apartment, killing the man. It was not clear whether the man was holding his cane when he was shot.

     A federal appeals court held that neither officer was entitled to qualified immunity on unlawful entry claims, and that the officer who fired the shots was not entitled to qualified immunity on on excessive use of lethal force claim, but that both officers were entitled to qualified immunity on claims concerning the use of non-lethal force which caused minimal injury. Taking the facts in the light most favorable to the plaintiff, it could not be said that the officers had any basis for an unconsented warrantless entry into the apartment, despite the officers' argument that they thought the man might have needed assistance, or that there was any legal basis to shoot and kill the man, A reasonable jury could find that the officer used deadly force against a person who did not pose an immediate threat of serious physical injury or death. The appeals court had to assume, for purposes of its decision, that the decedent was not swinging his cane at the officers when he was shot. Ellison v. Lesher, #13-3371, 788 F.3d 758 (8th Cir. 2015).

Vehicle Related

     A police sergeant ending his shift drove home in his squad car, going at a high rate of speed and with his lights flashing. After he ran a red light, he hit a motorist's car, killing the driver and seriously injuring a passenger. The surviving passenger and her parents filed a federal civil rights lawsuit against the sergeant seeking damages. A trial court rejected his motion seeking qualified immunity. A federal appeals court upheld this result.

     "We've encountered plenty of cases involving officers responding to emergency calls who unintentionally cause traffic accidents," the appeals court stated. "But we haven't encountered many cases involving deadly traffic accidents with officers speeding on their own business presumably (hopefully) because such things happen rarely. Even so, the Supreme Court and this court have both spoken unmistakably to this situation." When a private person suffers a serious physical injury due to a police officer's intentional misuse of his vehicle, a viable due process claim can arise. Browder v. City of Albuquerque, #14-2048, 787 F.3d 1076 (10th Cir. 2015).

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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

     Dogs: Using Canines to Address School Violence, by Courtney Grubb, Tod W. Burke, and Stephen S. Owen, FBI Law Enforcement Bulletin (August 2015).

     Firearms Related: Mass Murder with Firarms: Incidents and Victims, 1999-2013, by William J. Krouse and Daniel J. Richardson, Congressional Research Service (July 30, 2015).

     Interrogation: Exploiting Verbal Markers of Deception Across Ethnic Lines: An Investigative Tool for Cross-Cultural Interviewing, by Tony Sandoval, David Matsumoto, Hyisung C. Hwang, and Lisa Skinner, FBI Law Enforcement Bulletin (July 2015).

     National Security: Independent APA review on national security interrogations (July 2015).

  Reference:

Cross References
Assault and Battery: Physical -- See also, Assault and Battery: Chemical
Domestic Violence -- See also, Malicious Prosecution
Federal Tort Claims Act -- See also, Public Protection: Accident Victims
Firearms Related: Intentional Use -- See also, Search and Seizure: Home/Business
Public Protection: Motoring Public -- See also, Public Protection: Accident Victims
Public Protection: Suicidal Persons -- See also, Firearms Related: Intentional Use
Search and Seizure: Home/Business -- See also, Assault and Battery: Flash-Bang Devices
Search and Seizure: Vehicle -- See also, Assault and Battery: Physical

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