AELE Seminars

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

Public Safety Discipline and Internal Investigations
Oct. 24-26, 2016 Orleans Hotel, Las Vegas

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 November
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CONTENTS

Digest Topics
Assault and Battery: Physical
Domestic Violence and Child Abuse
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (2 cases)
Firearms Related: Second Amendment Issues
First Amendment (2 cases)
Malicious Prosecution

Resources

Cross References


AELE Seminars

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

Public Safety Discipline and Internal Investigations
Oct. 24-26, 2016 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     Officers pursuing a man's son following a vehicular pursuit arrived at the father's house. The father claimed that while the officers were attempting to subdue his son, who they mistakenly believed had an outstanding arrest warrant, one of them kicked him and another tackled him from behind. The officers disputed his version of the events. An appeals court found that, under either version of events, the officers could reasonably believe that the father was trying to interfere with a lawful arrest and therefore did not use excessive force under the circumstances. Dawson v. Brown, #15-1517, 2015 U.S. App. Lexis 17581 (7th Cir.).

Domestic Violence and Child Abuse

     Parents lost physical custody of their injured infant son after the mother took the child to a state university hospital seeking treatment and a medical director there suspected abuse, leading to months of proceedings before the child was returned. A federal appeals court found that the plaintiff's version of the evidence supported a claim that the medical director seized the child, doing so without exigent circumstances, and that it was clearly established that doing so violated the plaintiffs' constitutional rights. The defendant was not entitled, under these circumstances to state statutory immunities for those mandated to report suspected child abuse. Jones v. Wang, #12-55995, 2015 U.S. App. Lexis 16725 (9th Cir.).

False Arrest/Imprisonment: No Warrant

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

     In the course of investigating a reported disturbance in an apartment building parking lot, an officer knocked on an apartment door where it was possible the people involved in the disturbance had gone. The man who answered the door denied any involvement in the earlier dispute and declined to identify himself. The officer reached inside the apartment, handcuffed the man, and arrested him on the basis of his refusal to provide biographical information or identity. A federal appeals court held that in the absence of exigent circumstances, an officer could not lawfully conduct the equivalent of a Terry investigative stop inside a man's residence. But in this case, since the law on that subject was not clearly established, the officer was entitled to qualified immunity on an unlawful arrest claim. Moore v. Pederson, #14-14201, 2015 U.S. App. Lexis 16440 (11th Cir.).

False Arrest/Imprisonment: Warrant

     A man was arrested in his girlfriend's apartment nine days after he committed a home robbery. He was convicted of various criminal charges and sentenced to 40 years in prison, but sued sheriff's deputies, claiming that their arrest of him violated the Fourth Amendment. The fact that there was an outstanding arrest warrant for the plaintiff was all that the detectives needed to be justified in making the arrest, even though they didn't know about the existence of the warrant, a federal appeals court held. Factual issues about whether the girlfriend consented to the detectives entry into the apartment or merely did not object were irrelevant when they did not enter until they saw the plaintiff and therefore knew that they had found their robbery suspect. Cook v. O'Neill, #14-1641, 2015 U.S. App. Lexis 16838 (7th Cir.).

Firearms Related: Intentional Use

     Police responding to a report of suicidal man armed with a knife came into a residence. The man did not drop the knife in response to commands and stepped forward, but was holding the small kitchen knife loosely near his side. One officer shot him and a second officer fired a Taser in the dart mode at him. The lawsuit alleged that the use of deadly force was excessive and in violation of clearly established law on two theories--the first that the officer shot him without probable cause to believe that he posed a threat of serious physical harm to the officers or any other person, and the second that the officers recklessly created the situation that led to the use of deadly force. The federal appeals court, upholding a denial of summary judgment on the basis of qualified immunity to the officer, found that the evidence would support a finding of a violation of clearly established rights under the first theory, and therefore declined to discuss the second theory. When the man was shot, according to his version of events, he was not charging the officers, had made no aggressive moves, was not within walking distance of the officers, and the plaintiff had not been given sufficient time to comply with an order to drop the knife. The opinion does not discuss whether the use of the Taser was reasonable under these circumstances. Tenorio v. Pitzer, #14-2114, 2015 U.S. App. Lexis 17540 (10th Cir.).

     Allegations that two officers shot and severely injured a 17-year-old when he was holding a gun to his own head, and not pointing it at the officers as they claimed, if true, would constitute excessive force. Based on this dispute of material fact, a federal appeals court dismissed the appeal of the denial of qualified immunity on the excessive force claim for lack of jurisdiction. The appeals court also upheld the trial court's refusal to dismiss a Fourteenth Amendment due process claim that after the incident an officer intentionally fabricated evidence to cover up his colleagues' actions and get the teenager falsely charged with aggravated assault on the officers. Cole v. Hunter, #14-10228, 2015 U.S. App. Lexis 17011 (5th Cir.).

