AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 9-12, 2017 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of the Use of Force
April 3-6, 2017 - 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 July
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CONTENTS

Digest Topics
Assault and Battery: Physical
Dogs
Electronic Control Weapons: Dart and Stun Mode Cases
False Arrest/Imprisonment: No Warrant (2 cases)
False Arrest/Imprisonment: Unlawful Detention
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use
First Amendment
Malicious Prosecution
Resources

Cross References


AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 9-12, 2017 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of the Use of Force
April 3-6, 2017 - Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

Assault and Battery: Physical

     False arrest claims were properly rejected where, when the officers first viewed some photographs, they were justified in concluding that they qualified as unlawful child pornography. The court also properly found that the force used by named officers during the arrest was reasonable under the circumstances, as they had to push him along because he lightly resisted. The force they used caused him no injury, but the trial court erred in finding as matter of law that named officers lacked a realistic opportunity to intervene in an alleged assault on the plaintiff by an unidentified officer. Figueroa v. Mazza, 14-4116, 2016 U.S. App. Lexis 10152 (2nd Cir.).

Dogs

     An arrestee claimed that an officer used excessive force during his arrest, specifically pulling him down three steps after he surrendered, placing his knee on his back, and allowing a police dog to continue to bite him. The officer claimed that he had released the dog only after the plaintiff failed to respond to commands to come out of hiding. He also contended that the dog could not hear the command to cease his attack because of the plaintiff's screaming. Upholding a denial of qualified immunity, a federal appeals court ruled that a jury could reasonably find, if the facts were as alleged by the plaintiff, that the force used was excessive. It was clearly established at the time of the incident that no more than minimal force should be used during the arrest of a non-resisting or passively resisting person. Becker v. Elfriech, #15-1363, 2016 U.S. App. Lexis 8703 (7th Cir.).

Electronic Control Weapons: Dart and Stun Mode Cases

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

     Officers responding to a call reporting a disturbance at the scene of a minor traffic accident found a vehicle with front end damage in a ditch and a man running in circles "imitating a boxer." He did not respond to their attempts to interact with them, but instead started to walk away. When he ignored orders to stop, a Taser was fired in the dart mode at him, but was ineffective in stopping him. The Taser was cycled two more times in the next forty seconds, which still did not stop him. More officers arrived. A second officer fired his Taser in the dart mode, causing the man to fall to the ground. He resisted efforts to handcuff him. The second Taser was then cycled two more times. He was subdued and handcuffed and was being taken to a police vehicle when he again resisted and broke free. When taken to the ground he kicked two officers, including one in the groin. He was placed in a hobble restraint and a Taser was applied to him in the stun mode. He was then hog-tied. He ceased breathing, did not have a pulse, and died. Contributing factors in the death were found to be Taser use, dilated/hypertrophic cardiomyopathy, obesity, and chronic drug use. The plaintiff failed to show that the officers violated the decedent's Fourth Amendment rights by using the Taser excessively. Additionally, it was not unreasonable to hog-tie him given his "on again, off again" resistance, his recurring violence, and the threat he posed when unrestrained. Pratt v. Harris County, TX, #15-20080, 2016 U.S. App. Lexis 8049 (5th Cir.).

False Arrest/Imprisonment: No Warrant

     A man claimed that officers violated his rights when they arrested him without a warrant three times for interfering with them during police interaction with others. The defendant officers were entitled to summary judgment under the independent intermediary doctrine because a grand jury found the arrests supported by probable cause. The plaintiff had the burden of affirmatively showing that the grand jury proceedings were tainted, and failed to do so. Buehler v. City of Austin/Austin PD, #15-50155, 2016 U.S. App. Lexis 9971 (5th Cir.).

     A sheriff's lieutenant arrested the new owners agents at his foreclosed home. A federal appeals court held that a jury could reasonably conclude on the record that the lieutenant was not a tenant at sufferance after the finalized foreclosure and that he, and not the plaintiffs, was the intruder at the property. The lieutenant lacked even arguable probable cause for the arrests. Carter v. Filbeck, #15-12529, 2016 U.S. App. Lexis 8010 (11th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     When a man reported to police that there was some problem with his cable television reception, he rwas trying to report that he thought a neighbor had wired in to his service to steal cable television, but the officers, believing that he was saying someone was "controlling his television took him for a mental health evaluation and after the evaluation, he was detained for six days as a possible threats to others. The plaintiff stated a viable claim that the officers lacked probable cause to initially detain him. While he did quote from an incident report prepared by the officers afterwards, his claim was based not on hearsay contained in the report, but on his statement that he had no mental illness and that the officers lacked probable cause to detain him based on the alleged facts of the incident. Claims against the mental health evaluator and her employee were properly dismissed as their screening report did provide a basis for further detention. . Goines v. Valley Cmty. Servs. Bd., #15-1589, 2016 U.S. App. Lexis 8512 (4th Cir.).

