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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
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR March
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CONTENTS
Assault and Battery: Physical
Defenses: Qualified Immunity
Domestic Violence and Child Abuse
Federal Tort Claims Act
Firearms Related: Intentional Use (3 cases)
Firearms Related: Second Amendment Issues
First Amendment
Search and Seizure: Home/Business
AELE Seminars
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
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 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.
- Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
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Assault and Battery: Physical
Two police officers arrested an obese man at his residence while executing a no-knock warrant for cocaine. In the course of the arrest, the officers allegedly threw him to the ground, twice activated a Taser in the dart mode, choked him, punched and kicked him in the face, pushed him into a face-down position, pressed his face into the ground, and pulled his hands behind his back to handcuff him. He had a heart attack during the arrest and died. A federal appeals court held that there were genuine issues of material fact as to whether the decedent was actively resisting arrest and whether the force used was excessive and unreasonable, so the officers were not entitled to qualified immunity. If the decedent was not actively resisting arrest when he was thrown to the ground and the Taser was used, the force used would have been excessive. The court held that a jury could conclude that no reasonable officer on the scene would have thought that the decedent was resisting arrest. Darden v. City of Fort Worth, #16-11244, 866 F.3d 698 (5th Cir. 2017). The appeals court subsequently denied the petition for panel rehearing and denied the petition for rehearing en banc. The court withdrew the previous opinion and issued a new one at Darden v. City of Fort Worth, Texas, #16-11244, 2018 U.S. App. Lexis 1796 (5th Cir.). The court stated that the plaintiff “has adequately alleged facts that make out violations of a clearly established constitutional right. Therefore, we vacate the district court's dismissal of the claims against the city and remand the case for further consideration of municipal liability.”
Defenses: Qualified Immunity
****Editor's Case Alert****
Police raided a loud late-night party in a vacant house after hearing that illegal activities were going on there. The house was in disarray, with a smell of marijuana and liquor on display. There was a “makeshift strip club” in the living room, and several men with a naked woman in a bedroom. Those present told inconsistent stories, with two identifying “Peaches” as the tenant and saying that she had given permission for the party. When the officers spoke by phone to Peaches, she eventually admitted that she did not have permission to use the house. The owner of the premises indicated that he had not given anyone permission to be there. The officers arrested those present for unlawful entry. Several sued for false arrest. A jury awarded a total of $680,000 in damages to multiple arrestees. After an award of attorneys’ fees, the total awarded added up to nearly $1 million.
The U.S. Supreme Court disagreed with this award, and held that the officers had probable cause to arrest the partygoers. Considering the totality of the circumstances, the officers made an “entirely reasonable inference” that the partygoers knew they did not have permission to be in the house. The condition of the house and the conduct of the partygoers allowed the officers to make “common-sense conclusions” about human behavior and infer that the partygoers, who scattered and hid, knew the party was not authorized. Their implausible answers gave the officers ample reason to believe that they were lying. The officers were entitled to qualified immunity even if they lacked actual probable cause because a reasonable officer could have interpreted the law as permitting the arrests. District of Columbia v. Wesby, #15-1485, 199 L. Ed. 2d 453, 2018 U.S. Lexis 760.
Domestic Violence and Child Abuse
Parents claimed that social workers violated their constitutional rights to family unity and companionship, along with their children’s’ rights, by removing their three small children from their home without a warrant or court order. The investigation into possible criminal child abuse began after the parents attempted at a store to have printed nude photos of their children. A federal appeals court overturned the trial court’s grant of summary judgment to the social workers based on qualified immunity, ruling that they did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation when they removed the children from their home without a judicial order. Demaree v. Pederson, #14-16207, 2018 U.S. Lexis 1625 (9th Cir.).
Federal Tort Claims Act
Fire struck a woman’s home, killing her three-year-old son. An ATF forensic chemist wrote a draft report stating that no accelerants were present where fire investigators thought the fire had begun. The woman was prosecuted for starting the fire and then alleged that the investigators communicated their disappointment to the ATF chemist, who agreed to fabricate findings. The official report confirmed the presence of accelerants in the areas identified by the investigators and said that the heavy petroleum distillates were highly suspicious. Only the final official version of the report was given to state prosecutors, with the existence of the draft report not revealed.
Convicted of felony murder based on that report, the woman was sentenced to 60 years’ imprisonment. After the draft report was revealed, a state appeals court reversed the conviction, based on the “Brady” violation of failing to disclose exculpatory evidence. Exonerated, the woman sued under the Federal Torts Claims Act (FTCA), claiming malicious prosecution and intentional infliction of emotional distress, and under 42 U.S.C. 1983. The trial court concluded that the intentional-tort exception to the FTCA’s general waiver of immunity applied, that the exception to that exception for law-enforcement officers did not apply, and granted the federal government summary judgment. A federal appeals court subsequently concluded that the record was not developed fully enough to support that result, that summary judgment on the issue of immunity was premature, and ordered further proceedings. Bunch v. United States, #16-3775, 2018 U.S. Lexis 2283 (7th Cir.).
