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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2019 LR March
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CONTENTS
False Arrest/Imprisonment: Warrant
False Arrest/Imprisonment: Wrongful Detention
Federal Tort Claims Act
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
Governmental Liability: Policy/Custom (3 cases)
Public Protection: Crime Victims
Search and Seizure: Vehicle
AELE Seminars
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 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.
- 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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False Arrest/Imprisonment: Warrant
A man charged with murdering his elderly mother was held in custody for two months. In a federal civil rights lawsuit, he claimed that the detective who investigated the case submitted a probable cause affidavit that contained lies and omitted exculpatory evidence. The case was dismissed by the prosecutor as a result of evidentiary problems. The detective sought qualified immunity. A federal appeals court upheld the denial of that defense. The detective conceded, for purposes of appeal, that he knowingly or recklessly made false statements in the probable cause affidavit, arguing that knowingly or recklessly misleading the magistrate in a probable cause affidavit only violates the Fourth Amendment if the omissions and lies were material to probable cause. The appeals court rejected that argument. Materiality depends on whether the affidavit demonstrates probable cause when the lies are taken out and the exculpatory evidence is added in. When that is done in this case, the affidavit failed to establish probable cause to believe that the plaintiff murdered his mother.
It is clearly established that it violates the Fourth Amendment “to use deliberately falsified allegations to demonstrate probable cause,” so the detective was not entitled to qualified immunity. It was unremarkable that the plaintiff had a key to his mother’s apartment, checked on her frequently, and stood to inherit from her. There was conflicting evidence on the detective’s theory that the mother was murdered by someone she knew rather than a thief, and any inference from the plaintiff’s refusal to take a polygraph was weak. Further, the observable evidence supported the plaintiff’s description of his mother as having been hit in the head, even though he had not looked under the blanket, which did not mean that he was the one who had hit her. Rainsberger v. Benner, #17-2521, 2019 U.S. App. Lexis 1325 (7th Cir.).
False Arrest/Imprisonment: Wrongful Detention
The plaintiff was convicted of 28 counts of felony murder for causing a fire at a hotel that caused 28 deaths. In 2013, he presented newly discovered evidence that showed that arson was not the cause of the hotel fire. He agreed to a plea deal in which the original convictions were vacated and he pled no contest to the same charges and was resentenced to time served and immediately released. He then sued the county and city in state court for federal civil rights violations—specifically violations of his right to due process and a fair trial. The lawsuit was removed to federal court.
A federal appeals court ruled that a plaintiff in a federal civil rights lawsuit may not recover incarceration-related damages for any period of incarceration supported by a valid, unchallenged conviction and sentence. Exercising its discretion, the appeals court held that the plaintiff’s valid 2013 conviction and sentence were the sole legal causes of his incarceration, which took the place of his earlier conviction and sentence, and therefore he could not recover damages for wrongful incarceration. Taylor v. County of Pima, #17-16980, 2019 U.S. App. Lexis 1545 (9th Cir.).
Federal Tort Claims Act
In 2008, three people (one man and two women) took a Caribbean cruise which stopped at several foreign ports before returning to the U.S. A number of the foreign ports were known sources of narcotics. When reboarding the ship in Puerto Rico, a can of shaving powder in the man’s bag spilled on a U.S. Customs and Border Protection (CBP) officer. The plaintiff travelers later claimed that officers’ subsequent actions were retaliation for them laughing at the incident. Their bags were searched and nothing unlawful was found, but a notation was made in the Treasury Enforcement Communications System (TECS) database that the man whose shaving powder had spilled had appeared “disoriented and nervous” and that it took him “some time” to state his employment when asked.
The database already had entries from 2000, 2004, and 2006 linking the travelers to suspicions of engaging in drug smuggling. Their cabins were then searched, but no contraband was found. The three plaintiff travelers asserted claims against the officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, #301, 403 U.S. 388 (1971) for allegedly violating their Fourth Amendment rights and tort claims against the federal government under the Federal Tort Claims Act (FTCA). A federal appeals court upheld summary judgment in favor of the officers and the government.
The officers were entitled to qualified immunity because, while the United States Court of Appeals for the Third Circuit had ruled on September 4, 2008 that a search of a cruise ship cabin at the border had to be supported by reasonable suspicion, that standard could not be said to have been clearly established in the Third Circuit or the First Circuit on September 5 and 6, 2008, when the searches took place, as the officers could not reasonably be expected to have learned of this development within one or two days. That legal standard was therefore not “clearly established at the time. Further, the U.S. government was shielded from liability under the FTCA’s discretionary function exception, as the agents exercised discretion in making entries into the database and carrying out the searches. Bryan v. U.S., #17-1519, 2019 U.S. App. Lexis 1711 (3d Cir.).
Firearms Related: Intentional Use
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A police officer who responded to a report about two suspicious men in a neighborhood possibly looking for houses to burglarize found them standing together on a sidewalk. A Terry v. Ohio, #67, 392 U.S. 1, 21, 27 (1968) frisk led to a tussle on the ground, followed by the discharge of a concealed pistol one of the men had. The officer at one point attempted to use his Taser, but it didn’t work. The man whose gun discharged ran away and the officer shot him, resulting in his death. The dead man’s mother (who was also the administrator of his estate) sued the officer, the city, and the police officer for federal civil rights violations as well as state tort claims. The trial court denied the officer summary judgment on one claim concerning illegal search, which the officer appealed, while the plaintiff also appealed the grant of summary judgment on the other claims, including excessive force with regards to the shooting.
