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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR July
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CONTENTS
Assault and Battery: Batons
False Arrest/Imprisonment: No Warrant
Firearms Related: Accidental/Negligent Use
Firearms Related: Intentional Use (2 cases)
First Amendment
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Malicious Prosecution Public Protection: 911 Phone Systems Search and Seizure: Home/Business Search and Seizure: Search Warrant |
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
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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Assault and Battery: Batons
University police officers were entitled to qualified immunity for the use of force, including batons, against protesters involved in the Occupy Wall Street movement in 2011. The force used against four plaintiffs was not excessive and the officers were entitled to use the minimal force they employed to move a crowd in order to gain access to the tents erected in violation of university policy. The trial court also erred in denying summary judgment on supervisory liability claims to some defendants, who were not in the police chain of command, and had no supervisory authority over the officers who allegedly committed the violations. Felarca v. Birgeneau, #16-15293, 2018 U.S. App. Lexis 14335 (9th Cir.).
False Arrest/Imprisonment: No Warrant
Summary judgment was properly granted on the basis of qualified immunity for police officers in a lawsuit against them for false arrest and excessive force. The officers did have probable cause to arrest the plaintiff motorist after he ran a stop sign and for fleeing or attempting to elude a law enforcement officer by continuing to drive for three blocks or 14.4 seconds after seeing that the officer was behind him with his patrol car’s lights and siren on. Also, they used only reasonable force during the arrest. The finding of probable cause also barred state law claims for false arrest. Manners v. Cannella, #17-10088, 2018 U.S. App. Lexis 15007 (11th Cir.).
Firearms Related: Accidental/Negligent Use
A state gaming commission firearms instructor forgot to replace his real firearm with a “dummy” firearms before a firearms training exercise. During a preliminary safety briefing, he accidentally discharged his real firearm, killing a fellow instructor who was a gaming commission special agent. A federal appeals court granted qualified immunity to the firing instructor in a federal civil rights lawsuit. Under established U.S. Supreme Court precedent, a Fourth Amendment seizure does not occur whenever a government agent causes termination of a person’s freedom of movement but only when there is a governmental termination of freedom of movement through means applied intentionally. "There is no question about the fundamental interest in a person’s own life, but it does not follow that a negligent taking of life is a constitutional deprivation." The shooting of the other instructor, as tragic as it was, was not “willful[ly]” performed. Gorman v. State of Mississippi, #17-60515, 2018 U.S. App. Lexis 15338 (5th Cir.).
Firearms Related: Intentional Use
A federal appeals court held that, in viewing the record in the light most favorable to plaintiff, the officer’s use of deadly force against the plaintiff was objectively reasonable under the Fourth Amendment when the officer could have reasonably feared that the plaintiff had a gun and was turning to shoot him when the officer shot him following a traffic stop. The appeals court further concluded that the district court did not err by raising the issue of qualified immunity on its own (“sua sponte”) and by addressing it on summary judgment. Easley v. City of Riverside, #16-55941, 2018 U.S. App. Lexis 12925 (9th Cir.).
****Editor's Case Alert****
The city of Los Angeles, California on May 10, 2018, reached a $1.9 million settlement with the plaintiff family in a federal lawsuit brought over the police shooting and killing of a homeless man. The shooting took place in 2015 and was viewed online by many in a YouTube video. A jury in the federal lawsuit, just before the settlement, found that two officers were liable for the death of the 43-year-old decedent, Charley “Africa” Keunang. The jury found that the shooting officer used excessive force and that his supervising sergeant was also liable for failing to intervene. A third officer present was found not liable. The decedent was shot as he “scuffled” with the officers as they responded to a report of an attempted robbery outside of a rescue mission. The county district attorney’s office declined to charge the three officers, and in a 2016 report stated that they were justified in using lethal force because the homeless man had nearly gotten hold of an officer’s holstered gun as they fought. The decedent reportedly had a history of violent, erratic behavior, and had served time in prison for bank robbery. Tchayou v. City of Los Angeles, #CV16-06073, (May 10, 2018, U.S. Dist Court, C.D. Calif.).
First Amendment
A protestor was escorted by police out of an event at a D.C. university where then Secretary of State Hillary Clinton was delivering a speech. He stood during the speech, facing the audience and blocking the view of audience members, wearing a shirt with the words “Veterans for Peace.” He did not respond or react to the officers’ repeated requests to come with them. A federal appeals court held that the officers had probable cause to arrest him because they had issued a sufficient demand for him to leave and he refused their demand. Further, the use of force was not so excessive that no reasonable officer could have believed in the lawfulness of his action. The officers’ actions did not violate the First Amendment right to freedom of speech. McGovern v. Brown, #17-7073, 2018 U.S. App. Lexis 14782
(D.C. Cir.).
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Malicious Prosecution
The plaintiff claimed that various law enforcement defendants attempted to maliciously prosecute him. A federal appeals court agreed that law enforcement corruptly conducting an investigation with a view towards presenting knowingly false charges against an innocent person might well represent an instance of conscience-shocking behavior. In this case, however, the plaintiff had not presented any evidence “beyond surmise” that would allow a reasonable finder of fact to conclude that this actually happened. Accordingly, the trial court erred in failing to grant the defendant’s motion for summary judgment based on qualified immunity. Williams v. Mannis, #17-2017, 2018 U.S. App. Lexis 12262 (8th Cir.).
Public Protection: 911 Phone Systems ****Editor's Case Alert**** A county deputy sheriff called a married couple, who were not county employees, and asked them to go check on their neighbor, who had called 911, allegedly for help related to inclement weather. The couple agreed to do so, and unwittingly walked into a murder scene. They were then brutally attacked by a man who allegedly just murdered their female neighbor and her boyfriend. The couple sued the county and the deputy for misrepresentation and negligence. They claimed that the defendants created a special relationship with them and owed them a duty of care, which they breached by representing that the 911 call was likely weather-related and “probably no big deal” and by withholding information known to the defendants suggesting that there was a crime in progress.
The defendants moved for summary judgment on the grounds that the plaintiffs’ exclusive remedy was workers’ compensation, because California Labor Code section 3366 provides that any person “engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation]. . . .” An intermediate state appeals court agreed, and ruled that section 3366 applied, because responding to a 911 call for help of an uncertain nature is active law enforcement, regardless of the deputy’s alleged misrepresentations. The plaintiffs’ lawsuit was barred on the ground that they were assisting in active law enforcement. Gund v. County of Trinity, #Co76828, 2018 Cal. App. Lexis 522.
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