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Assault and Battery: Chokehold
Two members of an FBI/Grand
Rapids task force were searching for a male suspect. Neither officer was
wearing a uniform, but both were wearing lanyards displaying their badges.
They knew that the suspect was a 26-year-old white male, 5ʹ10″ to
6ʹ3″ tall, with glasses, who bought a soft drink from a particular
gas station every afternoon. The suspect’s driver’s license photo was seven
years old. The defendants approached the plaintiff (who was not the
suspect) near the gas station.
The plaintiff, a
21-year-old student, 5ʹ10″ to 6ʹ3″, and wearing
glasses, claims that the defendants never identified themselves. The
defendants asserted that that one of them identified himself as a police
officer. The plaintiff gave his name and followed instructions to put his
hands on his head because the defendants “had small badges.” One
officer removed the plaintiff’s wallet. The plaintiff then asked, “[a]re
you mugging me?” and attempted to flee. An officer tackled him. The plaintiff
then yelled for passersby to call the police. The officer then put him in a
chokehold. The plaintiff claimed that he lost consciousness. He also
responded by biting the officer, who started punching him in the head and
face. Bystanders called the police and began filming. Officers arrived and
ordered them to delete their videos because they could reveal undercover FBI
agents. One bystander stated, “They were out of control pounding him.” A 911
caller stated, “[t]hey’re gonna kill this man.”
Emergency room
doctors released the plaintiff with painkillers. Police then arrested him. He
spent the weekend in jail. A jury acquitted him of all charges. The trial
court found that it lacked subject matter jurisdiction over the plaintiff’s
Federal Tort Claims Act (FTCA) claim against the United States, and granted
the defendants summary judgment based on qualified immunity. With respect to
the plaintiff’s 42 U.S.C. 1983 or Bivens civil rights claims, a
federal appeals court reversed. The FTCA judgment bar, 28 U.S.C. 2676, does
not apply because the FTCA judgment was not on the merits. The defendants
were not protected by qualified immunity. A jury could reasonably conclude
that the plaintiff bore no resemblance to the suspect’s photograph. Under
clearly established law, removing the plaintiff’s wallet during a protective
search was unreasonable. Clearly established law held that using a chokehold
when the plaintiff was attempting to flee was objectively unreasonable under
these circumstances. King
v. United States, #17-2101, 2019
U.S. App. Lexis 5438, 2019 Fed. App. 0027P (6th Cir.).
Assault and Battery: Handcuffs
A police officer
was not entitled to qualified immunity from a motorist’s claim that he used
excessive force during a routine traffic stop for speeding and to check
whether the tint on the vehicle’s windows complied with state law. The
federal appeals court held that a police officer, like the one here, was not
entitled to qualified immunity when he intentionally applies unnecessarily
tight handcuffs to an arrestee who is neither resisting arrest nor attempting
to flee, thereby causing serious and permanent injuries. In this case, the
plaintiff was in handcuffs for more than five hours and suffered nerve damage
to his hands and wrists. The court held that such injuries were not de
minimus (minimal) and could be a basis for liability. Sebastian
v. Ortiz, #17-14751, 2019 U.S.
App. Lexis 7477, 2019 WL 1187012 (11th Cir.).
Electronic Control Weapons:
Stun Mode
****Editor's Case
Alert****
A federal appeals
court upheld summary judgment for the defendant officers in an excessive force
lawsuit, holding that an objectively reasonable police officer in May 2013
could have concluded that a single use of a Taser in stun mode to quell a
nonviolent, mentally ill person who was resisting arrest did not violate the
Fourth amendment. It further ruled that, in any case, the officer here
was shielded by qualified immunity.
