AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - 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
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2017 LR July
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CONTENTS
Assault and Battery: Chemical
Assault and Battery: Physical
Dogs (2 cases)
Failure to Disclose Evidence/Fabrication of Evidence
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (3 cases)
First Amendment
AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - 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
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
- Some of the case digests do not have a link to the full opinion.
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- Access to cases linked to www.findlaw.com may require registration, which is free.
Assault and Battery: Chemical
An arrestee claimed that a police officer used excessive force by choking him and using pepper spray against him in the course of an arrest for taking eight pairs of shorts from a store. Upholding a denial of qualified immunity to the officer on an excessive force claim, a federal appeals court ruled that a jury could find that excessive force was used in the deployment of pepper spray or use of choking since the force was on a non-resisting, non-fleeing individual suspected of a completed, non-violent misdemeanor, While some use of force was reasonable here, it was not reasonable to immediately use significant force. The right not to be pepper sprayed or choked under these circumstances was clearly established. Tatum v. Robinson, #16-1908, 2017 U.S. App. Lexis 9342 (8th Cir.).
Assault and Battery: Physical
The plaintiff was stopped and questioned while he was at a car wash and he did not commit any crimes. Furthermore, he was not resisting arrest, and was not acting aggressively towards an officer or threatening an officer’s safety. Under these circumstances, the use of physical force against the plaintiff by a deputy on the scene and by an off-duty officer who intervened in the situation did not entitle the defendants to qualified immunity on excessive force claims. The plaintiff's right to be free from such excessive force was clearly established at the time. Perry v. Wolfe, #16-3229, 2017 U.S. App. Lexis 9882 (8th Cir.).
Dogs
Police officers responding to a burglary call found an office entry door ajar and the office dark. After a verbal warning that a police dog would be released, the dog entered the office and bit the upper lip of the woman in the office before an officer retrieved the dog. The plaintiff had fallen asleep in her office and had accidentally triggered the alarm. A federal appeals court, ruling en banc, held that the city was not liable in a lawsuit alleging that its policy and practice of training police service dogs to “bite and hold” violated the arrestee’s Fourth Amendment rights. The force used in these circumstances was not excessive and did not violate the Fourth Amendment. From the perspective of a reasonable police officer on the scene, this level and type of force inflicted was moderate. The city had a strong interest in using the force, and the degree of force used was commensurate with the city’s interest in the use of that force. Because the officers’ actions were constitutional, there could be no municipal liability. Lowry v. City of San Diego, #13-56141, 2017 U.S. App. Lexis 10016 (9th Cir. en banc).
A man filed a lawsuit against a police canine after the dog inflicted serious damage by refusing to release his bite, as well as against the officers, the county, and the police chief. The dog bit him after he allegedly broke into the residence of his ex-girlfriend and ran off with a television set. The officers were entitled to qualified immunity as no binding precedent clearly established that their actions in allowing the dog to apprehend the plaintiff violated his Fourth Amendment rights. Georgia state law did not allow negligence actions directly against dogs. The county and police chief were entitled to sovereign immunity on state law claims, and the officers were entitled to official immunity as they did not act with malice. Jones v. Fransen, #16-10715, 2017 U.S. App. Lexis 8816 (11th Cir.).
Failure to Disclose Evidence/Fabrication of Evidence
****Editor's Case Alert****
False Arrest/Imprisonment: Warrant
The two plaintiffs were arrested for an accusation of fraud that was mistakenly reported and almost immediately retracted. One of them was also briefly incarcerated. They sued a police officer and prosecutor who, at different stages of the criminal case, allegedly learned that no crime had taken place and yet failed to take any steps to withdraw an arrest warrant. Because there was no established duty to act under these circumstances, the officer was entitled to qualified immunity. Further, under Virginia state law, only the prosecutor, rather than the officer, could move to dismiss an issued arrest warrant. The prosecutor was entitled to absolute immunity, since the decision whether or not to withdraw an arrest warrant was intimately associated with the judicial phase of the criminal process. State law claims, however, were dismissed in federal court without prejudice to the ability of the plaintiffs to reassert them in state court. Safar v. Tingle, #16-1420, 2017 U.S. App. Lexis 10114 (4th Cir.).
Firearms Related: Intentional Use
****Editor's Case Alert****
The U.S. Supreme Court has unanimously overturned a 9th Circuit federal appeals court decision that imposed liability on an officer’s use of deadly force even though the force was deemed justified at the time, rejecting a “provocation” doctrine that based that liability on a finding of illegal entry under the theory that the improper entry created the conditions that necessitated the use of force. A $4 million award of damages to the two individual plaintiffs was vacated. The Ninth Circuit's provocation rule, which held that an officer’s otherwise reasonable and lawful defensive use of force was unreasonable as a matter of law if the officer intentionally or recklessly provoked a violent response and the provocation was an independent constitutional violation, conflated excessive force claims with other Fourth Amendment claims and improperly permitted excessive force claims that could not succeed on their own terms. County of Los Angeles v. Mendez, #16-369, 2017 U.S. Lexis 3396, 2017 WL 2322832 (May 30, 2017).
Because it was not clearly established on the date of the fatal shooting of a disturbed individual inside his home that using deadly force on an emotionally disturbed individual who grabbed a knife from his pocket despite orders to place his hands on his head would constitute excessive force under the Fourth Amendment, the defendants were entitled to qualified immunity. That said, the appeals court did rule that a reasonable jury could find, under similar circumstances in the future, that the force used violated the Fourth Amendment. S. B. v. County of San Diego, #15-56848, 2017 U.S. App. Lexis 8452 (9th Cir.).
A deputy knew that a man was dressed in a military uniform, carrying a rifle, and making rude gestures to passing vehicles as he walked along a roadway, and when the officer screamed a command to him to drop the gun, the man spun around, raised his rifle, and pointed it at the deputy so that the deputy reasonably believed that he was at risk of serious harm when he shot and killed the man. Under these circumstances, the use of deadly force was objectively reasonable. Although new information came to light after the shooting that the rifle was actually a pellet gun, a reasonable officer in the deputy's position could believe that man was pointing a gun and that there was a serious risk of harm. Dooley v. Tharp, #15-3368, 856 F.3d 1177 (8th Cir. 2017).
First Amendment
A street performer and her friend were arrested on the Las Vegas strip and charged with conducting business without a license because they were dressed in “sexy cop” outfits and posed for photos with the officers in exchange for a tip. It was the plaintiff’s friend who asked the officers for the tip. After the charges were dropped, the plaintiff sued the officers, arguing that the arrest violated her First Amendment rights. Overturning summary judgment for the officers, a federal appeals court found that the record indicated the officers had no evidence before them when they decided to arrest the plaintiff that suggested that the "sexy cops" costumes had any purpose that could have fallen outside the protection of the First Amendment. To infer from the plaintiff and her friend's shared costumes and joint performance alone an agreement to engage in a transaction subject to regulation impermissibly burdens the right to engage in purely expressive activity and association. The court held that something more than that constitutionally protected activity was required to justify the plaintiff's arrest. Viewing the plaintiff's activities separately from her friend's, the court held that summary judgment for the officers was improper because her actions were entirely protected speech. Santopietro v. Howell, #14-16324, 2017 U.S. App. Lexis 9028 (9th Cir.).
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