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Civil Liability of
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Public Protection: Crime & Accident Victims
Monthly
Law Journal Article: Public Protection: Injured
Crime and Accident Victims, 2009 (8) AELE Mo. L. J. 101.
Monthly Law
Journal Article: Ninth Circuit
Applies “State-Created Danger” Doctrine To Police Liability for Domestic
Violence, 2020 (2) AELE Mo. L.J. 101.
A federal appeals
court upheld summary judgment for police officers in a federal civil rights
lawsuit pursued by a domestic abuse victim. It found that the officers’ conduct
had in fact violated the plaintiff’s constitutional right to due process by
affirmatively increasing the known and obvious danger she faced. At the same
time, however, the officers were entitled to qualified immunity, as it was not
clear at the time of the incident that their conduct was unconstitutional. The appeals court ruled that the “state-created danger”
doctrine applies when an officer reveals a domestic violence complaint made in
confidence to an abuser while simultaneously making disparaging comments about
the victim in a manner that reasonably “emboldens” the abuser to continue
abusing the victim. It also applies when an officer praises an abuser in
the abuser’s presence after the abuser has been protected from arrest, in a
manner that communicates to them that they may continue abusing the victim
“with impunity.” Martinez
v. City of Clovis, #17-17492, 943 F.3d 1260 (9th
Cir. 2019).
A man stabbed and killed
his pregnant wife and their unborn child, right outside a courthouse where she
had just gotten a protective order against him. The plaintiffs, including the
decedent’s estate and guardian of her surviving children, sued the defendant
police officer, claiming that he was responsible for the deaths because he
enabled the husband to postpone his self-surrender on a misdemeanor arrest
warrant, providing him with an opportunity to commit the assault. A federal
appeals court previously upheld the denial of qualified immunity to the
defendant in Robinson
v. Lioi, #12-1922, 536 F. App’x 340, 2013 U.S. App. Lexis 15458, 2013 WL
3892803 (4th Cir. 2013), after which the plaintiffs added a second defendant
officer and the trial court granted both defendants summary judgment. A federal
appeals court upheld this result. The plaintiffs failed to present
sufficient evidence for reasonable jurors to find by a preponderance of the
evidence that the defendants undertook any “affirmative acts” that would
support liability for a state-created danger substantive due process claim. The
court noted that the threat that
the husband posed to the victim existed prior to and independent of the
officers’ interactions with the husband. Graves
v. Lioi, #17-1848, 2019 U.S. App. Lexis 21005, 2019
WL 314375 (4th Cir.).
In
2015, the San Francisco sheriff issued a memo establishing protocols and
parameters for communications between the sheriff’s department employees and ICE.
It stated that employees “shall not provide” “non-public” information to ICE,
including “release dates or times,” Days later, ICE sent a detainer request
asking the sheriff’s department to notify ICE before releasing undocumented
alien, Juan Francisco Lopez-Sanchez, and to hold him until ICE could take
custody of him. He was released without any notice of his release date being
sent to ICE. He subsequently shot and killed the plaintiffs’ daughter, a
32-year-old woman, after he was released. Following the shooting, ICE issued a
statement that said, in part, “If the local authorities had merely notified
[U.S. Immigration and Customs Enforcement] that they were about to release this
individual into the community, ICE could have taken custody of him and had him
removed from the country—thus preventing this terrible tragedy.”A federal
appeals court upheld the dismissal of a general negligence claim against city
defendants. While the court expressed sympathy with the plaintiffs, the issue
of discretionary immunity was controlled by California law. The court found
that the issuance of the memo was a discretionary act that was entitled to
immunity under section 820.2 of the California Government Code. California law,
therefore, barred the plaintiffs’ negligence claim. The court rejected the
plaintiffs’ argument that the Memo was a legislative act stripping the sheriff
of discretionary act immunity. The failure to provide ICE with the alien’s
release date in fact violated the California Public Records Act; and the memo
violated California Health and Safety Code section 11369. Steinle v. City and County of San Francisco, #17-16283, 2019
U.S. App. Lexis 8784, 2019 WL 1323172 (9th Cir.).
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.).
After a man took hostages
at a Wisconsin motorcycle shop and threatened to start shooting, police
unsuccessfully attempted to enter the premises. One hostage managed to escape
out of the back door of the shop and was shot and killed in the alley by two
officers who mistakenly believed that he was the hostage taker. The hostage’s
wife sued the officers and city for unreasonable and excessive use of force. A
federal appeals court upheld summary judgment for the officers on the basis of
qualified immunity. It ruled that the officers’ conduct was
not objectively unreasonable under the Fourth Amendment and that even if their
conduct was unreasonable, they were shielded from liability by qualified
immunity. At least one officer believed that the situation was an ambush and
that when the hostage appeared in the officers; line‐of‐sight
holding a gun, the officers, in a matter of seconds, concluded that the hostage
was one of the people inside the shop who had shot at them only minutes ago. Mason-Funk v. City of
Neenah, #17-3380, 895 F.3d 504 (7th Cir. 2018).
After a California motorist repeatedly hit a parked car, local police requested
that the state DMV perform a regular reexamination. The motorist passed the
written test, as well as vision and physical examinations, but failed to show
up to take her driving test, leading to her driver’s license suspension in May
2011. She subsequently caused another accident that resulted in major
damage to both vehicles and her own ankle injury. She then submitted updated
medical and vision evaluations, which again revealed no condition that would
affect her ability to drive safely during the day. She took her
behind-the-wheel driving test and received an unsatisfactory score with seven
critical errors. The DMV continued her license suspension. She then enrolled in
a private driving school and later took the driving test and received a satisfactory
score, ending her license suspension. On July 3, 2013, the motorist, then age
93, unlawfully turned into oncoming traffic and collided with a motorcycle. The
accident severed the motorcyclist’s leg, broke his other leg and pelvis,
damaged his spine, and left him paralyzed from the waist down. He sued the
motorist, the state, and the DMV. An intermediate California appeals court
upheld summary judgment for the DMV, finding that there was no material
disputed fact that the DMV’s decision to lift the motorist’s license suspension
was a discretionary act, so that the DMV was entitled to immunity under a state
statute, Government Code section 818.4. Richardson v. Department of Motor
Vehicles, #A148613, 25 Cal. App. 5th 102.
