AELE Seminars

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

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

Digest Topics
Assault and Battery: Handcuffs
Assault and Battery: Physical
Electronic Control Weapons: Dart Mode
Failure to Disclose Evidence
Firearms Related: Intentional Use (2 cases)
Malicious Prosecution
Property
Search and Seizure: Home/Business
Search and Seizure: Search Warrant


Resources

Cross References


AELE Seminars

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: Handcuffs

     Two police officers were sent to a hotel in response to a phone tip that a man had come out of his room with a gun and threatened to shoot another resident's dog. The man claimed that he had been nowhere near the room where the incident had allegedly taken place, and tried to explain that to the officers who proceeded to arrest him. He claimed that he also told them that he had prior rotator cuff injuries and shoulder surgeries which precluded him from placing his hands behind his back, and that he repeatedly complained to them of his pain when he was handcuffed. In a lawsuit claiming excessive use of force, he stated that the officers ignored his complaints, aggravating his prior medical injuries. A federal appeals court upheld the rejection of qualified immunity for the officers. It held that if the facts were as the plaintiff alleged, the officers violated his clearly established rights. Courtright v. City of Battle Creek, #15-1722, 2016 U.S. App. Lexis 18502, 2016 Fed. App. 256P (6th Cir.).

Assault and Battery: Physical

     A man who allegedly ingested bath salts was engaged in erratic behavior, causing five police officers to attempt to take him into protective custody. While trying to restrain him, they placed him in a face-down position on the ground while two of them exerted significant force on his shoulders and neck. He died during the incident. The defendant officers were granted qualified immunity, except for claims against two officers who allegedly used excessive force after the decedent ceased resisting. A federal appeals court rejected an appeal, finding that disputed material facts as to whether the use of force continued for five minutes after resistance stopped, as the plaintiff claimed, or only 66 seconds, as the officers argued, precluded summary judgment on the basis of qualified immunity. It was, the court found, clearly established in September 2012 that exerting significant continued force on a person's back while he was in a face-down prone position after being subdued constituted excessive force. McCue v. City of Bangor, Maine, #15-2460, 2016 U.S. App. Lexis 17496 (1st Cir.).

Electronic Control Weapons: Dart Mode

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

    A man and his aunt went to a beach to perform a baptism ritual. While in the water, the man began acting erratically, flailing, flopping, and thrusting his arms and body while yelling about a demon. He was a big 290 pound man and his conduct drew attention on the crowded beach. An officer observed this and stopped his ATV. The officer and the man's aunt both asked the man to calm down and leave the water. When he did not comply, the officer entered the water, believing thata he had probable cause to arrest him for battery of the aunt. A struggle ensued, during which the office repeatedly struck the man in the face and he continued to physically resist. The officer brought the man to an area of shallow water and handcuffed one of his hands. The man continued to resist, so the officer placed him in a choke hold around the neck and dragged him out of the water. The officer got on top of him and three bystanders assisted him in placing the handcuffs on the man's other arm. The man was allegedly struggling to breathe with blood and other fluids spewing from his mouth. The man continued to resist after the officer shot pepper spray into his eyes and struck him in the face multiple times. A second officer arrived and the man, then face down, was warned to stop attempting to raise up or a Taser would be used on him. When he kept struggling, a Taser was fired in the dart mode, striking the man in the mid-back. Over a two minute period, the Taser was activated five times for 5, 3, 5, 4, and 5 seconds. The man was then still and appeared not to be breathing. The officers took off the handcuffs and turned him on his back to perform CPR. Rescue personnel arrived and took over and he died two days later.

     State agencies and the first officer reached settlements with the plaintiff on excessive force claims. The second officer, who fired the Taser, was denied qualified immunity on an excessive force claim. Upholding this result, a federal appeals court noted that the decedent was handcuffed when the Taser was used, and that at least two of the five activations allegedly occurred after he had ceased resisting. If true, this violated clearly established law, as the decedent was then fully secured, not a flight risk, and not a danger to the safety of the officers or others. Wate v. Kubler, #15-15611, 2016 U.S. App. Lexis 18365, 26 Fla. L. Weekly Fed. C 873 (11th Cir.).

Failure to Disclose Evidence

     An undercover police officer was found liable for $1 in nominal damages and $20,000 in punitive damages for violating the plaintiff's right to a fair trial on criminal charges by fabricating evidence. A federal appeals court upheld the rejection of the officer's motion for judgment as a matter of law. If, as the plaintiff argued, the officer had furnished false information to the prosecutor concerning his personal observations of the plaintiff, leading to the plaintiff's arrest, that could be the basis for a federal civil rights claim. Garnett v. Undercover Officer C0039, #15-1489, 2016 U.S. App. Lexis 17696 (2nd Cir.).

Firearms Related: Intentional Use

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

     A police officer was not entitled to qualified immunity on excessive force claims when he allegedly shot and killed an unarmed man during an attempted investigative stop. The decedent's suspected offense was a domestic dispute which had ended before the police became involved and the plaintiff contending that the decedent had not posed an immediate threat to the officer or others and was merely walking away at the time of the shooting. A police dispatcher had expressly told the officer that the suspect was not known to carry weapons. It was clearly established that seizing an unarmed non-dangerous suspect by shooting him dead violated the Fourth Amendment. A. K. H. v. City of Tustin, #14-55184, 2016 U.S. App. Lexis 16961 (9th Cir.).