The plaintiff, a
mentally ill person with bipolar disorder who was tased after fleeing from
the hospital to which she had been involuntarily committed, sued the officer
and the town that employed him, asserting claims under 42 U.S.C. 1983 and
Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131-65,
along with state-law claims for assault and battery and malicious
prosecution. The plaintiff had not complied with the officer’s orders and
could not be handcuffed until after the Taser was used. The magistrate judge
found no violation of the Fourth Amendment under section 1983 and no viable
state-law claims, that the officer was entitled to qualified immunity, and
that there was no violation of the ADA. The federal appeals court affirmed,
holding that the plaintiff presented sufficient evidence to make out a jury
question as to whether the officer used excessive force, but the officer was
entitled to qualified immunity, and that the plaintiff was not entitled to
relief on any of her remaining claims. Gray
v. Cummings, #18-1303, 2019 U.S.
App. Lexis 5270 (1st Cir.).
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False Arrest/Imprisonment:
No Warrant
A federal
appeals court upheld summary judgment against the plaintiff in lawsuit
claiming that he was unlawfully arrested in violation of his Fourth
Amendment rights. The court ruled that law enforcement had probable cause
to arrest the plaintiff where the totality of the circumstances at the time
of the arrest based on a search of his home and computers under a search
warrant were sufficient for the detective to believe that he had committed
or was committing the offense of possessing child pornography. Therefore,
the defendants were entitled to qualified immunity. Finally, because there
was no constitutional violation, no municipal liability attached to the
county and the city. Nader
v. City of Papillion,
#18-1402, 2019 U.S. App. Lexis 6963 (8th Cir.).
False Arrest/Imprisonment:
Warrant
An arrestee claimed
that the county sheriff and others had conspired to violate his civil
rights in an action arising from the political feud in Karnes County, Texas
stemming from the Eagle Ford Shale oil boom. A federal appeals court
reversed the trial court's denial of qualified immunity to the county
sheriff and the deputy sheriff. The court held that the trial court erred
in denying qualified immunity to the county sheriff and deputy sheriff
given plaintiff’s “bare-bones” allegations that the defendants arrested him
under an arrest warrant for criminal harassment purely because of their
political feud with the plaintiff’s wife, who was elected a county judge,
voiced strong opinions concerning how the oil boom was being handled, and
subsequently resigned. The court held that the plaintiff's 42 U.S.C. 1985
claim failed because he failed to allege facts sufficient to show an actual
deprivation of his rights. Furthermore, the plaintiff's conspiracy to
violate 42 U.S.C. 1983 claim failed because the plaintiff only asserted
legal allegations, unsupported by sufficient factual content, that was
insufficient to state a plausible claim for relief. Shaw
v. Villanueva, #17-50937, 2019 U.S. App. Lexis 7131, 2019 WL 1110275 (5th
Cir. 2019).
Firearms Related:
Intentional Use
A
motorist sued two officers, alleging that they violated his Fourth
Amendment rights by using deadly force while arresting him. The officers
attempted to stop him for what they thought might be a stolen license
plate, and he drove towards them for a time in response. A federal appeals
court upheld the denial of the officers’ motions for summary judgment,
holding that they started or continued to fire on plaintiff after they were
no longer in the trajectory of his car and thus violated his Fourth
Amendment right to freedom from excessive force. The court also held that
it was clearly established that using deadly force against him after the officers
were no longer in the car’s trajectory would violate the right to freedom
from excessive force. They were therefore not entitled to qualified
immunity. Williams v.
Strickland, #18-6219, 2019
U.S. App. Lexis 6616 (4th Cir.).
First Amendment
****Editor's Case
Alert****
A police
officer pulled over a female motorist for speeding. He wrote her a ticket
for a lesser, non-moving violation. As she drove away, she made a “vulgar
gesture” at him (giving him the finger). The officer stopped her
again and changed the ticket to a speeding offense. A federal appeals court
upheld the denial of the officer’s motion for dismissal of the
motorist’s federal civil rights lawsuit asserting claims for
unconstitutional seizure, restriction of her liberty, and retaliation.