A woman and her mother
brought a federal civil rights lawsuit against ten Maine state police
officers after her former boyfriend broke into her parents’ home, fatally shot
her new boyfriend, shot and seriously injured the mother, abducted the woman,
and engaged in a shootout with the officer during which another person was shot
and killed. The lawsuit claimed that these losses were the result of a failure
to protect the plaintiffs “from dangers which Defendants themselves created.” A
federal appeals court vacated the dismissal of the lawsuit on the basis of
failure to state a claim and the individual officers’ qualified immunity. The
appeals court held that it could not be said that the plaintiffs failed to
state a substantive due process claim or that the officers were entitled to qualified
immunity. Prior to the incident, the woman told the police that her
ex-boyfriend had abducted, raped, and threatened to kill her, and an officer
left the ex-boyfriend a voice message about the complaint, which was followed
by the new violent episode. Dismissal of a Fourteenth Amendment state-created
danger substantive due process claim was inappropriate because the record was
devoid of any facts on whether the officers’ decision to leave a voice message
was in line with police protocol and training, and the record offered no facts
on exactly what the officers knew about the veracity of the allegations that
the woman had made, about the ex-boyfriend’s propensity for violence, and about
the risk that the ex-boyfriend would act on that propensity to harm her. Irish v. State of Maine. #16-2173, 2017 U.S. App.
Lexis 3731 (1st Cir.).
The
estates of two people killed in a drunk driving accident on a Native American
reservation sued the federal government under the Federal Tort Claims Act
(FTCA), 28 U.S.C. 2674, arguing that tribal police were negligent in failing to
locate and arrest the drunk driver prior to the accident. A federal appeals
court upheld the dismissal of the claim, finding that, under South Dakota law,
applicable to the defendant under the FTCA, there was no mandatory duty on
police to protect a particular person or class of people absent a special
relationship. The tribal police in this case did nothing that increased the
risk of harm to the decedents by failing to arrest the drunk driver after his
erratic driving was reported. Sorace v. United States, #14-2683, 788 F.3d 758
(8th Cir. 2015).
A police officer arrived at an apartment building
in response to a complaint about minors drinking outdoors there. A minor white
female drinking with a group of three African-American males, was so
intoxicated that she could not stand up by herself, so one of them had to hold
her up from behind. The officer arrived and talked to the males, allowing them
to leave with the female without asking for identification. One of the males
was on probation for armed robbery and the other two males were minors. The
three males then carried the female to a laundry room, and the apartment site
manager again called police. Officers arrived and caught the probationer
sexually assaulting the girl in the laundry room. In a failure to protect
lawsuit, a federal appeals court found that the officer had not created the
danger to the girl or done anything to make it worse. He was entitled to
qualified immunity from liability. The court also rejected arguments that the
officer was a racist who wanted the girl to come to harm because she as white
and socializing with African-Americans. The plaintiff's reference to another
incident in which the officer while operating an unmarked police car, ran over
and killed an eight-year-old African-American boy and lied to cover it up was
not similar to the immediate incident, and any connection was speculative. Doe
v. Vill. of Arlington Heights, #14-1461, 2015 U.S. App. Lexis 5972 (7th Cir.).
A woman who was a victim of domestic violence
claimed that an officer made a number of statements to her concerning her
husband, such as "everything is ok, everything is in process," and
"he's going to be in prison for a while." The husband two days later
later stabbed her with a knife. She claimed that she justifiably relied on the
officer's reassurances. The highest court in New York overturned summary
judgment for the defendant police department, finding that the evidence
presented was sufficient to raise a triable issue of fact as to whether there
was a special relationship that existed between her and the police. The court
rejected negligent infliction of emotional distress claims on behalf of the
woman's child, who was in a broom closet at the time of the attack, and
therefore was not in the zone of danger. Coleson v. City of New York, #191,
2014 N.Y. Lexis 3344, 2014 NY Slip Op 08213.
A woman had a protective order requiring a man
who had been convicted of domestic abuse to stay away from her and her home.
She told a police officer that the man had been violating the order by calling
and visiting her home. When the officer said that he would contact the man to
get his side of the story, the woman told him that if he did so without arresting
the man, it was very likely that the man would come to her home and violently
retaliate. That was exactly what happened, and the man broke into her home and
shot her three times after being questioned by an officer. A federal appeals
court rejected her substantive due process/state created danger claim against
the officer, as the officer was facing conflicting versions of what had
happened and whether the man had violated the protective order, and his
decision not to arrest him was therefore not conscience shocking. Nothing that
this and other officers did or failed to do showed a state created danger or
the existence of a special relationship imposing a duty to protect. There was
also nothing to show that officers who responded to the incident were deliberately
indifferent to the woman's injuries. The appeals court reversed, however,
summary judgment for the State of Iowa, a halfway house where the man resided,
and the director of that facility, on claims that they were deliberately
indifferent to the man's history of violating a protective order. The plaintiff
did not have notice that the trial court was considering summary judgment for
the state defendants and no opportunity to make legal arguments on these
claims. Montgomery v. City of Ames, #13-2111, 2014 U.S. App. Lexis 6572 (8th
Cir.).