Firearms Related: Second Amendment Issues

      A federal appeals court upheld against Second Amendment challenges, District of Columbia statutes that required basic registration of long guns, a requirement that those registering firearms be photographed and fingerprinted, and a requirement that those registering the guns personally appear and pay a fee, as well as that they complete a firearms safety and training course. It struck down, however, requirements that a person registering a firearm bring it with them when registering, that they re-register it every three years, that registration be conditioned on passing a test of knowledge of D.C. firearms laws, and a prohibition on registering more than one pistol per registrant during a 30 day period. Heller v. D.C., #14-7071, 2015 U.S. App. Lexis 16632 (D.C. Cir.).

First Amendment

     A music group called the Insane Clown Posse had numerous devoted fans who called themselves "Juggalos" and often displayed on their property or person insignia representing the band, including tattoos and painting their faces like clowns. The National Gang Intelligence Center, operated by the FBI, issued a 2011 congressionally mandated report on gang activity that identified the Juggalos as a "hybrid gang," and relayed information about criminal activity said to have been committed by subsets of the Juggalos. A number of such fans claimed that this caused them to suffer violations of their First and Fifth Amendment rights by state and local law enforcement officers who were "motivated" to cause these injuries and detentions and searches by the identification of the group as a criminal gang. A lawsuit against the FBI and Department of Justice was filed under the Administrative Procedures Act and the Declaratory Judgment Act. A federal appeals court overturned the dismissal of the lawsuit for lack of standing. The plaintiffs adequately alleged that the harm to their reputations and chill to their First Amendment activities was caused by the report and those injuries could likely be alleviated by the relief sought, such as an order holding the classification of the Juggalos as a criminal street gang to be unlawful. Parsons v. Dep't of Justice, #14-1848, 2015 U.S. App. Lexis 16528, 2015 Fed. App. 0230P (6tth Cir.).

     A federal appeals court upheld an injunction against enforcement of a city ordinance barring standing, sitting, staying, driving, or parking on median strips. The ordinance was found to violate the constitutional right of free speech because it "indiscriminately" outlaws almost any expressive activity in all of the city's median strips. Further, it was found not to be narrowly tailored to serve the city's indicated interests in protecting people in the streets and on medians. Such medians historically were traditional public forums based on their past uses, and had routinely, prior to enactment of the ordinance, been the site of many types of protected speech including election campaigning, charitable contribution solicitations, and political protests. Cutting v. City of Portland, Maine, #14-1421, 2015 U.S. App. Lexis 16206 (1st Cir.).

Malicious Prosecution

      A trial court did not act erroneously in denying qualified immunity as a matter of law to a former audit investigator and former prosecutor on claims that they denied the plaintiff a fair trial by intentionally manipulating data displayed on spreadsheet summary charts presented to a grand jury to create a false impression that he had billed Medicaid for dental services never performed. This led to his indictment and trial, and although he was acquitted, he lost his dental practice as well as suffering other damages. The knowing creation of false or misleading evidence by a government employee acting in an investigative capacity has been clearly established as constituting an unconstitutional violation of rights. The jury awarded the plaintiff $6,724,936 in compensatory damages and $1 million in punitive damages, and the plaintiff accepted a reduction to compensatory damages of $4,624,936 and punitive damages of $100,000, rather than undergoing a new trial on damages. Morse v. Fusto, #13-4074, 2015 U.S. App. Lexis 16154 (2nd Cir.).

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AELE Seminars

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

Public Safety Discipline and Internal Investigations
Oct. 24-26, 2016 Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Electronic Surveillance: Conducting 24/7 Electronic Stakeouts to Address Property Crimes, by Travis Martinez, FBI Law Enforcement Bulletin (October 2015).

     Statistics: Assessment of Coverage in the Arrest-Related Deaths Program, by Duren Banks, Lance Couzens, and Michael Planty, Bureau of Justice Statistics (October 8, 2015 NCJ 249099).

     Statistics: Victims of Identity Theft, 2014, by Erika Harrell, Bureau of Justice Statistics (September 27, 2015 NCJ 248991).

  Reference:

Cross References
Electronic Control Weapons: Dart Mode Cases -- See also, Firearms Related: Intentional Use (1st case)
Public Protection: Disturbed/Suicidal Persons -- See also, Firearms Related: Intentional Use (both cases)
Search and Seizure: Home/Business -- See also, False Arrest/Imprisonment: Warrant

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