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 October
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CONTENTS

Digest Topics

Assault and Battery: Physical
Defamation
Electronic Control Weapons: Dart Mode
Emotional Distress
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
First Amendment
Search and Seizure: Home/Business
Search and Seizure: Person (2 cases)

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

     Summary judgment was improperly granted to a police detective on a suspect's excessive force lawsuit. No officer in 2009 could reasonably have believed that it was permissible under the Fourth Amendment to jump on the back of a prone and compliant suspect gratuitously with enough force to break his spine and rib, as the plaintiff alleged. Rogoz v. City of Hartford, #14-0876, 2015 U.S. App. Lexis 13945 (2nd Cir.).

Defamation

     As a man was finishing his elected term as county sheriff, his 14-year-old stepdaughter accused hin of having sexually abused her while assisting her in applying chigger medicine. A city police officer interviewed the daughter, and a state child protective agency notified state police, resulting in an interview of the daughter by a state police investigator. The sheriff denied the accusation, and the girl's sister, another stepdaughter, said her sister was lying because the sheriff and her mother were too strict. The first stepdaughter recanted her accusations and a prosecutor decided not to press charges, but the accusation became widely known in th community. The state police investigator allegedly talked about the case to a lot of people with whom he had no right to share the details of the investigation, and rumors flew, including a false story that the sheriff was an arsonist. The ex-sheriff filed a federal civil rights lawsuit against the state police investigator and his supervisor, claiming that their actions had denied him his right to liberty in his occupation of choice, in violation of due process.

     A federal appeals court upheld summary judgment for the defendants, ruling that the plaintiff had failed to show that any liberty interest was interfered with. Even if the defendants defamed him, they did nothing that altered his legal status. Further, the defendants were not shown to have placed the plaintiff's name on a list that, under a state statute, would have ended his previously granted right to serve in positions of law enforcement management. His argument that the alleged defamation rendered him unqualified under state law to serve in law enforcement was negated by the fact that he subsequently received a state license for work as a private investigator. Hinkle v. White, #14-2254, 793 F.3d 764 (7th Cir. 2015).

Electronic Control Weapons: Dart Mode

     A man consumed several alcoholic drinks and then made several "erratic" calls to 911 complaining about someone with a gun at a nearby bar, and used various obscenities to the dispatcher, getting into a heated exchange. When officers arrived at his residence, he locked his door and retreated upon seeing them. They feared that someone inside might need help, so they broke down the door and entered. They found the man hiding under a sheet in his dark basement. What followed was disputed. The man claimed that he did not realize that the officers were police and feared that they were members of a motorcycle gang breaking into his house. When officers pulled the sheet off his head, the man claimed that he did not resist, but merely put his hands up and legs out, saying "You got me." An officer fired his Taser in the dart mode into the man's chest. He claimed he was given no warning or opportunity to give himself up for handcuffing. The officers claimed that the man was in a crouching position and would not comply with orders to present his hands for handcuffing, and that warning was given before the Taser was used. The man was also allegedly seen reaching towards his waistband. The Taser was activated again in the dart mode and then in the stun mode twice as the man allegedly continued to fail to comply with orders, after which the man was handcuffed. The officer who used the Taser testified that he feared that the noncompliant man might have had a gun.

     A federal appeals court found that the officers were entitled to qualified immunity on a warrantless entry claim because it was not clearly established that no exigent circumstance existed when the officers entered a residence in response to multiple erratic 911 calls from there and when they believed that someone inside may have threatened the use of a gun. But the man could go forward with his excessive force claim because it was disputed whether he resisted or not and whether he was given an opportunity to comply with commands before, and while, the Taser was being used on him. The appeals court further ruled that summary judgment was inappropriate at this time as to municipal liability claims and state law excessive force claims. On the municipal liability claim, the trial court had rejected it because it also rejected the excessive force claim against the officers. As the appeals court reinstated that claim, the trial court needed to consider the issue of whether that use of force occurred pursuant to some official policy or custom. Gradisher v. City of Akron, #14-3973, 2015 Fed. App. 0160P, 2015 U.S. App. Lexis 12814 (6th Cir.).

