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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2019 LR August
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CONTENTS
Assault and Battery: Physical
Dogs
Firearms Related: Intentional Use
First Amendment
Immigrants and Immigration Issues
Insurance
Malicious Prosecution
Off-Duty/Color of Law: Firearms Related
Race Discrimination
Search and Seizure: Person
AELE Seminars
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
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.
- Access to cases linked to www.findlaw.com
may require registration, which is free.
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Assault and Battery: Physical In a case
alleging excessive force and failure to train and supervise, a federal
appeals court found that a defendant police officer was entitled to summary
judgment. Under the circumstances, a reasonable officer could have believed
that the plaintiff was resisting arrest and posed a threat to his safety. The
officer faced a “tense and unpredictable” situation and was the only officer
on the scene, confronting two hostile and intoxicated persons who refused to
leave a bar premises on request. The use of an arm-bar takedown to restrain
and handcuff the plaintiff was objectively reasonable under these circumstances. Fischer
v. Hoven, #18-2061,
2019 U.S. App. Lexis 16572 (8th Cir.). Dogs ****Editor's Case Alert****
A Colorado Supreme Court decision on use of drug sniffing dogs says
that, in light of marijuana legalization in the state, police need some degree of particularized
suspicion of criminal activity
(probable cause) to deploy the dogs to detect marijuana--i.e., reason to
believe that a crime has been committed by the person possessing more than
the legal amount allowed or possessing the drug for purposes of illegal
sale--since otherwise the dog could alert to a small legal amount possessed. The state Supreme Court ruled 4-3 that a
sniff of a car by police dogs trained to smell for marijuana in addition to
other drugs constitutes a search. “The dog’s sniff arguably intrudes on a
person’s reasonable expectation of privacy in lawful activity,” the majority
opinion stated. “If so, that intrusion
must be justified by some degree of particularized suspicion of criminal
activity.” “Although possession of guns, alcohol, and tobacco can be unlawful, persons still maintain an expectation of privacy in lawfully using or consuming those items. The same now goes for marijuana: In legalizing marijuana for adults twenty-one and older, Amendment 64 expanded the protections of (the Colorado constitution) to provide a reasonable expectation of privacy to engage in the lawful activity of possessing marijuana in Colorado.” The dissent argues that the majority’s opinion
means that under state law “an individual is held to have a reasonable
expectation of privacy in the commission of (a) federal crime.” People
v. McKnight, #17SC584, 2019
CO. 36, 2019
Colo. Lexis 375, 2019 WL 2167746. Firearms Related: Intentional
Use The mother of a man shot and
killed by two police officers claimed that the shooting violated his
constitutional rights. A federal appeals court, in upholding summary judgment
for the defendant officers, found that there was “no potentially admissible evidence in
the record” to support the plaintiff’s claims that her son was unarmed, or
did not point his gun at the officers, or shoot at one of them. Based on
that, the officers acted reasonably in using deadly force. State law claims
of assault, battery, and wrongful death were also properly rejected. Smith
v. Kilgore,
#18-1040,
2019 U.S. App. Lexis 17391
(8th Cir.). First Amendment ****Editor's Case Alert**** A state trooper was not entitled to summary
judgment based on qualified immunity to a state trooper, in a lawsuit
alleging claims of First Amendment retaliation and Fourth Amendment
unreasonable seizure. The trooper arrested a motorist for disorderly conduct
after the plaintiff yelled a two-word expletive (“fuck you”) at him from a
moving vehicle driving by while the trooper was performing a routine traffic
stop of another vehicle. The trooper argued that the shout
constituted “unreasonable or excessive noise” in violation of state law. The
federal appeals court ruled that the trooper lacked “even arguable” probable
cause for an arrest and thus violated the plaintiff’s Fourth Amendment right
to be free from unreasonable seizure. While the conduct involved may have
been offensive, it was not an unreasonable or excessive noise. The appeals
court also held that the trial court did not err as to the First Amendment
retaliation claim since the trooper had neither probable cause nor arguable
probable cause to arrest the plaintiff, because the profane shout was
protected activity and the arrest was an action that would “chill” continued
free speech activity by a person of ordinary firmness. Thurairajah v. Hollenbeck, #17-3419, 2019 U.S. App. Lexis 16573 (8th Cir.). Immigrants and Immigration
Issues A federal appeals court upheld summary judgment for the federal government in a lawsuit by a foreign national from Honduras under the Federal Tort Claims Act, claiming that he was falsely imprisoned by federal immigration authorities. The trial court correctly determined that Border Patrol and ICE agents acted with authority of law to arrest and detain the plaintiff, who illegally entered the United States, at which time Border Patrol agents lawfully apprehended him. Hernandez Najera v. United States, #17-41212, 2019 U.S. App. Lexis 16954 (5th Cir.). Insurance DNA evidence led to the
exoneration of three men who had together served a total of 83 years in
