AELE Seminars

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: 2016 LR April
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CONTENTS

Digest Topics

Assault and Battery: Physical
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Firearms Related: Accidental Use
Firearms Related: Intentional Use (2 cases)
Firearms Related: Second Amendment Issues (2 cases)
Malicious Prosecution
Search and Seizure: Vehicle
Resources

Cross References


AELE Seminars

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 investigating an armed robbery gave chase to a 16-year-old boy. A neighbor informed one of the officers that they were chasing a boy with Down Syndrome, and the officer allegedly replied "shut up, get out of my way." The boy stopped running at a parking lot where his family was waiting. The same officer admitted that he saw the boy surrendering, but allegedly grabbed him from behind, forcefully pulled him from his mother's arms, and slammed him hard into a vehicle. The boy allegedly was not resisting and was crying in pain as he was handcuffed, and was kept pinned by the officer, who was twice his weight, for 15 minutes while telling the boy's parents that they were lucky he "didn't shoot." The second officer, according to the plaintiffs, did nothing, but did hurl racial slurs at the Hispanic family. When the officers were informed by radio that the robbers were caught, they released the boy. A federal appeals court upheld the denial of qualified immunity, finding that, if the facts were as alleged, a jury could conclude that excessive force was used, and that the second officer could be held liable on a failure to intervene claim. Ortiz v. Kazimer, #15-3453, 811 F.3d 848 (6th Cir. 2016).

False Arrest/Imprisonment: No Warrant

     Two African-American men and four female friends, some of whom were Caucasian, walked past a police precinct while leaving an entertainment district where they had spent the evening drinking. Off-duty officers, including an African-American man, congregated in a nearby parking lot and were drinking. The African-American officer approached the group passing by and told them to move along, and referred to some of the females in the group as "snow bunnies," intended as a racial slur. One of the men questioned who the officer was. The officer allegedly said, "I'll show you who I am," and attacked the man. Other off-duty officers then joined in punching and kicking, and shouted "stop resisting arrest." Both men were taken into custody and taken to a hospital. Charges of resisting, public intoxication, and disorderly conduct were dismissed. Qualified immunity was denied to the off-duty African-American officer, as a jury could reasonably find that his conduct violated the arrestees' rights. McDonald v. Flake, #14-6370, 2016 U.S. App. Lexis 3627 (6th Cir.).

False Arrest/Imprisonment: Warrant

     A man claimed that he was wrongfully incarcerated based on a felony arrest warrant for a man with the same first and last name, the same birth date, and a different middle name. While his initial arrest for DUI was valid, the warrant under which he was subsequently held described a man nine inches shorter and 40 pounds lighter, and even a cursory comparison should have led officers to question whether the person described in the warrant was the plaintiff. The defendants were not entitled to qualified immunity. Garcia v. Cnty. of Riverside, #13-56857, 811 F.3d 1220 (9th Cir. 2016).

Firearms Related: Accidental Use

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

     An elderly African-American man, described as innocent, was shot and killed by an officer during a SWAT team raid executing a search warrant for drugs and paraphernalia on his home, where two drug dealers were thought to reside. A lawsuit argued that the officer violated the decedent's rights by pointing a loaded semi-automatic rifle at his head with the safety off and a finger on the trigger, even though he was compliant and posed no known threat. Rejecting the officer's argument that he was entitled to qualified immunity because the shooting was accidental and not a violation of clearly established law, the federal appeals court found that the law was sufficiently established to put the officer on notice that his actions were not constitutionally permissible. Stamps v. Town of Framingham, #15-1141 2016 U.S. App. Lexis 2026 (1st Cir.).

Firearms Related: Intentional Use

     Three officers shot a man after he raised a gun in their direction. He survived and was charged with assault, but charges were dismissed on speedy trial grounds. He sued for excessive force, claiming that the officers failed to give a warning before firing on him. A jury returned a verdict for the officers. A federal appeals court upheld this result. The plaintiff "was adequately warned to drop a weapon he was wielding at the time of the shooting." Cordova v. City of Albuquerque, #14-2083, 2016 U.S. App. Lexis 4309 (10th Cir.).