Firearms Related: Intentional Use
****Editor's Case Alert****
A 20-year-old man seen riding his bicycle on the wrong side of the road was shot four times during an encounter with a deputy sheriff and was permanently paralyzed. Ordered to dismount his bike, the man was shot when he turned away after doing so. In an excessive force lawsuit, a jury awarded him damages totaling $23,148,100. Overturning this award, a federal appeals court found that the deputy was denied the opportunity to have his qualified immunity defense determined by the court because a jury instruction effectively delegated resolution of the issue to the jury, presumably as to both facts and law. The instruction improperly combined the excessive force inquiry with the qualified immunity issue, requiring a new trial. The defendant sheriff was properly granted summary judgment on a municipal liability claim, as the single incident did not establish a custom of tolerating excessive force. Stephens v. Bradshaw, #15-10396, 879 F.3d 1157 (11th Cir. 2018).
Two officers were properly granted qualified immunity on excessive forces claims in a lawsuit over having shot and killed a man while executing a search warrant on a residence while looking for methamphetamine. The evidence contradicted the plaintiff’s claim that the decedent attempted to surrender and retreat. Instead, evidence showed that he refused to obey the commands to show his hands, shifted an object between his hands, and quickly approached them, drawing the object up toward the face of the lead officer. Under these circumstances, it was not unreasonable for them to believe that he posed a threat of serious physical harm and to respond with deadly force. Their actions were objectively reasonable. A third officer was properly granted qualified immunity because his bullet did not strike the decedent, so his claim was analyzed under the Fourteenth Amendment’s due process clause rather than the Fourth Amendment. A reasonable officer in his position, the court found, would have probable cause to believe that the lives of his fellow officers were in danger. Hammett v. Paulding County, Georgia, #16-14764, 875 F.3d 1036 (11th Cir. 2017).
Deputies who were investigating a domestic disturbance at a man’s home encountered him outside the residence, armed with a handgun, with his two daughters nearby on the porch. They shot and killed him. A federal appeals court upheld the denial of summary judgment to the deputies based on qualified immunity and state defenses. It held that a jury could conclude that the decedent never raised his gun, which was pointed at the ground, never threatened the deputies, and never received a warning command. Under these circumstances, the deputies were not in any immediate danger and were not entitled to shoot him. Accordingly, they were not entitled to qualified immunity. On the state law claims, the trial judge properly ruled that the plaintiffs' assault claim could proceed as a matter of law. The defendant deputies were not entitled to public official immunity under North Carolina law on the plaintiffs’ negligent infliction of emotional distress claim because they acted contrary to their duty to use deadly force only when reasonably necessary. Hensley v. Price, #16-4294, (4th Cir.).
Firearms Related: Second Amendment Issues
A federal appeals court reversed a trial court injunction against the enforcement of federal laws that generally bar federally licensed firearms dealers from directly selling a handgun to a person who is not a resident of the state in which the license holder is located. Without deciding the issue, the appeals court assumed, for purposes of its decision, that strict rather intermediate scrutiny is applicable to claims that a law infringes on Second Amendment rights to bear arms.
The court then ruled that the in-state sales restriction did not violate the Second Amendment. The restriction is narrowly tailored to assure that a license holder who actually makes a sale of a handgun to someone other than another licensee can reasonably be expected to know and comply with the laws of the state in which the sale occurs. The court also rejected equal protection arguments against the restriction. The in-state sales requirement does not discriminate against residents of any particular state. Instead, it imposes the same restrictions on sellers and purchasers of firearms in each state and the District of Columbia. Mance v. Sessions, #15-10311, 2018 U.S. App. Lexis 1279 (5th Cir.).
First Amendment
A federal appeals court rejected a First and Fourteenth Amendment challenge to Section 647(b) of the California Penal Code, which criminalizes the commercial exchange of sexual activity. Laws invalidating prostitution may be justified by rational basis review. The law is rationally related to several important governmental interests, including discouraging human trafficking and violence against women, discouraging illegal drug use, and preventing contagious and infectious diseases, any of which support a finding of no constitutional violation under the Due Process Clause of the Fourteenth Amendment. The court found that it does not violate the freedom of intimate or expressive association, rejecting an attempt to analogize prostitution to the private intimate sexual activity of sodomy found protected in Lawrence v. Texas, #02-102, 539 U.S. 558 (2003). The court also held that it does not violate the right to earn a living and does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore did not warrant protection. Erotic Service Provider Legal Education and Research Project v. Gascon, #16-15927, 2018 U.S. App. Lexis 1120 (9th Cir.).
Search and Seizure: Home/Business
The state of Ohio has a warrantless search provision in its Precious Metals Dealers Act (PMDA), allowing the state to “investigate the business” of licensees and non-licensees with “free access to the books and papers thereof and other sources of information with regard to the[ir] business[es].” Licensees must also maintain records, at the licensed premises in a state-approve form, open to inspection by the head of the local police department and, “upon demand,” show authorities any precious metal within their possession that is listed in these records. Their records must be available to local police “every business day.”
A jeweler and a coin dealer brought Fourth Amendment challenges to the warrantless search provisions. A federal appeals court held that the warrantless searches authorized are facially unconstitutional and not necessary to furthering the state’s interest in recovering stolen jewelry and coins; nor do they serve as adequate warrant substitutes because they are overly broad. The record keeping requirements, however, were upheld. Liberty Coins, LLC v. Goodman, #16-3735, 2018 U.S. App. Lexis 1370, 2018 Fed. App. 14P (6th Cir.).
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