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



 Search the Case Law Digest

 


A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2016 LR August
Click here to view information on the editor of this publication.

Access the multi-year Civil Liability Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader must be used to view content

CONTENTS

Digest Topics
Assault and Battery: Physical
Criminal Conduct
False Arrest/Imprisonment: No Warrant (2 cases)
Firearms Related: Intentional Use (2 cases)

Firearms Related: Second Amendment Issues
First Amendment Related
Property
Search and Seizure: Home/Business
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

     Two officers were not entitled to qualified immunity in a female motorist's excessive force lawsuit. They violated clearly established law prohibiting the use of force against a misdemeanant who did not pose an immediate threat to herself or others if her version of the incident was true. She claimed that after she was stopped for driving with a suspended license, they started pounding on her car with batons, demanding that she exit the vehicle. When she asked for assurances that she would not be hurt, they allegedly smashed the car's windows, pulled her through a broken window by her arms and hair, and threw her on the glass-littered pavement. Davis v. Clifford, #15-139, 2016 U.S. App. Lexis 10648 (10th Cir.).

Criminal Conduct

     The defendant police officer and a number of co-workers routed vehicles damaged in accidents to a repair shop in exchange for kickbacks. He was criminally charged with obtaining money from the body shop owners under color of official right in violation of the Hobbs Act, 18 U.S.C. 371 and conspiring to do so. The U.S. Supreme Court rejected the argument that because the Hobbs Act prohibits the obtaining of property "from another" that a Hobbs Act conspiracy required proof of agreeing to obtain property from someone outside the conspiracy. The defendant could be convicted of conspiring to violate the Act based on proof that he reached an agreement with the owners of the property in question (the shop owners) to obtain some of their property (money) under color of official right. The Court stated that its decision did not transform every bribe of a public official into a conspiracy to commit extortion. Ocasio v. United States, #14-361, 136 S. Ct. 1423, 194 L. Ed. 2d 520, 2016 U.S. Lexis 2932, 84 U.S.L.W. 4245.

False Arrest/Imprisonment: No Warrant

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

     Officers smelled the odor of marijuana coming from a woman's home and arrested her, charging her with two counts of child endangerment. She had refused to allow them to search inside her residence and she claimed that they violated her Fourth Amendment rights by entering her carport and approaching the back door of her home. The trial court in the criminal case agreed and granted the plaintiff's motion to suppress the evidence, after which the charges were dropped. She then sued for false arrest without probable cause. A federal appeals court upheld summary judgment for the defendant officers. Joining at least four other federal appeals circuits, the Ninth Circuit took the position that the exclusionary rule does not apply in Sec. 1983 federal civil rights lawsuits, holding that police officers may rely on unlawfully obtained evidence to defend themselves against a constitutional tort action for false arrest. It rejected the plaintiff's position that the officer's unlawful entry into the curtilage of her home necessarily tainted the following arrest. The plaintiff alleged no reason to doubt that the officers actually smelled what they believed to be marijuana, that children were present in the home, and that the plaintiff did not have medical marijuana privileges, which provided the officers with probable cause to arrest. Lingo v. City of Salem, #14-35344, 2016 U.S. App. Lexis 11708 (9th Cir.).

     A man was a victim of a home invasion during which a burglar punched him and locked him in a closet, after which a second burglar entered. Police later arrested a suspect who was later acquitted and sued for false arrest. A federal appeals court upheld summary judgment for the arresting officers, finding that there was probable cause for the arrest at the time it occurred. The victim identified the plaintiff as one of the burglars in a photo array, a neighbor identified the plaintiff as someone seen loitering outside the home at the time of the burglary, and the plaintiff's own son told police that his father had recently committed some burglaries. The plaintiff provided no evidence for his claim that the photo array was conducted improperly and a search of his home had been authorized by a warrant. Jackson v. City of Peoria, #14-3701, 2016 U.S. App. Lexis 10131 (7th Cir.).

Firearms Related: Intentional Use

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

     An officer who shot a driver in the back during a traffic stop was entitled to qualified immunity. Given the plaintiff's intoxication, his resistance to the officer, his disregard for the officer's orders, the threat he and the other three men in his truck posed while unrestrained, and his action in reaching for his waistband (which was obscured from the officer's view), it was not unreasonable for the officer to perceive the plaintiff as threatening his safety and to use deadly force to protect himself. The officer was granted qualified immunity and municipal liability claims failed as a matter of law since the plaintiff failed to show that his rights were violated. Salazar-Limon v. City of Houston, #15-20237, 2016 U.S. App. Lexis 10854 (5th Cir.).

