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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2016 LR May
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CONTENTS

Digest Topics
Disability Discrimination
Dogs (2 cases)
Electronic Control Weapons: Dart Mode and Stun Mode
False Arrest/Imprisonment: No Warrant
Federal Tort Claims Act
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
Search and Seizure: Home/Business (2 cases)

Resources

Cross References


AELE Seminars

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

Disability Discrimination

     A seven-year-old second grade student in a public school received special education services because of autism. One morning, he disrupted his class, ran away from the staff, kicked a social worker, and kicked and shot rubber bands at a school security officer. To protect the student and others, the security officer handcuffed the child to a chair. Before doing so, the officer called the child's mother, who granted her permission to restrain him, and repeatedly warned the child to calm down. The officer was aware of the child's disability. Afterwards, the child's parents sued the school system under the Americans with Disabilities Act, arguing that it denied the child a protected benefit of education and discriminated against him on the basis of disability. A federal appeals court upheld summary judgment for the defendant, agreeing that the plaintiffs had failed to show disability discrimination either by showing denial of a protected benefit, the implementation of a policy that imposed a disparate impact on the disabled, or failing to act on a request for reasonable accommodation. J. V. v. Albuquerque Public Schools, #15-2071, 813 F.3d 1289 (10th Cir. 2016).

Dogs

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

     A woman returned to her workplace office after going drinking with friends at night. She fell asleep on her office couch and accidentally triggered the burglar alarm in the building when she got up to use the bathroom. Officers responding to the burglar alarm released a police dog which attacked her and bit her upper lip. She sued the city, claiming that a policy of training police dogs to "bite and hold" persons resulted in a violation of her Fourth Amendment rights. Overturning summary judgment for the city, a federal appeals court held that a reasonable jury could conclude that the officers in this case used excessive force by deliberately unleashing a police dog which he knew might well rip the face off of any individual present in the office. The city conceded that the use of force conformed to its policy, and a reasonable jury could found the force to be excessive. Lowry v. City of San Diego, #13-56141, 2016 U.S. App. Lexis 5989 (9th Cir.).

     After burglarizing a home, a man saw a police vehicle and fled down an alley, hiding in the above-ground swimming pool in the backyard of a different building. A police sergeant on canine duty came to the location and released his 72-pound dog on a 30-foot leash, announcing his presence two times. The dog started barking by the pool, and three other officers arrived. The plaintiff was then bleeding, and screaming that the dog had bitten him, requesting medical assistance. He was handcuffed in a squad car and then taken to a hospital. Overturning summary judgment for the defendants, a federal appeals court held that the trial judge erred in holding that it was reasonable under the Fourth Amendment to order, as the plaintiff claimed, a dog to attack a burglary suspect who had then ceased fleeing, was effectively trapped, and who immediately complied with police orders. It was disputed whether he had actually been complying. Alicea v. Thomas, #15-1255, 2016 U.S. App. Lexis 3792 (7th Cir.).

Electronic Control Weapons: Dart Mode and Stun Mode

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

     A woman called 911 and told the operator that her son had taken "very bad drugs" and that she was afraid of what he might do. Two officers were sent to perform a welfare check. They were told that there had been a verbal fight and that no weapons were involved. They were also told that the son was mentally ill and possibly on drugs. When the officers arrived, the son was pedaling his bicycle, and they used their patrol cars to force him into a parking lot, and one officer pursued him on foot, pushing him off his bike. The officers did not tell him why he was being pursued or seized and never asked him to halt. An officer attempted to reach for the son's hands to try to detain him, but he struggled, while holding a crucifix. The second officer instructed the first to use his Taser. The Taser was first fired in the dart mode and when that proved ineffective, the Taser was used in the stun mode and activated ten times in two minutes. The son was then on the ground on his stomach with both officers on top of him. He stopped breathing and died. Upholding a denial of qualified immunity to the officers, the federal appeals court held that, if the facts were as alleged, the repeated use of the Taser under these circumstances after he was subdued constituted excessive force and violated clearly established law. Any possible threat the son may have posed to the officers disappeared after he was subdued. Perea v. Baca, #14-2214, 2016 U.S. App. Lexis 6127 (10th Cir.).

False Arrest/Imprisonment: No Warrant

     A man engaged in street preaching was arrested in several incidents while carrying a shofar, a trumpet-like instrument made from a ram's horn. commonly used in Jewish high holiday services to make loud noises. He was arrested for possessing the shofar, which officers contended violated an ordinance specifying the dimensions of signs and objects that could be carried during street demonstrations. The shofar was 37 inches long and 6 inches wide. The ordinance stated that "All objects which are generally rectangular in shape shall not exceed one-fourth inch in thickness and two inches in width," and "All objects which are not generally rectangular in shape shall not exceed three-quarters inch in their thickest dimension." A federal appeals court held that the arresting officers were entitled to qualified immunity for the arrest. They did not violate the Fourth Amendment, as possession of the shofar provided a reasonable basis for his detention, quite apart from disputed factual issues as to whether or not he complied with officers' orders or stepped into the roadway. The officers also did not violate the plaintiff's First Amendment rights, and it was clear that they did not know of the religious significance of the shofar. Allen v. Cisneros, #15-20264, 2016 U.S. App. Lexis 4401 (5th Cir.).