The plaintiff
did not break any law that would justify the second stop and at most was
exercising her free speech rights. Qualified immunity protects police from
personal liability unless they violate a person’s clearly established
constitutional or statutory rights. In this case, however, the rights
asserted by the motorist meet that standard. The officer’s authority to
seize her in connection with the driving infraction ended when the first
stop concluded. Her “crude gesture” could not provide that new
justification. Any reasonable officer would know that a citizen who raises
her middle finger engages in speech protected by the First Amendment. An
officer who seizes a person for Fourth Amendment purposes without proper
justification and issues her a more severe ticket clearly commits an
“adverse action” that would deter her from repeating that conduct in the
future. Cruise-Gulyas
v. Minard, #18-2196, 2019 U.S.
App. Lexis 7369, 2019 Fed. App. 0043P, 2019 WL 1143852 (6th Cir).
Forfeiture Proceedings
A motorist was driving
a vehicle he owned when a police officer pulled him over. He was arrested
and charged with dealing in marijuana, resisting law enforcement, and
obstruction of justice. The officer had the vehicle towed and held for
forfeiture under Indiana Code 34- 24-1-1(a)(1) and 2(a)(1). The motorist
then demanded the return of his vehicle per I.C. 34-24-1-3. He filed a
federal class-action complaint, claiming such seizures violate the due
process clause. The prosecutor’s office subsequently released the vehicle to
him. The trial court certified a class and granted the
motorist summary judgment, declaring I.C. 34-24-1-1(a)(1) (read in
conjunction with other provisions of the chapter) unconstitutional in
allowing for seizure and retention of vehicles without an opportunity for
an individual to challenge pre-forfeiture deprivation.
While an appeal was pending, Indiana amended the
statute, arguably increasing the available process by providing for a
probable cause affidavit, a motion for provisional release, and a shortened
window for the prosecutor to file a forfeiture complaint. A federal appeals
court remanded for consideration of the constitutionality of the amended
statute, expressing no opinion regarding the constitutionality of the old
or new versions of the statute, regarding mootness, or regarding the class
certification. Washington
v. Marion County Prosecutor,
#17-2933, 916 F.3d 676 (7th Cir. 2019).
Pursuits: Law Enforcement
A man died in an
accident after he drove his motorcycle into a criminal district attorney
investigator’s SUV at the conclusion of a high-speed pursuit. The
motorcyclist had been pursued after he was observed speeding and weaving in
and out of traffic. His estate sued, claiming that he had been seized
in violation of the Fourth Amendment. A federal appeals court held that the
investigator was entitled to qualified immunity. The court ruled that the
plaintiff failed to identify precedent rendering it beyond debate that any
reasonable officer would know, even in only seven seconds, and even in the
midst of a high-speed chase, that the investigator’s rolling block of the
motorcycle violated the Fourth Amendment. To the extent that the court
could identify clearly established law in excessive force cases, it
supported the investigator rather than the decedent. Morrow
v. Meachum, #17-11243, 916
F.3d 676 (5th Cir. 2019).
Terrorism and National
Security Issues
Three Muslim
residents of California filed a lawsuit against U.S. government defendants
and FBI agent defendants, and sought class action certification. They
claimed that the FBI paid a confidential informant to conduct a covert
surveillance program that gathered information about Muslims based solely
on their religious identity. They argued that the investigation involved
unlawful searches and anti-Muslim discrimination, in violation of eleven
constitutional and statutory causes of action.
A federal appeals court ruled that some of the claims dismissed on state
secrets grounds should not have been dismissed outright. Instead, the trial
court should have reviewed any state secrets evidence necessary for a
determination of whether the alleged surveillance was unlawful following
the secrecy protective procedure in the Foreign Intelligence Surveillance
Act (FISA). The court also held that the Fourth Amendment injunctive relief
claim against the official-capacity defendants should not have been
dismissed, because expungement relief was available under the Constitution
to remedy the alleged constitutional violations. Fazaga
v. FBI, #12-56867, 2019 U.S.
App. Lexis 6028 (9th Cir.).
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Investigation,
Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
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Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las
Vegas
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Resources
Children: Adverse Childhood Experiences and Crime, FBI Law
Enforcement Bulletin (April 9, 2019).
Reference:
Cross References
Federal Tort
Claims Act – See also, Assault and Battery: Chokehold
Property – See
also, Forfeiture Proceedings
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