     A man was shot to death through a window of his home by one of three state police officers investigating an earlier highway road rage incident involving his brother. A federal appeals court upheld the denial of qualified immunity to the officers. Taking the facts in the light most favorable to the plaintiff, the issue was whether a jury could find the force used against the decedent excessive under circumstances. There was an officer outside the man's home in the dark of night with no probable cause to arrest anyone and behind the cover of a wall 50 feet away from a possible threat, and with no warning he shot a man pointing his gun out of his well-lighted window at an unknown person in his yard while the man's brother fired protective shots in the air from behind the house. An objectively reasonable officer in this position should know that a homeowner has the right to protect his home against intruders and that the officer had no right to immediately use deadly force in these circumstances, the court reasoned. Pauly v. White, #14-2035, 2016 U.S. App. Lexis 2184 (10th Cir.).

Firearms Related: Second Amendment Issues

     A number of plaintiffs filed suit raising Second Amendment challenges to a Maryland state statute barring law-abiding citizens with the exception of law enforcement officers from possessing the vast majority of semi-automatic rifles which the plaintiffs claimed were commonly kept by several million Americans for defending their families and homes and other lawful purposes. The lawsuit also challenged a ban on possession of detachable ammunition magazines holding more than 10 rounds. A federal appeals court held that Second Amendment rights were implicated, that the burden on such rights was substantial, and that strict scrutiny was the appropriate standard for review of the Second Amendment issues. The appeals court therefore vacated the dismissal of these claims and ordered further proceedings to apply the strict scrutiny standard. The appeals court did uphold, however, the trial court's rejection of the plaintiffs' equal protection challenges to the law enforcement exception to the statute. Kolbe v. Hogan, Jr., #14-1945, 2016 U.S. App. Lexis 1883 (4th Cir.). A rehearing en banc was subsequently granted on March 4, 2016 in Stephen v. Kolbe, #14-1945, 2015 U.S. App. Lexis 4195 (Unpub. 4th Cir.).

     The District of Columbia adopted a statute requiring those seeking a license to carry concealed weapons to show a "good reason" why the license should be issued. A federal trial judge who was a visiting judge from the Northern District of New York issued a preliminary injunction restraining enforcement of the "good cause" standard. A federal appeals court, without reaching the merits, vacated the order on jurisdictional grounds. While the visiting judge served under a properly issued designation, that designation was limited to specific and enumerated cases, and the appeals court concluded that the litigation over the D.C. firearms legislation was not among those cases. Wrenn v. District of Columbia, #15-7057, 808 F.3d 81(D.C. Cir. 2015).

Malicious Prosecution

     A woman claimed that two city parking enforcement officers falsely reported to police that she had hit them with her truck after they issued her a parking ticket. She filed a federal civil rights lawsuit for malicious prosecution under 42 U.S.C. Sec. 1983. A federal appeals court upheld summary judgment for the defendant parking enforcement officers, holding that in filing the allegedly false report to police they did not act "under color of state law. There was no nexus between their authority to issue parking tickets and impound vehicles and their alleged conduct of lying in witness statements and at a probable cause hearing. The defendants also did not engage in a joint action with police when they reported their encounter and then testified against her. Schaffer v. Salt Lake City Corp., #14-4112, 2016 U.S. App. Lexis 3846 (10th Cir.).

Search and Seizure: Vehicle

     A boat owner claimed that a city and its officers unlawfully seized his sailboat and destroyed it without justification or notice. A federal appeals court, reinstating some of the plaintiff's claims, including procedural due process and search and seizure, found that the trial court acted erroneously in applying a "heightened pleading" burden. All the plaintiff needed to do to establish municipal liability was allege a policy, practice, or custom of the city which caused the seizure and destruction of his sailboat, which he did. His complaint did not need to specifically identify the municipality's final policymaker by name. He also sufficiently stated a claim for an unconstitutional seizure under the Fourth Amendment. Hoefling, Jr. v. City of Miami, #14-12482, 811 F.3d 1271 (11th Cir. 2016).

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AELE Seminars

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

     Police Injuries: Pattern of law-enforcement related injuries in the United States, by DC Chang, M Williams, NF Sangji, LD Britt, and SO Rogers Jr., J Trauma Acute Care Surg. 2016 Feb. 16 (abstract).

     Use of Force: Critical Issues in Policing Series. Use of Force: Taking Policing to a Higher Standard, Police Executive Research Forum (January 29, 2016).

  Reference:

Cross References
Assault and Battery: Physical -- See also, False Arrest/Imprisonment: No Warrant
Governmental Liability: Policy/Custom -- See also, Search and Seizure: Vehicle
Off-Duty: Arrest Related -- See also, False Arrest/Imprisonment: No Warrant
Off-Duty: Assault and Battery -- See also, False Arrest/Imprisonment: No Warrant
Property -- See also, Search and Seizure: Vehicle

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