Monthly Law Journal Article: Civil Liability for the Police Use of Impact Projectiles - Part 1, 2012 (11) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Civil Liability for the Police Use of Impact Projectiles - Part 2, 2012 (12) AELE Mo. L. J. 101.

     A college student suffered a permanent eye injury when he was struck by a pepperball projectile fired by a campus police officer. Campus and local police were then attempting to clear a crowd of about 1,000 students holding a party at and near an apartment complex, blocking streets to traffic. The officer who fired the projectile was not entitled to qualified immunity. The action could be found to constitute an unlawful seizure in violation of the injured student's Fourth Amendment rights. Even if the plaintiff actually heard and failed to comply with the police order to the crowd to disperse such a single act of non-compliance, without any attempt to threaten the officers or place them at risk, would not rise to the level of "active resistance" justifying the force used. A reasonable officer, the court believed, would have known that firing projectiles, including pepperballs, in the direction of individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable, even if there was no binding precedent specifically discussing the use of pepperball projectiles in this context. Nelson v. City of Davis, #10-16256, 2012 U.S. App. Lexis 14140 (9th Cir.).
     Investigating reports of a possibly intoxicated driver weaving all over the road in what might be a stolen vehicle, officers observed a parked car of a different model but bearing the same license plate. The female motorist inside ignored orders to exit the vehicle, instead lighting a cigarette, placing her feet out the window, and finally lying on the front seat with her feet on the ground. Officers fired a warning shot from an SL6 baton launcher. Approximately five minutes later, as she continued to ignore their commands, they fired again, hitting her leg and eliciting a yell of pain. They hit her with three further shots, causing her to slump out of the vehicle.  The officers were not entitled to qualified immunity on an excessive force claim. Firing the number of times they did exceeded the amount of force needed to make the arrest. They also did not have a reasonable belief that they were dealing with a car thief, given the contradictory information they had. The arrestee posed no imminent threat as she was not driving the car and did not give them reason to believe that she was about to. In addition, her resistance was passive, rather than active, and she did not try to flee. The appeals court ordered that judgment as a matter of law be entered for the plaintiff and that the trial court hold further proceedings on the amount of damages to be awarded. Phillips v. Community Insurance Corporation, #10-1654, 2012 U.S. App. Lexis 8582 (7th Cir.).
     An excessive force claim against a police chief lacked merit where he was not involved in the removal of an allegedly suicidal man from his parked car by force, including the firing of pepper balls at him. He also was not in a supervisory role over those who removed the man, who were members of an inter-departmental emergency response team. Backes v. Village of Peoria Heights, #10-3748, 2011 U.S. App. Lexis 22652 (7th Cir.).
     Police responded to a 911 call concerning an intoxicated man threatening to kill himself with a pocket knife. He ignored their orders to drop the knife, instead holding it to his throat. The officers used a beanbag shot gun to subdue and disarm him. When he stepped away, and moved towards his parents' house, they shot and killed him. A federal appeals court ruled that the use of the beanbag shotgun may have been excessive, noting that the officers had the option of using the less extreme force of a Taser, but did not do so. The court stated that it was not aware of any published cases holding it reasonable to use a significant amount of force to try to stop someone from attempting suicide." The subsequent gunfire may also have been excessive. Summary judgment for the defendants was reversed, and further proceedings were ordered on the excessive force claims. Glenn v. Washington County, #10-35636, 661 F.3d 460 (9th Cir. 2011).
     A college student filed an excessive force lawsuit against police after he suffered injuries from pepperball launchers that officers fired at bottle-throwing students in a disorderly crowd of up to 1000 people at a party, in the course of attempting to disperse the crowd. The plaintiff's own deposition testimony appeared to indicate that he was not in an area near a doorway when officers fired, thereby suggesting that he was not an intended target of the shooting, but he subsequently presented deposition testimony of two supporting witnesses indicating that he was in the doorway area at the time. The trial court granted the defendants' motion for summary judgment, applying a "sham affidavit" rule which states that a party may not avoid summary judgment by creating a factual dispute with his own testimony through the conflicting evidence of other witnesses. A federal appeals court reversed, however, finding that the rule did not go as far as the trial court applied it. The rule applies, the court indicated, when a party literally attempts to manufacture a "bogus dispute with himself to defeat summary judgment," such as by creating a "sham affidavit." In this case, the plaintiff "points to deposition testimony given under oath by other ... witnesses who had a different viewpoint from the plaintiff's and who had not suffered head injuries sufficient to cause temporary blindness." Since the grant of summary judgment was based on an improper application of the "sham affidavit" rule, the trial court was reversed, and further proceedings ordered. Nelson v. City of Davis, #07-16905, 2009 U.S. App. Lexis 14765 (9th Cir.).
     Police officer was not entitled to qualified immunity in lawsuit claiming that he shot a man attempting to peacefully leave a street party riot with a beanbag propellant gun, since the right to not be subjected to the use of non-lethal force, under such circumstances, was clearly established. There was no evidence, however, of inadequate training by the city on the use of the beanbag weapon. Ciminillo v. Streicher, No. 04-4346, 2006 U.S. App. Lexis 1020 (6th Cir.). [2006 LR Mar]
     Federal court grants summary judgment to Taser International in lawsuit filed by city attempting to obtain indemnification on a products liability basis for the death of an arrestee killed by a police officer who mistakenly shot him with her Glock semiautomatic weapon when she intended to use her Taser. Court rejects argument that Taser was liable because of a "design defect" making the Taser look too much like a gun, or on the basis of several other theories. Torres v. City of Madera, #02-6385, U.S. District Court, E.D. Cal. (July 11, 2005). [2005 LR Sep]
     Police officer who allegedly intentionally aimed and shot "less lethal projectile" at the head of a "non-threatening" suspect with suicidal tendencies was not entitled to qualified immunity in federal civil rights lawsuit. Mercado v. City of Orlando, No. 04-13477, 407 F.3d 1152 (11th Cir. 2005). [2005 LR Jul]
     Officer did not act unreasonably in shooting a man in the head with a non-lethal projectile in order to prevent his suicide after he refused to drop a knife he was pointing at his own heart. The force used was not excessive, despite the fact that it resulted in a skull fracture, brain damage, and disabling injuries. Mercado v. City of Orlando, #6:03-cv-227-ORL-18KRS, 323 F.Supp. 2d 1266 (M.D. Fla. 2004). [2004 LR Oct]