Emotional Distress

     Two homosexual men arrested at home in the early morning on charges of assaulting an officer claimed that the arresting officers refused to allow them to get additional clothing, forcing them to remain in their boxer shorts and only issuing them jumpsuits after they got to the police station. The plaintiffs had repeatedly changed their story, now contending that officers repeatedly struck them and violated their equal protection rights as homosexuals by forcing them to remain in their shorts. They also asserted claims for intentional infliction of emotional distress. The officers moved for summary judgment and the plaintiffs then filed affidavits in response, based on "personal knowledge and belief," for the first time revealing which officers they claimed committed each act. The appeals court upheld the trial's court's rulings striking the affidavits since it was not possible to tell which statements in the affidavits were based on personal knowledge, as required, and which were only based on mere belief. Without the affidavits, the defendants were entitled to judgment as a matter of law, even construing any remaining evidence in the light most favorable to the plaintiffs. The court also stated that the complaint about being kept in boxer shorts, even if motivated in part by reaction to the plaintiffs' homosexuality, was not unconstitutional. Ondo v. City of Cleveland, #14-3527, 2015 U.S. App. Lexis 13474, 2015 Fed. App. 175P (6th Cir.).

False Arrest/Imprisonment: No Warrant

     A man told an officer that while he was sleeping his neighbor had entered his home, possibly by prying open a bathroom window, grabbed and threatened him, and put his hand down the front of his pants. When the officer questioned the neighbor, he allegedly said, without prompting, that he had not entered the man's bathroom or gotten into his pants. The neighbor later denied having made these statements. The complainant identified the neighbor as the man who had assaulted him. The officer arrested the neighbor on a variety of charges and he was later acquitted. A federal appeals court found that the officer had probable cause for the arrest and that the officer abd the city were both immune from Indiana state law malicious prosecution claims. A federal malicious prosecution claim could not go forward as the plaintiff did not allege a separate constitutional injury or show that the officer lacked probable cause or acted with malice. Howlett v. Hack, #14-1351, 794 F.3d 721 (7th Cir. 2015).

Firearms Related: Intentional Use

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

     An officer who shot a man as he sped away from breaking into his estranged wife's apartment was entitled to qualified immunity and summary judgment. It was not clearly established, at the date of the incident, that it was unconstitutional to shoot a fleeing driver to protect persons whom his flight might endanger. In this case, the officer consistently maintained that his actions were motivated by fear for his own life as well as the life of another officer, as the suspect's car lurched forward towards the officers, and the firing officer, holding onto the car door, was briefly turned around by its motion. Mitchell v.Miller, #14-2116, 790 F.3d 73 (1st Cir. 2015).

First Amendment

     A federal statute, 40 U.S.C. Sec. 6135, prohibits parading, standing, or moving in processions or assemblages in the U.S. Supreme Court building or the surrounding grounds, or displaying there a flag, banner, or device designed to bring into public notice a party, organization, or movement. A plaintiff who wished to picket, leaflet, and make speeches in the Supreme Court plaza to convey political messages claimed that the law violated the First Amendment. A federal appeals court, reversing the trial court, found the statue constitutional. It held that the Supreme Court's plaza was a nonpublic forum, and that the government could impose reasonable restrictions on speech there as long as it did not suppress particular viewpoints in doing so. There were long-standing governmental interests in preserving decorum in the area of the courthouse and in ensuring the appearance and actuality of a Court uninfluenced by public pressure and opinion. Further there was an available alternative site for expressive activity in the immediate area, the public sidewalk directly in front of the plaza. Hodge v. Talkin, #13-5250, 2015 U.S. App. Lexis 15190 (D.C. Cir.).