Federal Tort Claims Act

   Three masked intruders who invaded a family home shot and killed the husband ad daughter and shot the wife in the arm. The wife sued the federal government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b)(1), 2680(a), claiming that the FBI had possessed information about the impending home invasion but had failed to disclose it to local law enforcement. She argued that such a disclosure might have prevented the crime. The federal appeals court upheld the dismissal of the lawsuit, agreeing that the FBI's decision as to whether to disclose such information was the type of decision that Congress intended to shield from liability under the statute and was covered by a discretionary function exception to liability. The decision involved policy judgments about the reliability of the information, the relative importance of the crime, and the FBI's mission and resources. Gonzalez v. United States, #13-15218, 2016 U.S. App. Lexis 3195 (9th Cir.).

Firearms Related: Intentional Use

     During the execution of a warrant to collect certain business records of a gold purchasing business, an officer fatally shot a male employee present on the premises at the time. The city's police chief was entitled to qualified immunity because the plaintiffs produced no evidence that he was involved in any way in the execution of the warrant or the man's death. The officer was also entitled to qualified immunity as the employee he shot was drawing his own gun at the time. The appeals court stated "that by choosing to conduct the raid with surprise and with guns drawn," the police "created a dangerous situation that led" to the employee's death, particularly as he saw nothing indicating that the man entering his office with a gun drawn was a police officer. On these facts, a reasonable jury could have found that the manner in which the raid was conducted was unreasonable, but the officer was still entitled to qualified immunity as he violated no clearly established law, and reasonably believed himself to be in immediate danger at the time he fired. Cass v. City of Abilene, #14-11134, 2016 U.S. App. Lexis 3235 (5th Cir.).

Firearms Related: Second Amendment Issues

    The highest court in Massachusetts upheld a state statute prohibiting the private possession of stun guns against a constitutional Second Amendment challenge, on the basis that stun guns were not in common use at the time of the Second Amendment's enactment and therefore were not protected by it. The court also reasoned that stun guns were "dangerous per se at common law and unusual" because they were a modern invention, and that "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." The U.S. Supreme Court vacated this decision, stating that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that it had previously rejected the argument that "only those weapons useful in warfare are protected" by the Second Amendment. The case involved a woman with an abusive boyfriend who found that protective orders she obtained proved futile so she accepted a stun gun from a friend to protect herself and when she brandished it, the ex-boyfriend got scared and left her alone. She was then convicted of violating the state law that barred private possession of stun guns, Caetano v. Massachusetts, #14-10078,194 L. Ed. 2d 99, 2016 U.S. Lexis 1862.

Search and Seizure: Home/Business

     Two deputies, during a warrantless raid on a house, shot a homeless couple living in a shack in the backyard, including a man holding a BB gun. A federal appeals court upheld a determination that the entry into the shack constituted a search under the Fourth Amendment. The shack was in the curtilage adjacent to the home. The entry violated the Fourth Amendment as the deputies could not show consent, exigent circumstances, or a lawful protective sweep. The deputies entry into the shack also violated the knock and announce rule, but the law on that subject in these circumstances was not clearly established in 2010, so the deputies were entitled to qualified immunity on that claim, with an award of nominal damages on that claim overturned. Going forward, the court stated, officers must knock and announce their presence when they know or should reasonably know that an area within the curtilage of a home is a separate residence from the main house. While the shooting was not found to be excessive force, an award of damages was upheld under the provocation doctrine. When "an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force." The appeals court upheld an award of $4 million for the shooting and $1 in nominal damages for the unlawful search. Mendez v. County of Los Angeles, #13-56686, 2016 U.S. App. Lexis 3847 2016 WL 805719 (9th Cir.).

      35 armed federal and state agents carried out a search of a water bottling facility as part of an IRS and Small Business Administration investigation of the business and its alleged fraud in connection with an application for a disaster relief loan. A federal appeals court found that neither the number of agents nor their possession of weapons made the search unreasonable under the Fourth Amendment. The detention of employees during the execution of the search warrant was reasonable. The detention prevented employees from fleeing if incriminating evidence was found and ensured that they were available to assist in the search, such as by opening locked file cabinets without force. The mere presence of armed officers did not constitute excessive force. Mountain Pure v. Roberts, #15-1656, 2016 U.S. App. Lexis 3290 (8th Cir.).

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AELE Seminars

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

Click here for more information about all AELE Seminars


Resources

     Restraint Asphyxia: The Problem of Police-Related Cardiac Arrest, by SB Karch, Journal of Forensic and Legal Medicine (2016), doi: 10.1016/j.jflm.2016.04.008 (abstract).

     Terrorism: Using Human Sources in Counterterrorism Operations: Understanding the Motivations and Political Impact, by Simon De Block, FBI Law Enforcement Bulletin (April 2016).

     Use of Force: Lethal in Disguise. The Health Consequences of Crowd-Control Weapons, Physicians for Human Rights (2016).

  Reference:

Cross References
Assault and Battery: Handcuffs -- See also, Disability Discrimination
Firearms Related: Intentional Use -- See also, Search and Seizure: Home/Business (both cases)
First Amendment -- See also, False Arrest/Imprisonment: No Warrant
U.S. Supreme Court Cases -- See also, .Firearms Related: Second Amendment Issues

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