     An officer went to an intersection after being told of a naked man standing in the street. The man ran toward the officer, yelling, naked, and unarmed, after being told to "come here." The officer fired a Taser in the dart mode into his chest, but he kept coming. The man, high on PCP, attacked the officer, slamming him into several cars, and attempted several times to remove the officer's handgun while striking him in the head. During the struggle, the officer shot and killed the man. A federal appeals court upheld summary judgment for the officer on excessive force claims. Regardless of whether, as the plaintiff alleged, the officer unnecessarily started a one-on-one confrontation the resulted in the later fatal altercation, the man's violent attack on the officer was a "superseding cause" that severed the causal link between the officer's first actions and his later justified use of deadly force in self-defense. The court rejected arguments that the officer should have retreated and attempted to wait for backup. The plaintiff also suggested that the officer acted unreasonably in firing the Taser at the man when he was allegedly only walking towards him rather than running as the officer claimed. The man then removed the Taser prongs and stared at the officer long enough for him to place two phone calls. "No reasonable juror could conclude" that the man's subsequent physical attack was an "involuntary or foreseeable defensive response to the Taser strike." Johnson v. City of Philadelphia, #15-2346, 2016 U.S. App. Lexis 17138 (3rd Cir.).

Malicious Prosecution

     A man read a newspaper article stating that there was a warrant for his arrest for a store theft based on a store security employee's identification of him. He claimed to have never been in that store. When he called the store, a security employee refused to review the surveillance videotape. He then called a state trooper who allegedly told him that a court would have to "figure it out." He was then arrested and jailed because he could not afford bail. He missed the birth of his child and lost his job. After two months, he pled no contest to the charges, fearing the loss of his home and vehicle and wishing to be released. He sued the state trooper as well as the store and its security employee for malicious prosecution, false arrest, and false imprisonment. The trial court did not err in dismissing these claims, which were barred by his conviction until and unless it was reversed, expunged, or invalidated. During his two months of incarceration, a police detective filed unrelated charges against him which were subsequently dropped, with that detective admitting that he was innocent of those charges. Claims against that detective were rejected, as the plaintiff was already in custody on the store theft charges, and therefore was never "seized" on the additional charges. Curry v. Yachera, #15-1692, 835 F.3d 373 (3rd Cir. 2016).

Property

     Police arrested a man for possession of a controlled substance while he was driving another person's car. They also then impounded the vehicle under a municipal law allowing the seizure of vehicles if there was probable cause to believe it was used to carry drugs or used in an illegal drug transaction. The car owner challenged the impoundment in city administrative hearings. The hearing found that probable cause existed and then found the car owner guilty of violating the city law and ordered her to pay the required penalty of $2,000 plus $180 in storage and towing fees. A federal appeals court upheld the facial validity of the ordinance, rejecting arguments that it permitted unlawful warrantless seizures of vehicles in all circumstances and improperly allowed a non-judicial officer to determine whether probable cause existed for the vehicle to remain seized. Under the city ordinance, the police officer seizing the vehicle without a warrant must have probable cause to believe it contained drugs or was used in a drug deal. This did not violate the Fourth Amendment. Bell v. City of Chicago, #15-2833, 835 F.3d 736 (7th Cir. 2016).

Search and Seizure: Home/Business

     There was an injunction prohibiting a man from possessing a firearm. When two deputies were escorting his ex-girlfriend into his home to remove her personal belongings, they allegedly saw a firearm in plain view, resulting in his arrest. He sued for unlawful search and seizure, but a federal appeals court held that the deputies were entitled to qualified immunity, as it was not clearly established that their entry into the residence's sunroom under these circumstances of the case would violate his rights. They were also entitled to qualified immunity for alleged unlawful entry into the home from the sunroom when the plaintiff consented to that entry. The seizure of the firearm was lawful under the plain view doctrine. This gave them at least arguable probable cause for the arrest. Fish v. Brown, #15-12348, 2016 U.S. App. Lexis 17778, 26 Fla. L. Weekly Fed. C 840 (11th Cir.).

Search and Seizure: Search Warrant

     A man claimed that FBI agents and a police detective violated his Fourth Amendment rights by the nighttime execution on his home of a daytime only search warrant. The defendants were entitled to qualified immunity on that claim when it was not clearly established in Maryland that this would violate his rights. The appeals court reversed, however, the dismissal of the claim that the defendants made-an unjustified no-knock entry. Jones v. Kirchner, #14-5257, 2016 U.S. App. Lexis 15759 (D.C. Cir.).

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AELE Seminars

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

     Criminal Investigation: No-Body Homicide Cases: A Practical Approach, by Michael L. Yoder, FBI Law Enforcement Bulletin (November 2016).

     Juvenile Offenders: Restorative Justice and Youthful Offenders, by David Newton, FBI Law Enforcement Bulletin (October 2016).

     Statistics: Criminal Victimization, 2015, by Jennifer L. Truman and Rachel E. Morgan, Bureau of Justice Statistics (October 20, 2016 NCJ 250180).

  Reference:

Cross References
Electronic Control Weapons: Dart Mode -- See also, Firearms Related: Intentional Use (2nd case)
False Arrest/Imprisonment: No Warrant -- See also, Search and Seizure: Home/Business
Search and Seizure: Home/Business -- See also, Search and Seizure: Search Warrant
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