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Assault and Battery:
Physical
Defendant police officers were not entitled to qualified immunity where
the plaintiff alleged that they violated his Fourth Amendment right to be
free from excessive force. In this case, he claimed that the officers
delivered repeated strikes, punches, and blows to the plaintiff while he
pled with them to stop hitting him because he was not resisting arrest or
doing anything wrong. Therefore, viewing the evidence in the light most
favorable to the plaintiff, a reasonable officer standing in the
defendants’ shoes would have understood that the amount of force used to
subdue plaintiff was excessive, as was their action in purposefully
dropping plaintiff face-first onto the sidewalk after he had been subdued
and handcuffed. Burnikel
v. Fong, #16-3930, 2018 U.S.
App. Lexis 8215 (8th Cir.).
Disability
Discrimination
A man who sometimes
lived with his long-time girlfriend and their children suffered a serious
mental health episode, told her that he was suicidal, took a handgun while
breaking into a friend’s home, and went to his cousin’s apartment. The
girlfriend contacted police, and an officer obtained a warrant for the
man’s arrest, going to the cousin’s apartment with other officers. The
other officers suggested getting state police crisis negotiators or asking
the girlfriend to communicate with the suspect.
The
first officer allegedly told the other officers that they were “a bunch of
f[---]ing pussies.” He knocked and identified himself as an officer. The suspect
immediately shot himself and died. The girlfriend sued, claiming that the
officer unconstitutionally seized the decedent and that his suicide was the
foreseeable result of a danger that the officer created, and a violation of
the Americans with Disabilities Act, 42 U.S.C. 12101-213 by failing to
modify the municipality’s policies and procedures to ensure that disabled
individuals would have their needs met during police interactions. A
federal appeals court upheld the dismissal of Fourth Amendment claims. All
the officer did was merely knock on the door and announce his presence,
which was not enough to violate the Fourth Amendment. Even if there had
been a seizure, it would have been pursuant to a valid warrant and not
unlawful. The officer’s actions did not “shock the conscience” or constitute a state created danger. The appeals
court remanded to allow the plaintiff to amend her ADA claim to allege facts showing that the municipality was
deliberately indifferent to the rights of disabled persons who were
arrested, Haberle
v. Troxell, #16-2074, 2018
U.S. App. Lexis 6926 (3d Cir.).
Electronic Control Weapons:
Stun Mode
Deputies were
entitled to qualified immunity for their use of force against a paranoid
schizophrenic who had not taken his antipsychotic medication. They knew
that he could potentially be dangerous, he refused repeated requests to
go to the hospital or lie on his stomach, pretended to shoot himself in
the head, took a defensive position lying on the ground with his hands
and feet up, and yelled “just shoot me.” Under these circumstances, the
federal appeals court ruled, the deputies knew that there was a reasonable
expectation of aggression and a resistant subject. One deputy acted
reasonably in cuffing and shackling the plaintiff, and a second acted
reasonably in applying an arm lock that broke the plaintiff's arm and by
using nunchucks to obtain compliance. A third deputy acted reasonably by
activating his Taser five times in stun mode on the plaintiff after
giving warnings and attempting less intrusive methods. Further, even if
the third deputy did not act reasonably, he was entitled to qualified
immunity because the plaintiff could not show that a reasonable officer
would have been on notice that his conduct violated a clearly established
right. Cravener
v. Shuster, #17-1971, 2018 U.S. App. Lexis 7671
(8th Cir.).
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False Arrest/Imprisonment:
Unlawful Detention
Officers who responded to a shooting
incident involving the plaintiff’s father were entitled to qualified
immunity for detaining her for four hours without probable cause. While
this did violate her Fourth Amendment rights, her right not to be detained
in this manner under these circumstances was not so clearly established
that the officers could be liable. The Fifth Circuit, as well as other
circuits, had determined that officers acting under similar
circumstances—detaining a sole witness to an incident for questioning and
investigative preservation—did not violate any clearly established right.
The court reasoned that it followed that these officers similarly were not
bound by any such clearly established law. Lincoln
v. Colleyville, Texas,
#17-10201, 2018 U.S. App. Lexis 8629 (5th Cir.).
Failure to Disclose Evidence
A
man was convicted of the murder of a woman found beside a road with her
throat slashed. Prosecutors never informed him that a knife found near the
woman’s body might have implicated someone else in the crime. A state
appeals court later vacated the conviction based on Brady
violations in failing to reveal exculpatory evidence. The man was then retried
and acquitted. He sued a county prosecutor, a detective, and the
county for damages for the Brady violation less than a year
after his acquittal. The trial court dismissed the lawsuit on a statute of
limitations basis, finding that the claim accrued more than a year ago when
the conviction was overturned. A federal appeals court reinstated the
claim, holding that the claim accrued when he was acquitted on retrial, but
not when the initial conviction was overturned. Jordan
v. Blount County, #17-5988, 2018 U.S. App. Lexis 6405, 2018
Fed. App. 51P (6th Cir.).
Firearms Related:
Intentional Use
A
police officer shot a woman less than a minute after arriving with other
officers at the scene where it had been reported that a woman was acting
erratically and hacking a tree with a knife. When he fired, the woman was
holding a large kitchen knife, had taken steps towards her female roommate,
and had refused to drop the knife despite two orders to do so. Her injuries
were not life threatening and she matched the description of the suspect
given by the 911 caller. All of the officers later said that they
subjectively believed the woman was a threat to her roommate. She had a
history of mental illness. Her roommate said that she did not feel
endangered.