A woman was shot three times by her husband
before he committed suicide. She sued officials , arguing that, while there is
no general obligation to protect specific people against crime, once protective
services are provided, the state cannot protect men while failing to protect
women. She claimed that law enforcement officers should have protected her
because some relatives had told them that her husband was potentially violent
and suicidal. Additionally, she asserted that she had reported that her husband
hit her, obtained an order of protection, that her husband had admitted
violating, and that guns he had acquired were not confiscated despite being
illegally obtained. Further, when her husband was finally arrested for domestic
violence, he was quickly released. A federal appeals court overturned a denial
of qualified immunity for the defendants. It reasoned that the fact that the
defendants had a different assessment of the risk that her husband posed to her
than the plaintiff had did not prove that they engaged in sex discrimination.
Bond v. Atkinson, #11-3275, 2013 U.S. App. Lexis 17815 (7th Cir.).
The Supreme Court of Mississippi found that a city was
not liable for the death of a runaway female juvenile based on a beating by her
boyfriend. City police had taken her into custody on a number of occasions, and
the police department allegedly failed to properly investigate her claims she
was having sex with an officer and by failing to apprehend her in a timely
manner and return her to the custody or her parents or an appropriate agency.
The city was immune from liability under a state tort claims act. The decision
as to how to investigate the case or whether to investigate it was a
discretionary function. A $1 million award in favor of the plaintiffs was
reversed. City of Jackson, Mississippi v. Sandifer, Jr., #2011-CA-01063-SCT,
2013 Miss. Lexis 60.
A woman claimed that police officers acted
negligently in failing to pick up and remove shotgun shells that were lying
near a suspect they stopped and questioned on suspicion of burglary. The
suspect later returned to the scene, retrieved the shells, and allegedly used
them to shoot and kill the woman's husband. While there may be an independent
duty to provide protection against the criminal acts of a third party when the
defendant's own affirmative act creates or exposes another to the recognizably
high degree of risk of harm. But the court also ruled that, in this case, the
officers' alleged action of failing to pick up the shotgun hells during an
investigatory stop did not add up to such an "affirmative" act for
which there could be liability. Robb v. City of Seattle, #85658-3, 2013 Wash.
Lexis 73.
A female college student was brought to a
hospital emergency room after she passed out at a party. Despite their concern
that she might have been involuntarily drugged and then raped, police officers
declined to authorize the carrying out of a forensic exam. Subsequently, she
sued the District of Columbia, claiming that its police were negligent in
failing to investigate her possible sexual assault, and that the District
negligently hired, trained and supervised the officers in the area of
investigating sexual assaults. Summary judgment was properly granted for the
defendant District on these claims. The officers owed a duty to investigate
possible crimes to the public, not to any specific individual. Additionally,
the officers did not prevent the hospital from administering any forensic test,
and had its own independent authority to do so if it wished, but declined to do
so. McGaughey v. District of Columbia, #11–7001, 2012 U.S. App. Lexis 14568
(D.C. Cir.)
Officers were entitled to qualified immunity for
temporarily physically separating a twenty-one-month-old male infant from his
mother. The child became entangled in a soccer net, and was extricated by his
mother, who found him not breathing. Officers summoned to the scene saw
strangulation marks on the child and declared the area a crime scene. The mother
was taken away because she kept screaming threats of suicide. The child died,
and the mother sued, claiming that the officers' actions slowed down the
efforts of paramedics to save him. There was no clearly established due process
duty to provide protection and medical treatment to the child in these
circumstances. Cantrell v. City of Murphy, #10–41138, 2012 U.S. App. Lexis 63
(5th Cir.).
An intoxicated driver struck a motorist who had
been lying injured on the road after his own apparent alcohol-related accident.
He sued two highway patrolmen who responded to his accident for failure to
protect him from the intoxicated driver. A federal appeals court upheld summary
judgment for the defendants, as the evidence did not show that they had taken
the plaintiff into custody and held him against his will, triggering a duty to
protect him. The officers did not move the motorist, awaiting the arrival of an
ambulance, as they feared he had suffered a spinal injury, but they did attempt
to stop the oncoming vehicle driven by the intoxicated driver, who ignored
their directions. Dodd v. Jones, #09-2016; 623 F.3d 563 (8th Cir. 2010).
An officer who served as a crash investigator was
dispatched to the scene of an accident that took place between a female
motorist and a male motorcycle rider. The officer, who observed the motorcycle
rider lying face down after having been thrown and landing head first on the
street, believed that he was dead. Other officers were already on the scene. He
later claimed that the female motorist, while "a little shaken up,"
had told him that she was not injured. He handed back her driver's license,
registration, and insurance card, and suggested that she could leave her
disabled car at the parking lot of a nearby gas station, which she did. The
officer returned to his vehicle to complete paperwork, and did not inquire as
to how the motorist was getting home or offer to assist her in doing so. The
elderly female motorist declined an offer from the gas station attendant to
drive her home if she would wait there until closing time, and she stated that
she could walk home. As she attempted to do so, she was struck by a hit and run
driver as she crossed a street, suffering serious injuries, and was
hospitalized for various surgeries and treatments until she died. A lawsuit
against the township and officer contended that they were responsible for her
injuries at the hands of the hit and run driver by "abandoning" her
at the scene of the first accident. The trial court and intermediate appeals court
entered summary judgment for the defendants, finding them immune from liability
for the officer's performance of discretionary acts at the scene of the first
accident. The courts rejected an argument that the officer negligently
performed ministerial duties in connection with the accident, for which state
law does not provide immunity, since the female motorist had not asked him to
provide aid. This was also not a case in which the motorist was plainly
incapacitated, so that even if the officer was not exercising discretion, there
was no evidence that he "negligently performed a ministerial task."