A federal appeals court ruled that the officer was not entitled to summary judgment on the Terry stop-and-frisk search. The frisk and events leading up to it were captured on video. The appeals court found that, at the very least, a jury could watch the suspect’s behavior and disagree with the officer that an objective officer “would perceive furtiveness and reasonably suspect criminality or dangerousness. Walking away from a consensual conversation with an officer is not in itself enough to justify reasonable suspicion.” The appeals court also agreed that the plaintiff was not entitled to judgment in her favor on the other claims raised by the use of deadly force. “An officer may employ deadly force to prevent a suspect’s flight if, in the moments immediately preceding the officer’s decision, he ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.’” If so, deadly force may be used while the suspect attempts to flee, particularly when, as here, the suspect still had the recently discharged gun, as nothing prevented him from turning and firing at the officer. Wilkerson v. City of Akron, #17-4157, (6th Cir.). |
Firearms Related: Second Amendment Issues
A federal appeals court upheld the dismissal of a man’s action seeking to enjoin the enforcement of 18 U.S.C. 922(g)(1), which prohibits anyone convicted of a crime punishable by imprisonment for a term exceeding one year from owning firearms for life. He claimed that, as applied to him, it violated the Second Amendment because he posed no heightened risk of gun violence. He had been convicted as a felon for falsifying his income on mortgage applications twenty-seven years before. The court held that, in this as applied challenge, the plaintiff failed to show facts about his conviction that distinguished him from other convicted felons encompassed by the section 922(g)(1) prohibition. Felons, the court commented, are not “among the law-abiding, responsible citizens” entitled to the protections of the Second Amendment. Medina v. Whitaker, #17-5248, 2019 U.S. App. Lexis1681 (D.C. Cir.).
Governmental Liability: Policy/Custom
****Editor's Case Alert****
Police officers forcibly entered and without a warrant searched the apartment rented by a man’s girlfriend. They arrested the man, who was present in the apartment, after they found drugs in a common area that was shared by multiple tenants. He was incarcerated for over six months and indicted for various drug offenses. A state court ruled that the search was unlawful and the charges were dropped. He sued the city and various officers, alleging that the city had a pattern or practice of constitutional violations and failed to train, supervise, and discipline its officers. The lawsuit also asserted an unlawful search claim against the officers and argued that they were liable for false imprisonment and malicious prosecution. The trial court dismissed all of the claims as inadequately pled and held the city did not have an ongoing practice of unconstitutional searches and arrests. While the plaintiff’s appeal was pending, he died, and the appeal was pursued by his estate. A federal appeals court vacated in part, finding that most of the plaintiff’s claims did not withstand dismissal, but that it adequately alleged that the police department had a custom of warrantless searches and false arrests. The plaintiff also sufficiently pled that the department failed to train, supervise, and discipline its officers, specifically with respect to the requirements of the Fourth Amendment. Estate of Roman v. Newark, #17-2302, 2019 U.S. App. Lexis 3154 2019 WL 348658 (3d Cir.).
A man claimed that New York City and other defendants violated his constitutional rights in connection with his criminal trial for murder, causing his wrongful conviction, and resulting in damages. While the trial court granted the defendants’ motion for summary judgment, a federal appeals court ruled that the raised material issues of fact as to certain, but not all, of his claims that police detectives fabricated and withheld material evidence. The court also held that the city may be held liable for the consequences of the alleged policies of the Queens County District Attorney's (QCDA) office under the Monell v. Department of Social Services of City of New York, #75-1914, 436 U.S.658 (1978) doctrine, and that the plaintiff had raised material issues of fact as to the underlying constitutional violations, specifically the non-disclosure of substantial financial relocation benefits received by one of the state’s principal witnesses against him and the impropriety of his prosecutor’s prejudicial remarks during the summation at his trial, including the statement that “I know who committed the murder,” falsely implying personal knowledge or that there was other evidence, not given to the jury, supporting the defendant’s guilt. Further proceedings were therefore required. Bellamy v. City of New York, #17-1859, 2019 U.S. App. Lexis 2914 (2nd Cir.).
A woman claimed that she was arrested, her car was towed, and she was held at the police station until it was discovered that she had already paid certain fines. A federal appeals court held that the dismissal of the lawsuit was erroneous because, whether or not the court clerk had absolute or qualified immunity, that immunity did not foreclose an action against the city if the complaint adequately alleged an unconstitutional policy or custom and an unconstitutional act by the clerk as a city employee. The clerk allegedly failed to properly document that she had paid certain fines and then requested the issuance of a warrant for her arrest. Although the record had not been developed with respect to the clerk’s duties and responsibilities, the source of the clerk’s pay, or the degree that state or local officials exercised over the clerk, the court held that the complaint at least stated a plausible claim of wrongdoing. Therefore, further proceedings were ordered. Evans v. City of Helena-West Helena, #17-2005, 2019 U.S. App. Lexis 1140 (8th Cir.).
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Public Protection: Crime Victims Two grandparents filed a lawsuit against state social workers for civil rights violations for failure to protect and against the state agency which employed them for negligence after two young boys were murdered by their father during a social-worker-supervised visit during dependency proceedings initiated by the agency. The father was a suspect in the disappearance of the children’s mother, his wife. Child pornography was found on 15 computers during a search of his home. A federal appeals court upheld summary judgment for the social workers, ruling that there was insufficient evidence to show that they recognized, or should have recognized, an objective substantial risk that the father would physically harm his sons. They did not act with deliberate indifference to the boys’ liberty interests and they were therefore entitled to qualified immunity. The court reversed, however, the dismissal of the negligence claims against the agency, finding that material issues of fact existed regarding whether the agency used reasonable care to avoid placing the boys in harm’s way and whether its actions proximately caused the boys to be placed in harm's way. Cox v. Washington, #15-35964, 2019 U.S. App. Lexis 884 (9th Cir.). Search and Seizure: Vehicle ****Editor's Case Alert****
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