     A Border Patrol agent did not use excessive force in shooting and killing a man who violently and aggressively resisted him, striking him in the temple hard enough to concuss him, causing him to fear losing consciousness. While the decedent had run 15 feet away at the time he was shot, the defendant could still then reasonably believe that he posed a threat of serious harm to himself or others if his arrest was delayed. Mendez, Sr. v. Poitevent, #15-50790, 2016 U.S. App. Lexis 9169 (5th Cir.).

Firearms Related: Second Amendment Issues

     Three persons seeking to open a gun shop in a California county challenged a county ordinance requiring that such a business not be within 500 feet of a residentially zoned district. A federal appeals court held that the right to purchase and sell firearms is part and parcel of the historically recognized fundamental right to keep and bear arms protected by the Second Amendment. The ordinance's potential interference with that right was therefore a proper basis for a Second Amendment challenge, so the trial court's dismissal for failure to state a claim was unwarranted. Burdens on Second Amendment rights are subject to heightened scrutiny, and the county failed to carry its burden because it never justified that there was a reasonable fit between the challenged regulation and its asserted objective, In particular, the county failed to support its claim that gun stores acted as a "magnet for crime." Teixeira v. County of Alameda, #13-17132, 2016 U.S. App. Lexis 8925 (9th Cir.).

First Amendment Related

    An evangelical Christian who claimed that a police commander threatened to confiscate his religious banners which he attempted to bring into an Irish Fair could pursue claims against her in her individual capacity for violating his First Amendment rights, but could not pursue similar claims against the city, its police chief, or the commander in her official capacity, as nothing in the record showed that the permits for the festival or the city's permitting regulations would subject him to prosecution for engaging in his desired religious expression of displaying his banners and engaging in preaching at the fair. Nothing showed that the commander was a policymaker for the city. Miller v. City of St. Paul, #15-2885, 2016 U.S. App. Lexis 9362 (8th Cir.).

Property

     Two arrestees filed suit claiming that a county's alleged practice of collecting all of a detained arrestee's cash upon booking, and related practices, violated their Fourteenth Amendment procedural due process rights. Once the cash was collected, the county automatically deducted a $25 booking fee, and later returned the remaining funds not in cash but in the form of a prepaid debit card. In accord with a prior decision by the Sixth Circuit, the Eighth Circuit concluded that the private property interest at stake with such practices is relatively modest that that the county's interest in collecting the booking fee was substantial. The plaintiffs failed to show that the county's booking fee policy was unconstitutional in providing only a post-deprivation remedy instead of a pre-deprivation remedy. Mickelson v. County of Ramsey, #14-3164, 2016 U.S. App. Lexis 8137 (8th Cir.).

Search and Seizure: Home/Business

     Over 20 officers armed with assault rifles responded to a report of two armed black males in a parking lot. When they arrived there, no one fitting the description was present, only a large Samoan family celebrating a little girl's birthday. The family was detained and searched for weapons, and their apartment was then searched without a warrant or consent. The officers were not entitled to qualified immunity for the seizure of the plaintiffs or the warrantless search of the apartment. Sialoi v. City of San Diego, #14-55387, 2016 U.S. App. Lexis 9489 (10th Cir.).

Return to the Contents menu.

Report non-working links here


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

     Assaults on Officers: Understanding Firearms Assaults against Law Enforcement Officers in the United States, by Joseph B. Kuhns, Diana Dolliver, Emily Bent, and Edward R. Maguire, COPS (March 14, 2016).

     Statistics: Background Checks for Firearm Transfers, 20132014 - Statistical Tables, by Trent D. Buskirk, Joseph M. Durso, Ronald J. Frandsen, Jennifer C. Karberg, and Allina D. Lee, Bureau of Justice Statistics (June 30, 2016 NCJ 249849).

     Statistics: Co-Offending Among Adolescents in Violent Victimizations, 200413, by Rachel E. Morgan, and Barbara A. Oudekerk, Bureau of Justice Statistics (July 7, 2016 NCJ 249756).

  Reference:

Cross References
Search and Seizure: Persons -- See also, Search and Seizure: Home/Business
U.S. Supreme Court Cases -- See also, Criminal Conduct

Report non-working links here

Return to the Contents  menu.

Return to the  monthly publications menu

Access the multiyear Civil Liability Law  Case Digest

List of  links to court websites

Report non-working links  here.

© Copyright 2016 by AELE, Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.

Library of Civil Liability Case Summaries

 Search the Case Law Digest