Pappas v. Union Township, #A-5850-08T2, 2010 N.J. Super. Unpub. Lexis 2054
(A.D.).
A woman attacked by her neighbors claimed that
the city should be liable for her injuries because it failed to provide her
with adequate police protection. Rejecting that claim, the court found no
evidence of a special relationship between the city and the victim. The city
did not affirmatively undertake to provide her with police protection, and only
vague and ambiguous assurances were made to her, instructing her to call police
if anything actually happened. There were no promises of protection against the
complained of harassment upon which the plaintiff could have reasonably relied.
Brown v City of New York, #32269/03, 2009-02098, 2010 N.Y. App. Div. Lexis 4452
(2nd Dept.).
A woman injured in an auto accident while
she was a passenger in a car driven by an intoxicated person sued a police
officer who came to the scene, arguing that her paraplegia was not the result
of the driver's intoxication, but of the officer's failure to call an
ambulance. Rejecting this claim, the appeals court noted that the plaintiff
herself was "adamant" in her repeated refusals of help from the
officer, who repeatedly said that he would summon an ambulance if she wanted
one. The officer breached no duty to the plaintiff, and there was no evidence
that he made any misrepresentation to her that she relied on to her detriment.
He did not promise to call an ambulance and then fail to do so, or tell the
plaintiff that she was fine while actually believing that she was injured. He
also did not tell others to move her while actually believing that she should
stay still. The appeals court overturned a jury's award of $2,690,608 to the
plaintiff. "Police routinely respond to emergencies, but they do not have
a 'legal duty' to do so. By that, we mean that an officer's failure to respond
to a request for assistance will not result in tort liability for the officer
even if a member of the public is injured by the officer's failure to act,
i.e., his or her nonfeasance. If they do respond and their affirmative acts
negligently cause harm to a person in need of assistance, their misfeasance may
create a special relationship and result in tort liability [...T]his tragic
case involves an officer's nonfeasance that did not alter the risk of harm to
the person in need." Camp v. State of California, #B209176, 2010 Cal. App.
Lexis 695 (2nd Dist.).
A motorist died in a traffic accident at an
intersection where a deputy was directing traffic. The county was entitled to
immunity, as the deputy could not be found negligent for failing to remove an
obstruction from the intersection. The court declined, however, to uphold
summary judgment for the deputy, as there was some evidence from which it could
be argued that he acted recklessly towards a known risk of harm while directing
traffic. Just before the accident, he allegedly waved a motorcycle into the
intersection despite oncoming traffic that required the motorcyclist to stop to
avoid a collision. Widen v. County of Pike, #09CA794, 2010 Ohio App. Lexis 1794
(4th Dist.).
FBI agents allegedly protected a group of
murderers, referred to as the "Bulger gang," against apprehension and
prosecution, in order to use them as informants against La Cosa Nostra. This
allegedly continued for over twenty years, despite notice that the informants
were killers and would continue to commit murders. The estates of three persons
allegedly killed by the informants sued the FBI, FBI agents, and the
informants. The U.S. government was liable for the death of a man killed after
an FBI agent allegedly leaked his intent to incriminate an informant, making it
foreseeable that the informant would try to murder him. The government was also
liable for the deaths of an informant's former girlfriend and her daughter,
because a federal agent created an unreasonable risk of harm to them by helping
the informants avoid arrest. The federal agents' conduct was within the scope
of their employment, given that their superiors agreed to their actions to
protect the informants. The court rejected, however, claims by the decedents'
families for intentional infliction of emotional distress because they lacked
"contemporaneous" knowledge of the murders. An exception to liability
under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., for
discretionary functions did not apply, as the conduct of the FBI was found to
be criminal and in violation of the agency's guidelines. One family was awarded
a total of $1,150,000, a second family received a total of $1,352,005, and a
third received $219,795. Litif v. U.S., Civil Action #02-11791, 2010 U.S. Dist.
Lexis 7493 (D. Mass.).
A township and its emergency responders were not liable
for allegedly failing to provide medical care to a car accident victim or for
allegedly spreading false information that he was already dead, resulting in
other emergency responders also not treating him, and his subsequent death. The
decedent was not in custody at the time, as the defendants had not restrained
him and the only restraint was the circumstances of the accident. The
state-created danger doctrine did not apply, as his injuries were caused by the
accident, not the defendants' actions. The responders, at the time, were at the
scene of a multi-vehicle accident where they had to evaluate where their
efforts would be most useful, and could not be held liable for how they made
that determination. Willis v. Charter Township of Emmett, #08-2100, 2010 U.S.
App. Lexis 194 (Unpub. 6th Cir.).
A woman sued a transit authority and railroad, seeking
damages for an attack she suffered on their property when she was attacked by a
group of homeless men living there. The basis of her complaint was the failure
of the defendants to remove the homeless encampment from the property, and the
alleged failure to consider safety problems that could arise from their
"homeless outreach" program. Rejecting liability, an intermediate New
York appellate court found that the defendants made a discretionary
governmental policy decision in enacting a "social outreach" program
rather than using force to oust the homeless group from the premises. As a
result, there could be no liability under state law for the allegedly resulting
attack. Doe v City of New York, 2008-09461, 2009 N.Y. App. Div. Lexis 8419 (2nd
Dept.).
A Caucasian man suffered injuries when he was
allegedly attacked by a group of black men while walking across a vacant lot in
a town, after they told him that white people were "not allowed" in
that part of town. He sued a town, the county, and the county sheriff for
violation of his substantive due process rights for failing to protect him
against the assault. The defendants were entitled to summary judgment on the
plaintiff's federal civil rights claims, since they had not created the danger
to him. The defendants did not establish or encourage any of the illegal
activity that may have been going on in the area, or place the plaintiff there.