The U.S. Supreme Court ruled in favor of the officer, stating that even
assuming a Fourth Amendment violation occurred, which “is not at all
evident,” the officer was entitled to qualified immunity. Although the
officers were in no apparent danger, the shooting officer believed that the
plaintiff was a threat to her roommate. He had mere seconds to assess the
potential danger and was separated from the women by a chain-link fence.
This was “far from an obvious case” in which any competent officer would
have known that shooting her would violate the Fourth Amendment. None
of the decisions relied on by the court of appeals supported denying the
officer qualified immunity. Kisela
v. Hughes, #17-467, 2018 U.S. Lexis 2066.
Following remand from the United States Supreme Court [Hernandez
v. Mesa, #15-118, 137 S. Ct. 2003 (2017)], a federal appeals
court held that this shooting case was not a garden variety excessive force
case against a federal law enforcement officer. The plaintiffs alleged that
a law enforcement agent used deadly force without justification against a
fifteen-year-old boy, violating the Fourth and Fifth Amendments, when they
fatally shot him across the United States-Mexico border. At issue was
whether federal courts have the authority to craft an implied damages
action for alleged constitutional violations in this case under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, #301,
403 U.S. 388 (1971). The court noted that no federal statute authorizes a
damages action by a foreign citizen injured on foreign soil by a federal
law enforcement officer under these circumstances. The court held that the
transnational aspect of the facts presented a “new context” under Bivens,
and numerous "special factors" weighed against the federal
courts’ interference with the executive and legislative branches of the
federal government. Therefore, the court affirmed the trial court's
dismissal of the case. Hernandez v. Mesa, #12-50217, 2018
U.S. App. Lexis 7161 (5th Cir.).
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A police officer went to a woman’s home for a welfare check after
learning that she was home alone, suicidal, and had a gun. The officer
shot and killed her when she failed to respond to orders to drop the gun
and raised it to another officer’s shin level. Ruling that the officer
was entitled to qualified immunity on an excessive force claim, a
federal appeals court found that the use of deadly force in these
circumstances was objectively reasonable. It further held that the police
chief and the city could not be liable because the officer acted
reasonably. Rogers
v. King, #16-4209, 2018 U.S. App.
Lexis 7314 (8th Cir.).
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Firearms Related: Pointing
Weapons
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An arrestee
claimed that an officer used excessive force against him by pointing a
gun at his head during a felony arrest during a traffic stop after he had
already been searched, was calm and compliant, and was being watched over
by a second armed officer. A
federal appeals court ruled that pointing a loaded gun at the suspect’s
head in these circumstances constituted excessive force under the Fourth
Amendment, but that the officers here were entitled to qualified immunity
because the law was not clearly established at the time of the traffic
stop. Thompson
v. Copeland, #16-35301, 2018
U.S. App. Lexis 6191 (9th Cir.).
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Medical Care
A
female motorist arrested on suspicion of DWI claimed that the arresting
officer ignored her obvious need for medical attention. She
allegedly alerted the officer that she was “very sick and bleeding” heavily
and asked to be taken to a hospital. The officer refused and proceeded to administer
a field sobriety test. The motorist felt that she was “about to pass out”
and, again, asked to be taken to a hospital. The officer allegedly again
refused, arrested her, handcuffed her, and drove her to the police station,
where she claims she was subjected to additional testing, then taken to
jail, where she was held for 12 hours. Her blood sample was negative for
alcohol and controlled substances. The plaintiff then "inexplicably"
sent the court more than 100 pages of attachments, mostly police reports
and medical records, attempting to add the municipalities as defendants
The officer’s report contradicted
the motorist’s claims and recounted driving her to a hospital. Reports from
another hospital establish that, two days later, she was diagnosed with
“[a]cute blood loss anemia secondary to dysfunctional uterine bleeding.”
The trial court dismissed her lawsuit, finding her allegations “no longer
plausible.” A federal appeals court vacated, ruling that the trial court
erroneously concluded that she had pleaded herself out of court by
attaching the police report, which contained facts different from those in
the complaint. The plaintiff’s submissions fairly allege that the officer
knew about her need for medical attention and responded in an objectively
unreasonable manner. Otis
v. Demarasse, #16-1875, 2018 U.S. App. Lexis 8243 (7th
Cir.).
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AELE Seminars
Public
Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal
Issues
Jan. 14-17,
2019 - Orleans Hotel, Las Vegas
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Resources
Statistics: Indicators
of School Crime and Safety: 2017, by Lauren Musu-Gillette, Anlan
Zhang, Ke Wang, Jizhi Zhang, Jana Kemp, Melissa Diliberti, and Barbara
A. Oudekerk, Bureau of Justice Statistics (March 29, 2018 NCJ
251413).
Reference:
Cross References
Assault and Battery:
Physical -- See also, Electronic Control Weapons: Stun Mode
Defenses: Qualified
Immunity -- See also, Firearms Related: Intentional Use (1st
case)
Public Protection:
Disturbed/Suicidal People – See also, Disability Discrimination
Public Protection:
Injured/Ill Persons – See also, Medical Care
U.S. Supreme Court
Actions – See also, Firearms Related: Intentional Use (1st
case)
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