AELE Seminars
Public Safety Discipline and Internal Investigations
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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 September
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CONTENTS
Domestic Violence
Electronic Control Weapons: Dart Mode
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (4 cases)
Firearms Related: Second Amendment Issues
First Amendment
Search and Seizure: Search Warrant
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.
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****Editor's Case Alert****
While a woman was dating a male county sheriff’s deputy, the relationship became “combative.” During one incident he threw her against a wall and choked her. In other incidents, he sent lewd and threatening text messages, statements that she had “fucked with the wrong person,” locked her out of her home, and punched a hole in her door. Responses from the sheriff’s office allegedly included statements that “we’re sick of getting these calls.” The deputy was eventually arrested, pled guilty and resigned, after which the woman sued. A federal appeals court upheld judgments for the resigned deputy, other officers, and the sheriff. The resigned deputy was not serving as a state actor in his interactions with the plaintiff. None of the defendants’ conduct was sufficiently outrageous to give rise to a viable claim as there was no evidence that they created or increased a danger to the plaintiff. Mere indifference or inaction in the face of private violence cannot support a substantive due process claim. Wilson-Trattner v. Campbell, #16-2509, 2017 U.S. App. Lexis 12356 (7th Cir.).
False Arrest/Imprisonment: Warrant
A seven-year-old boy with psychological problems told his mother that his school counselor sexually assaulted him. A social worker talked to the boy and contacted a police detective. The detective and social worker then interviewed 32 other students in contact with the counselor, none of whom disclosed inappropriate conduct. A medical exam of the boy revealed no evidence of abuse.
The detective obtained a warrant for the counselor’s arrest, but failed to interview employees who worked near the counselor’s office, although the sexual abuse allegedly occurred there, with the door ajar and others able to see inside. Charges were later dismissed. In the counselor’s federal civil rights lawsuit, the jury found that the detective lacked probable cause to secure an arrest warrant, that facts misrepresented in or omitted from his affidavit and warrant application were material, and that the misrepresentations or omissions were done intentionally, deliberately, or with reckless disregard for the truth. It awarded $589,000 in compensatory and $500,000 in punitive damages.
A federal appeals court affirmed, rejecting the detective’s arguments concerning failure to instruct the jury adequately about qualified immunity. A reasonable juror could find that the officer's conduct involved reckless or callous indifference to the counselor's federally protected rights, and the punitive damages award was not unconstitutionally excessive. Wesley v. Campbell, #16-5431, 2017 U.S. App. Lexis 13067, 2017 Fed. App. 157P (6th Cir.).
Firearms Related: Intentional Use
A mother filed a lawsuit claiming excessive use of force and wrongful death after her son was shot approximately ten times by police and killed. Reversing the dismissal of the excessive force claim by the trial court, a federal appeals court found that there were at least two genuine disputed issues of material fact. The first was whether or not the officers saw the decedent throw his gun away and therefore knew that he was now disarmed. The second whether he was turning around to the officers with his hands raised to surrender. Because there was insufficient evidence that the officers acted with malice or in bad faith, however, the appeals court upheld summary judgment for the defendants on the state law wrongful death claims. Wealot v. Brooks, #16-1192, 2017 U.S. App. Lexis 14335 (8th Cir.). An officer blocking a man’s path with his vehicle constituted a seizure. The plaintiff adequately alleged that he and his companion had not fled from the officer and had not resisted arrest. Accordingly, it was unreasonable for the officer to draw his gun and shoot twice, striking the companion in the arm. The officer was not entitled to qualified immunity since the law was sufficiently clear to inform a reasonable officer that it was unlawful to use deadly force against nonviolent, suspected misdemeanants who were not fleeing or resisting arrest, posed little or no threat to the officer or public, and whose only action was to stop walking when a police car blocked their path. Johnson v. City of Ferguson, #16-1697, 2017 U.S. App. Lexis 13368 (8th Cir.). |
A dispatch center received reports that a male motorist had assaulted another man, had been drinking, and was driving erratically. An officer identified the suspect’s car, followed the vehicle into a parking lot, stopping alongside it. The motorist fled and a high-speed pursuit in the pouring rain ensued, reaching speeds of over 100 miles per hour through residential areas.