Bateman v. Town of Columbia, #4:07-CV-169, 2009 U.S. Dist. Lexis 94379
(E.D.N.C.).
An unknown person attacked a man waiting for the
bus. He claimed that the county breached a duty to protect him against such
assaults by failing to post security guards or police officers near the bus
stop. The appeals court ruled that, under Florida state law, the county did not
owe the plaintiff a special duty of protection. The exercise of its police
powers was a duty owed to the public as a whole. It was immune from liability
for its decision not to post guards or officers at the bus stop, as it was
engaged in a discretionary function. Miami-Dade County v. Miller, #3D09-712,
2009 Fla. App. Lexis 14512 (Fla. App. 3rd Dist.).
A city and city emergency workers were sued by a
son for failing to stop him from viewing the scene of his father's suicide. A
federal appeals court pointed out that the plaintiff failed to identify which
particular right the defendants violated. The facts did not show that the defendants
created the danger of harm to him or had any affirmative duty to protect him
from any harm he might have suffered by viewing the aftermath of the suicide.
Howard v. City of Girard, #08-3586, 2009 U.S. App. Lexis 20895 (Unpub. 6th
Cir.).
A mother and the adoptive father sued a county
and prosecutors for alleged violations of their child's Fourteenth Amendment
equal protection rights by declining to prosecute the child's biological father
for child sexual assault. The right to assert an equal protection claim is
available to those subject to or threatened to discriminatory prosecution, the
appeals court stated, but has never been recognized as extending to crime
victims who claim to have been injured by the failure to prosecute an offender.
As the plaintiffs' claimed injury was from the failure to prosecute the
biological father, rather than based on failure to provide police protection,
the court upheld dismissal of the lawsuit. Parkhurst v. Tabor, #08-2610, 2009
U.S. App. Lexis 13774 (8th Cir.).
A shooting victim sought help from police. The
officers allegedly pushed him onto an asphalt street and administered first aid
there. At the time, he was shirtless and the temperature was in excess of 100
degrees. He allegedly told the officers that the asphalt was subjecting his
exposed skin to burning. Despite this, the officers allegedly continued to
restrain him against the asphalt for a number of minutes before another officer
was told to get a blanket to place under him. Second-degree burns allegedly
resulted. A federal appeals court upheld the denial of qualified immunity for
the officers, finding that their actions constituted a Fourth Amendment
seizure, in that they resisted the plaintiff's efforts to get up, and their
alleged actions were objectively unreasonable. It is clearly established, the
court stated, that it violates the Fourth Amendment to ignore, in an
unreasonable way, complaints of pain from a seized person. Howard v. Kansas
City Police Department; #08-2448, 2009 U.S. App. Lexis 14415 (8th Cir.).
A police officer allegedly arranged for a sex
offender to stay at a home a few days before he raped a child there. The
child's mother sued, claiming that the officer exposed the child to a danger
she would not otherwise have faced, in violation of her substantive due process
rights. At the time of the incident, the law was clearly established that an
officer who acted with deliberate indifference to affirmatively placing a
person in a danger that they otherwise would not have faced violates that
person's constitutional rights. The appeals court ruled, however, that the
question of whether the officer violated the child's rights when his actions
were not aimed at the child, but at a third person (here the sex offender) who
later harms the child had not previously been decided in the Ninth Circuit. The
officer was therefore granted qualified immunity, as he did not violate clearly
established law. Decoria v. County of Jefferson, #07-36066, 2009 U.S. App.
Lexis 10788 (Unpub. 9th Cir.).
No evidence was produced from which it could be
established that police officers acted with deliberate indifference and
unreasonably delayed the transporting of a shooting victim to the hospital,
resulting in his death. The undisputed facts showed that officers arriving on
the scene summoned an ambulance, and that the victim arrived at the hospital
fourteen minutes after the scene of the shooting was secured. There was no
evidence from which any delay could be attributed to the police. Zipoli v.
Caraballo, #3:06CV00388, 2009 U.S. Dist. Lexis 26033 (D. Conn.).
An employee working for a private company
providing data entry services for a city department of homeless services was
allegedly assaulted by a person she was registering for services as a
prospective client of a homeless shelter. She sued the city, but an
intermediate New York appeals court ruled that the city was entitled to summary
judgment because it had not assumed any special duty to protect the employee,
nor had the plaintiff shown that she had reasonably relied on any direct
promise to provide her with such protection. While security officers who were
usually outside the intake office were not present on the day of the incident,
there was no evidence that they were ever in the intake office with the
employee. Alava v. City of New York, No. 3807, 103339/04, 2008 N.Y. App. Div.
Lexis 6546 (A.D. 1st Dept.).
Alleged conduct of employees of the Oklahoma
Department of Human Services in instructing individuals to cease reporting
alleged abuse of a girl by her mother was "conscience shocking," if
true, and a father of a deceased daughter (who was not currently married to the
mother) stated a possible claim for violation of his daughter's due process
rights under the state-created danger theory for failing to adequately
investigate abuse allegations and discouraging reporting of additional such
incidents. The employees were not entitled to qualified immunity. At the time
of the daughter's death, she was in the physical custody of her mother, but in
the legal custody of the Oklahoma Department of Human Services. The Department
had previously removed the child from the mother's legal custody after
investigating the child's injuries, including bruises and a broken clavicle,
and concluding that they were non-accidental and the result of abuse. During
unsupervised visits with the mother, the child allegedly continued to suffer
injuries, and died while in the physical custody of the mother and her husband.
Briggs v. Johnson, No. 07-6037, 2008 U.S. App. Lexis 8816 (10th Cir.).