prison for the rape and murder of a woman. Their confessions were coerced and
evidence was allegedly fabricated. One died in prison and the other two
developed diseases that killed them soon after. Their estates filed a civil
rights lawsuit against the county which prosecuted them. At
issue in the current appeal was whether two of the county’s law enforcement
liability policies require the insurers to defend the civil rights suit. A federal appeals court upheld a
determination that there was a duty to defend. The policies were triggered
when injuries occurred during the policy period despite the fact that the
allegedly wrongful acts that caused the injuries took place before the policy
period. In this case, the provisions of the policies cover bodily injuries
occurring during the policy period, and the estates’ complaint asserted those
injuries during the relevant time periods. Therefore, both insurers have a
duty to defend the county and its officers. Travelers
Indemnity Co. v. Mitchell, #17-60291, 2019
U.S. App. Lexis 15915
(5th Cir.). Malicious Prosecution
There is no viable constitutional claim under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, #301,
403 U.S. 388 (1971), based on assertions that a federal law-enforcement
officer lied, manipulated witnesses, and falsified evidence. In the immediate
case, the claims were that a federally deputized officer duped prosecutors
and a grand jury into believing that the plaintiffs were part of a multistate
sex-trafficking conspiracy. A federal appeals court declined to extend Bivens to cover these claims
and remanded with respect to the 42 U.S.C. 1983 claims against the defendant
for the trial court to consider the applicability of section 1983 in the
first instance. In regard to the unlawful arrest claim,
the court held that defendant was not entitled to qualified immunity because her
actions constituted a violation of a clearly established right. Under these
circumstances, a reasonable officer would know that deliberately misleading
another officer into arresting an innocent individual to protect a sham
investigation was unlawful. Farah
v. Weyker, #17-3207, 2019 U.S. App. Lexis 17566 (8th
Cir.). Off-Duty/Color of Law: Firearms Related
Race Discrimination An SUV rammed the
door of a sedan in an intersection. The sedan driver stated that she
was briefly unconscious and, after coming to, was dazed and in intense pain.
A police officer arrived on the scene and spoke to the SUV driver, who did
not look injured. She then went to the sedan driver, still on her back on the
median. Because she failed to respond “too many times,” the officer refrained
from asking many questions. A Traffic Specialist arrived while paramedics
were looking after the sedan driver. The SUV driver told him that he had
entered the intersection with a green light when his car was struck by the
sedan. This second officer thought that the accident was not severe enough to
warrant significant investigation. He determined that the physical evidence
corroborated the SUV driver’s account. He did not complete a police incident
report but only completed the crash report that Michigan state law requires
for highway-safety planning purposes. In the “Hazardous Action?” box, he wrote “none?” for the SUV driver and “disregarded traffic [signal]” for the sedan driver. Such crash reports cannot be used in court. The sedan driver was hospitalized for several days. When she saw the report, she insisted that the SUV driver ran the light and that she had a witness. Officers followed up but decided against amending the report. The sedan driver then sued the SUV driver, but also filed a federal civil rights claim against the officers and city. She asserted that the investigation violated her equal protection rights and her right of access to the courts. A federal appeals court upheld qualified immunity for the defendant officers, characterizing their actions as “mere laxity” rather than racial discrimination. Green v. Southfield, #18-1775, 925 F.3d 281 (6th Cir. 2019). Search and Seizure: Person ****Editor's Case Alert**** The Pennsylvania Supreme
Court has held that the mere open or concealed carrying of a firearm, without
more, could not be used by state and local law enforcement officers in the
state as a reasonable suspicion of criminal conduct and thus justification
for a stop and frisk of a gun owner. The defendant in this case was stopped
and questioned solely because he was observed on a city camera carrying a
firearm. The court stated that “government may not target and seize specific individuals
without any particular suspicion of wrongdoing, then force them to prove that
they are not committing crimes.” Mere possession of a concealed firearm,
legal in the state for some persons, the court found, provides no basis for
an investigative detention without further indications of illegal activity. “As a matter of law and common sense, a
police officer observing an unknown individual can no more identify whether
that individual has a license in his wallet than discern whether he is a
criminal. Unless a police officer has prior knowledge that a specific
individual is not permitted to carry a concealed firearm, and absent
articulable facts supporting reasonable suspicion that a firearm is being
used or intended to be used in a criminal manner, there simply is no justification for the
conclusion that the mere possession of a firearm, where it lawfully may be
carried, is alone suggestive of criminal activity,” the court stated. Commonwealth v. Hicks. #56-MAP-2017, 2019
Pa. Lexis 3064.
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