The pursued car ran into a ditch in a national forest. The officer parked 63.6 feet away. The motorist exited his vehicle, looked towards the officer, then turned away and crouched towards the ground, appearing unarmed. As the officer slowly approached, his gun drawn, the motorist allegedly walked towards him with clenched fists, “wide eyes, coming directly ... towards me, ... refusing to listen to any of my direct commands.” The officer fired a shot. The suspect hunched over slightly but continued moving purposefully toward the officer, who fired again, and the motorist collapsed and died.
A federal appeals court upheld summary judgment of qualified immunity in favor of the officer, noting that the confrontation took less than 20 seconds. Courts must make an “allowance for the fact that police officers are often forced to make split-second judgments.” The court found that the officer had probable cause to believe that the deceased posed an immediate threat to the officer’s safety, the plaintiff was unable to point to a case holding that it was unconstitutional for an officer to shoot a criminal suspect under similar circumstances, and the officer did not violate any of the decedent’s clearly established rights. Mitchell v. Schlabach, #16-1522, 2017 U.S. App. Lexis 12977, 2017 Fed. App. 156P (6th Cir.).
The trial court properly denied officers motions for qualified immunity when the facts, as alleged by the decedent’s mother, if true violated clearly established rights. She asserted that the decedent, at the time he was punched and shot and killed, was complying with the officers’ demands. A reasonable jury could find that the officers acted with prohibited bad faith or malice. As to claims against the Board of Police Commissioners, because the trial court's individual liability determinations survived the appeal, the appeals court rejected the Board's argument that it was entitled to judgment as a matter of law because its officers did nothing wrong. Lancaster v. Board of Police Commissioners, #15-3769, 2017 U.S. App. Lexis 13688 (8th Cir.).
Firearms Related: Second Amendment Issues
****Editor's Case Alert****
D.C. residents filed a lawsuit challenging provisions of the District’s Code directing the police chief to issue regulations limiting licenses for the concealed carrying of handguns to those showing a “good reason” to fear injury to their person or property or any other proper reason for carrying a pistol. A federal appeals court ruled that the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions is at the “core” of the Second Amendment. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas such as D.C. or bans on carrying absent a special need for self-defense.
The court found that the District's good-reason law is essentially a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. Therefore, the court could strike down the law apart from any particular balancing test. The court remanded the case with instructions to enter permanent injunctions against enforcement of the good-reason law. Wrenn v. District of Columbia, #16-7025, 2017 U.S. App. Lexis 13348 (D.C. Cir.).
First Amendment
A Maine state statute prohibits any person from making noise that “can be heard within a building” when such noise is made intentionally, following an order from law enforcement to cease making it, and with the additional intent either to jeopardize the health of persons receiving health services within the building or to interfere with the safe and effective delivery of those services. A federal appeals court overturned a trial court ruling holding that the law facially violated First Amendment free speech rights. The trial court viewed the law as a content-based speech restriction which did not satisfy strict scrutiny. The appeals court rejected this analysis, holding that the noise provision was properly treated as a content-neutral time, place, or manner restriction that survived the plaintiff’s facial challenge under intermediate scrutiny. March v. Mills, #16-1771, 2017 U.S. App. Lexis 14580 (1st Cir.).
Search and Seizure: Search Warrant
A corporal in the Arkansas Game and Fish Commission sued challenging the search of his residence pursuant to a search warrant. A federal appeals court found that the officer who obtained the search warrant did not act entirely unreasonably in believing that his affidavit established sufficient indicia of probable cause for the search and seizure of the items listed in the warrant, including to seize a deer, based on both an anonymous tip and a recorded jailhouse call. Additionally, the items described in the warrant were relevant to the criminal offense under investigation, as they directly related to the existence, capture, and maintaining of an illegal pet deer. Kiesling v. Spurlock, #16-2197, 859 F.3d 529 (8th Cir. 2017).
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