Minor failed to show that there was a mandatory
duty under California state law to protect her from violence by her father, who
stabbed her in the heart and lung. The father had previously been arrested for
screaming in an uncontrollable manner in the street and around his apartment,
and violently banging on a refrigerator. Following the arrest, a urine test
showed that he was under the influence of phencyclidine. Even though the
ensuing investigation by a social worker was "lousy" and failed to
make a proper determination about the risk of returning the minor to her
father, there was immunity from liability for the exercise of discretion under
these circumstances. Ortega v. Sacramento County Dept. of Health
& Human Services, No C054262, 2008 Cal. App. Lexis 470 (3rd Dist.).
A police dispatcher allegedly improperly used his
job facilities, including searching 911 databases, to find and kill his former
girlfriend and her boyfriend, relying on motor vehicle and license plate
registrations The dispatcher's supervisor allegedly became aware of the
dispatcher's improper searches and suspended him. During the suspension, two
co-workers allegedly assisted him in obtaining information without
authorization. In a lawsuit brought by the estate of the boyfriend,
"state-created danger" claims against the supervisor were rejected,
since he did not "act affirmatively" to increase the danger, but the
plaintiff sufficiently pled that the co-workers knew of the dispatcher's
threats to make the boyfriend "pay" for dating his ex-girlfriend, and
acted with deliberate indifference to the results of their acts in assisting
him, which constituted "conscience-shocking" behavior. The appeals
court further ruled, however, that the plaintiff should be allowed to amend her
claims against the supervisor to attempt to better establish them. Phillips v.
County of Allegheny, No. 06-2869, 2008 U.S. App. Lexis 2513 (3rd Cir.).
Police officers and city were not liable for
death of child transported to hospital in non-medically equipped emergency
patrol wagon, rather than ambulance, after he was shot in a drive-by shooting.
The city and officers had not created the danger to the child, and did not have
a special relationship with the child creating a special duty to protect him
from private acts of violence or to provide adequate first aid when such
violence took place. The officers' conduct also did not shock the conscience.
Sanders v. City of Philadelphia, No. 06-CV-359, 2007 U.S. Dist. Lexis 73846
(E.D. Pa.).
City was not liable for the shooting and killing
of a woman by a felon previously found by police officers to be in possession
of a firearm, but not arrested at the time. The decedent's mother and estate
claimed that the city's police department should be held liable because it had
a policy of not arresting felons found to illegally possess weapons, but
instead referring those cases to federal authorities for possible prosecution.
In failing to arrest the man who subsequently shot her daughter, the plaintiff
argued, the city and two of its officers created the danger that ended her
life. A federal trial court ruled that there could be no liability on the basis
of such an "omission claim." Mills v. City of Roanoke, Civil Action
No. 7:07CV00220, 2007 U.S. Dist. Lexis 76082 (W.D. Va.).
The estates of 4 of 12 students who died, and a number
of students injured, in the collapse of a bonfire stack at a Texas state
university, claimed that university officials were liable for their deaths and
injuries. In a prior appeal, overturning a dismissal of the plaintiffs' federal
civil rights claim, the U.S. Court of Appeals for the 5th Circuit found that if
the university officials acted with deliberate indifference to the risk of harm
the bonfire presented, there could be liability under a "state-created
danger" theory. Scanlan v. Texas A&M University, 343 F.3d 533
(5th Cir. 2003). On further appeal, the court upheld summary judgment
dismissing the plaintiff's claims on the basis that the defendants were not on
fair notice that liability could be based on that theory, since prior caselaw
from neither the Fifth Circuit nor the United States Supreme Court had adopted
it. The defendants were therefore entitled to qualified immunity. Breen v.
Texas A & M Univ., No. 04-40712, 2007 U.S. App. Lexis 9371 (5th Cir.).
Plaintiff failed to show a basis on which a
transit authority should be held liable for the murder of her son by an unknown
attacker at a train station. Briggs v. Washington Metro Area Transit Auth., No.
06-7037, 2007 U.S. App. Lexis 7058 (D.C. Cir.).
City, mayor, and police chief were not liable
under either federal or Washington state law for alleged failure to protect
members of crowd from assault by drunken individuals. The officers present at
the event did not enhance the danger to those attacked, and a state statute
cited did not require officers to arrest individuals for an assault but merely
authorized them to make such arrests. Further, there was nothing in the record
to show that the defendants knew, at the time of the incident, that the
plaintiffs were being harmed or threatened by the intoxicated persons. Johnson
v. City of Seattle, No. 05-35319, 2007 U.S. App. Lexis 1509 and 2007 U.S. App.
Lexis 1016 (9th Cir.).[N/R]
New York high court rules that officers who
allegedly failed to remove weapons from home when called to the scene of a
domestic dispute were not liable for estranged husband's action, after they
left, of shooting and injuring wife before killing himself with the same gun.
Without a "special relationship" imposing a duty to provide
protection, officers "cannot be expected to predict and prevent irrational
behavior." Halpin v. Town of Lancaster, No. 167 SSM 26, 2006 N.Y. Lexis
2551. [2006 LR Nov]
Wife could not pursue her claim under the Federal
Tort Claims Act against the U.S. government for the death of her husband,
allegedly murdered by FBI informants, since he failed to exhaust her available
administrative remedies before filing her lawsuit. Barrett v. U.S., No.
05-1905, 2006 U.S. App. Lexis 22745 (1st Cir.). [N/R]
Deputy sheriff was not liable for failing to
arrest woman's boyfriend at her residence the night before he beat her to
death. Even if he had suspected domestic abuse when summoned to the house,
arrest in those circumstances was discretionary rather than mandatory under
Kentucky state law, and, additionally, he observed no signs of violence or
abuse. Howard v. Bayes, No. 05-5076, 2006 U.S. App. Lexis 20378 (6th Cir.).