False Arrest/Imprisonment: Warrant

     "Exotic dancers" were arrested on charges ranging from prostitution to assault to witness intimidation or drug distribution. They claimed that their arrests violated the warrant clause of the U.S. Constitution because the sole evidence the court clerks received before issuing arrest warrants consisted only of the officers' conclusory statements that they had committed the offenses and the clerks lacked the power to issue arrest warrants to begin with. Affirming the dismissal of their false arrest lawsuit, a federal appeals court noted that they failed to allege that the officers arrested them without probable cause--a key allegation needed to show an unconstitutional arrest. Graves v. Mahoning County, #15-3175, 2016 U.S. App. Lexis 8697, 2016 Fed. App. 0113P (6th Cir.).

Firearms Related: Intentional Use

      Officers responding to a call about a suspected drug dealer armed with a shotgun loitering in an apartment complex came upon a man there holding a long gun. When they ordered him to drop it, one officer allegedly used deadly force without providing a warning or sufficient time to comply, and without observing him point the gun at the officers or make any move towards the trigger. If the facts were as alleged, it stated a viable claim for an excessive use of force in shooting and killing the man. Because it was not clearly established at the time that this would be excessive force, however, the officer was entitled to qualified immunity under federal law but state law claims could continue as it was not found that the force used was objectively reasonable as a matter of law. C. V. v. City of Anaheim, #14-55760, 2016 U.S. App. Lexis 9561 (9th Cir.).

First Amendment

     A city ordinance prohibited congregating or demonstrating within 15 feet of the entrance to a hospital or health care facility, with exceptions for public safety personnel or those assisting patients. The plaintiffs, who wished to provide sidewalk counseling outside a Planned Parenthood facility claimed that this violated their First Amendment rights. A federal appeals court held that the First Amendment claims could go forward. The city needed to show that it seriously considered substantially less restrictive alternatives that would achieve its legitimate, substantial, and content-neutral goals of protecting unobstructed patient access before it substantially burdened protected First Amendment speech. Bruni v. City of Pittsburgh, #15-1755, 2016 U.S. App. Lexis 10019 (3rd Cir.).

Malicious Prosecution

     Two persons lawfully repossessing cars were stopped for a traffic violation. The officers were aware of recent robberies in the area, and grew suspicious, so they called a victim to the scene, who identified the two as the men who had robbed him the night before. During questioning, one of the men, who suffered from a learning disability and had a low IQ, confessed to several robberies and implicated the other man. The other man pled guilty in exchange for probation. Further investigation revealed that both men were innocent. Neither man was imprisoned. They sued the officers for fabricating one man's confession, failing to disclose an alibi witness, and coercing the other man's confession. Summary judgment was granted to the defendants as there were insufficient facts to show that the defendants concealed evidence unknown to the plaintiffs or that their actions caused any loss of liberty. No reasonable jury could find that the interrogation in question shocked the conscience. Probable cause existed for the criminal charges, defeating claims for malicious prosecution. Cairel v. Alderden, #14-1711, 2016 U.S. App. Lexis 8354 (7th Cir.).

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AELE Seminars

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

Jail and Prisoner Legal Issues
Jan. 9-12, 2017 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of the Use of Force
April 3-6, 2017 - Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Human Trafficking: International Efforts by Police Leadership to Combat Human Trafficking by Michael Pittaro and Anthony Normore, FBI Law Enforcement Bulletin (June 2016).

     Use of Force: Graham v. Connor - Is Objective Reasonableness Good Enough? by John J. Knott, Police Chief Magazine (June 2016).

  Reference:

Cross References
Assault and Battery: Physical -- See also, Dogs
False Arrest/Imprisonment: No Warrant -- See also, Assault and Battery: Physical
Interrogation -- See also, Malicious Prosecution

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