Search and Seizure: Home/Business

     A trial court erred in dismissing, on qualified immunity grounds, claims that agents of the Puerto Rico Treasury Department violated the Fourth Amendment in seizing, without a warrant, their "adult entertainment machines" (arcade like game machines sometimes allegedly unlawfully used as gambling devices) from various business locations. The trial court failed to address the necessary issues of whether a regulatory regime for the machines provided an acceptable substitute for a warrant, or the permissible scope of the search. The plaintiff's waived, however, a Fourteenth Amendment due process claim as to denial of a pre-seizure hearing as they failed to provide a comparison of the benefit of such a hearing, involving the probability of a mistaken deprivation and the property's value, to the cost of such a hearing or show that a post-seizure hearing was inadequate. Rivera-Corraliza v. Puig-Morales, #13-2138, 794 F.3d 208 (1st Cir. 2015).

Search and Seizure: Person

     A deputy sheriff stopped a female motorist for a traffic violation. She smelled of alcohol, had poor balance, failed field sobriety tests, and registered a blood-alcohol concentration of .109--beyond the applicable .08 legal threshold for intoxication on a preliminary breath test. The deputy tried to obtain consent for a urine or blood test to confirm the intoxication as provided by a state statute. The motorist was informed that under a state implied consent statute refusal to take a test was a crime and that she could consult an attorney before making a decision. She waived having an attorney and consented to a urine test, but did not produce a sample within 45 minutes. She was then taken to a medical center, where she agreed to a blood test. The DWI charge was later dismissed and the driver pled guilty to a petty misdemeanor traffic violation. The driver sued, arguing that the county had an unconstitutional policy or custom of conducting warrantless, nonconsensual blood-alcohol tests that violated the Fourth Amendment. A federal appeals court ruled that the driver's consent had made the blood draw constitutional, and that the dilemma of eiher having to consent or face prosecution for failure to do so did not nullify her otherwise uninhibited consent. The deputy only requested a fluid sample after the driver failed a number of field tests, including the preliminary breath test, which gave the deputy probable cause to believe that the driver had been driving while intoxicated. Wall v. Stanek, #14-2878, 794 F.3d 890 (8th Cir. 2015).

     The City of Chicago Police Department and the Illinois ACLU, without litigation, negotiated a settlement agreement which will result in monitoring how officers in the city conduct street stop and frisks. The ACLU sought the agreement based on concerns that officers were disproportionately targeting minorities for such searches. The monitoring will involve documenting all such searches, not only those which result in an arrest. A jointly named independent consultant, a former U.S. magistrate judge, will issue public reports based on the monitoring twice a year and will recommend changes in policy. Additional training will be conducted, pursuant to the settlement to try to make sure that officers do not use race, ethnicity, gender, or sexual orientation when deciding to stop and frisk, except when those are listed characteristics in a specific suspect description. The complete text of the agreement may be read at the link. Investigatory Stop and Protective Pat Down Settlement Agreement, City of Chicago and Illinois ACLU (August 6, 2015).

     Editor's Note: The Illinois ACLU produced a critical report entitled Stop and Frisk in Chicago in March of 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

     Statistics: NYPD Inspector General Report: Using Data from Lawsuits and Legal Claims Involving NYPD to Improve Policing (April 2015).

     Terrorism and National Security: Report to the Special Committee of the Board of Directors of the American Psychological Association. Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture, Sidley Austin LLP (July 2, 2015).

     Use of Force: Re-Engineering Training on Police Use of Force, Police Executive Research Forum (August, 2015).

  Reference:

Cross References
Assault and Battery: Physical -- See also, Emotional Distress
Malicious Prosecution -- See also, False Arrest/Imprisonment: No Warrant
Race Discrimination: Racial or ethnic profiling on traffic or street stops or enforcement efforts -- See also, Search and Seizure: Person
Search and Seizure: Home/Business -- See also, Electronic Control Weapons: Dart Mode
Sexual Orientation Discrimination -- See also, Emotional Distress

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