[2006 LR Oct]
Officers and county were not liable for
responding to 911 call concerning woman's drunken estranged husband's visit to
her sister's house, and failing to prevent him from shooting and killing his
wife, shooting his brother-in-law and sister-in-law, and then killing himself.
Nothing the officers did created or enhanced the danger. Tanner v. County of
Lenawee, No. 05-1107, 2006 U.S. App. Lexis 15566 (6th Cir.). ) [2006 LR Aug]
County was not liable for the rape and murder of
a girl by a convicted sex offender on the basis of the alleged failure to warn
the victim's parents of his presence in the community. The girl was not a
"foreseeable" victim of the offender, and the county had no special
relationship with the girl or her parents imposing a duty to warn them. Osborn
v. Mason County, No. 76101-9, 134 P.3d 197 (Wash. 2006). [N/R]
Federal government was not liable for murder of a
man randomly kidnapped by a criminal who went on a killing spree when the FBI
failed to apprehend him after he called them to attempt to surrender on bank
robbery charges. McCloskey v. Mueller, No. 05-2690, 446 F.3d 262 (1st Cir.
2006). [2006 LR Jul]
Paramedics who allegedly failed to give medical
care to a barroom shooting victim after placing him in an ambulance were
entitled to qualified immunity from liability. The shooting victim was not
"in custody" for purposes of imposing a constitutional due process
right to receive medical care, and the paramedics did not "create"
the danger to the victim. Additionally they did not "cut off" any
private attempts to render assistance to him, since there was no evidence that
any private rescue was attempted. Jackson v. Schultz, No. 04-2289, 429 F. 3d
586 (6th Cir. 2005). [N/R]
Illinois Supreme Court rules that police officers
who allegedly failed to assist domestic violence victim in response to 911 call
were not entitled to absolute immunity under state law on a claim that their
inaction was willful and wanton conduct which caused her death when her husband
subsequently shot her. More specific limited immunity provision of domestic
violence statute applied instead, with an exception for willful and wanton
conduct. Moore v. Green, No. 100029, 2006 Ill. Lexis 613. [2006 LR Jun]
County sheriff and other law enforcement
officials were not liable for failing to protect woman from being murdered by
her estranged husband based on their alleged failure to take adequate measures
in response to her report that he had assaulted and raped her two weeks before.
There was no indication that the decedent had justifiably relied on any
affirmative promises by the defendants to provide protection or take particular
action, and therefore no "special relationship" between the
defendants and the decedent sufficient to support the imposition of liability.
Kromer v. County of Onondaga, 809 N.Y.S.2d 723 (A.D. 4th Dept. 2006). [N/R]
County and officer were not liable for woman's
murder by her boyfriend, based on officer's dispatch to her residence following
911 calls, and decision to leave when he failed to hear any indications of a
dispute inside. These actions neither created nor increased the danger that the
woman would be killed, so there could be no liability under a
"state-created danger" theory. May v. Franklin County Comm'rs, No.
05-3188, 2006 U.S. App. Lexis 3528 (6th Cir.). [2006 LR Apr]
Police officers reporting to the scene of a
domestic dispute did not have an affirmative duty to remove weapons from the
home, and therefore could not be liable for the husband's subsequent action of
shooting his wife before killing himself. Halpin v. Town of Lancaster, 806
N.Y.S.2d 810 (A.D. 4th Dept. 2005). [N/R] FBI and
its personnel were not liable for death of murder victim killed after
self-proclaimed bank robber called FBI offering to turn himself in, and
allegedly killed the victim the following day after his call was purportedly
ignored. Liability was barred under the discretionary function exception to the
Federal Tort
Act (FTCA), 28 U.S.C. Sec. 2680(a), as the decision as to how to respond to the
phone call was discretionary. McCloskey v. Mueller, No. CIV.A.04-CV-11015, 385
F. Supp. 2d 74 (D. Mass. 2005). [N/R]
City, mayor, and police chief were not liable for
injuries suffered by crowd members assaulted by other persons during a
neighborhood celebration which became disorderly. The police officers present,
in allegedly failing to intervene, did not put injured crowd members in harm's
way or compel crowd members to interact in any specific way. Johnson v. City of
Seattle, No. C03-24181, 385 F. Supp. 2d 1091 (W.D. Wash. 2005). [N/R]
City was not liable for shooting of visitor to
city housing project by tenant whose residency there was a violation of the
housing authority's rules because he had felony convictions. The city and
housing authority were entitled to governmental immunity under Pennsylvania
state law, and an exception to such immunity for the management of real estate
did not apply, as there was no showing that the shooting resulted from a defect
in the property itself. Williams v. Philadelphia Housing Authority, 873 A.2d 81
(Pa. Cmwlth. 2005). [N/R]
Woman who was assaulted and raped in her
apartment in a federally subsidized public housing project failed to show that
housing commission violated her federal civil rights by failing to protect her.
Most of the "acts" she claimed were committed by the Defendant
commission, including the alleged failure to maintain control over master keys
and resident lists, were more in the nature of omissions or failures to act,
and there was no showing that the defendant acted with deliberate indifference
to a serious risk of harm as required for federal civil rights liability.
Federal appeals court upholds this conclusion despite the fact that her
assailant allegedly entered her apartment through the use of a master key, and
through a door on which the deadbolt lock had been removed as required by a
federal government Housing and Urban Development (HUD) directive. Bullard v.
Inkster Housing and Re-Development Commission, No. 04-1051, 126 Fed. Appx. 718
(6th Cir. 2005). [N/R]
Deputy sheriff was not liable for failing to
arrest man allegedly suspected of fighting with his girlfriend, who
subsequently murdered her, since the duties imposed on him under a Kentucky
domestic violence statute were discretionary. Plaintiffs also failed to show
that the deputy had "created" or enhanced the danger to the
girlfriend for purposes of the "state-created-danger" doctrine.
Howard v. Bayes, No. CIV.A. 7:02-204, 378 F. Supp. 2d 753 (E.D. Ky. 2005). [N/R]
Officer was not entitled to qualified immunity in
lawsuit claiming that he enhanced the danger to a woman and her husband through
his actions, resulting in a 13-year-old neighbor, accused of molesting their
daughter, breaking into their home and shooting them while they slept, killing
the husband and injuring the wife. Appeals court finds that his allegedly false
assurances that he would tell the woman before he spoke to the neighbor's
family, and that police would patrol the neighborhood created a false sense of
security, resulting in the failure to take additional precautions. Kennedy v.
City of Ridgefield, No. 03-35333, 2005 U.S. App. Lexis 12123 (9th Cir.). [2005
LR Aug]
U.S. Supreme Court rejects claim that woman
granted a restraining order against her estranged husband had a
constitutionally protected due process property interest in having police
enforce it. Plaintiff alleged that the failure of police to do so resulted in
the murder of her three minor daughters by her husband while violating the
order. Town of Castle Rock v. Gonzales, No. 04-278, 2005 U.S. Lexis 5214. [2005
LR Aug]
County and deputy sheriff to whom a deputy
surrendered his weapon under the terms of an order of protection obtained by
his wife were not liable for his subsequent killing of his wife with another
weapon he allegedly stole from a weapons locker. The Defendants did not have
any special relationship with the wife imposing a duty to protect her under New
York state law. Farley v. County of Erie, 791 N.Y.S.2d 251 (A.D. 4th Dept. 2005).
[N/R]
Police officers' failure to arrest a parolee
after he surrendered to them at a police station under outstanding bench
warrant did not make them liable for his murder of one woman and rape of
another six days later. The officers initially failed to find a record of the
warrant, and, while the parolee had previously pled guilty to indecent assault,
there was nothing to put the officers on notice that he was capable of
committing the kind of "violent, heinous" crimes he subsequently committed,
or the identity of his possible victims. Nothing showed that the officers'
conduct created the danger to the crime victims. Liedy v. Borough of Glenolden,
No. 03-3539, 117 Fed. Appx. 176 (3rd Cir. 2004). [N/R]
County could not be held liable for death of
murder victim allegedly killed by detainee who removed an electronic home
monitoring restraint and left home detention before committing the crime. The
county and its agencies had no "special duty" to protect the victim
from the crime, and an exception to statutory immunity for injury and death
that occurs within the grounds of buildings used in performance of public
functions did not apply. Kennerly v. Montgomery Cty. Bd. of Commissioners, 814
N.E.2d 1252 (Ohio App. 2d Dist. 2004). [N/R]
Victim of alleged rape by four university
football team members could not pursue claims against law enforcement for
violation of her civil rights on the basis of a purported failure to perform a
proper investigation. Jennings v. City of Stillwater, No. 03-6206, 2004 U.S.
App. Lexis 19274 (10th Cir. September 15, 2004) [2004 LR Nov]
Police officer could not be held liable for
failure to protect the plaintiff under a theory of
"state-created-danger" when the plaintiff was "unknown" to
the officer at the time of the incident in question. Under the
"state-created-danger" theory of liability for failure to protect,
the appeals court stated, liability exists "only if the state actor is
aware of an immediate danger facing a known victim." Lester v. City of
College Station, No. 03-20906, 103 Fed. Appx. 814 (5th Cir. 2004). [N/R]
Police officers and city were not liable for
death of woman accidentally shot by her husband as he also shot a man
attempting to sexually assault her in their home. Officers' one-hour delay in
entering the home after the shooting was not deliberately indifferent to the
injured woman's need for medical attention, since they could reasonably believe
that entering the home would be dangerous, knowing that the man who fired the
shots was inside. Estate of Strumph v. Ventura, 849 A2d 105 N.J. Super. A.D.
2004). [2004 LR Sep]
Federal appeals court, in case where estranged
husband took and murdered his three minor daughters, in violation of domestic
protection order, rules that such an order, when enforcement is required by a
state statute, creates a property interest protected by the due process clause
of the Fourteenth Amendment. Claims against city for failing to enforce order
are reinstated, but individual officers were entitled to qualified immunity.
Gonzales v. Castle Rock, #01-1053, 366 F.3d 1093 (10th Cir. en banc, 2004).
[2004 LR Sep]
Man beaten by four "hoodlums" in
parking lot of city park while distributing Hare Krishna literature during a
concert in city owned facility could not recover damages from either city or
concert producer. Plaintiff's injuries were not the "foreseeable
result" of any problem with concert security. Maheshwari v. City of New
York, #54, 2004 N.Y. LEXIS 978. [2004 LR Jun]
City was not liable, under Florida law, for man's
shooting of his wife, despite alleged negligent failure of officer to follow-up
on promise to "talk" to the shooter about his alleged threat to her.
Officer's failure to act was not the cause of the injuries, and no special relationship
existed which would waive governmental immunity for the officer's conduct. City
of Ocala v. Graham, No.5D02-3208, 864 So. 2d 473 (Fla. App. Dist. 5 2004).
[2004 LR May]
City and police officials had no duty to protect
apartment complex security guard against alleged murder by a man he used pepper
spray against while on the job, despite an alleged threat to kill the security
guard when the guard had him arrested. Dependents of Reid v. City of Canton,
No. 2002-CA-00721-COA, 858 So.2d 163 (Miss. App. 2003). [2004 LR Mar]
Police officers who failed to arrest a sex
offender after he came to a police station to surrender on a bench warrant for
parole violation for failing to attend a mandated sex offender treatment class
could not be held liable for his subsequent actions of murdering his landlady
and raping her thirteen-year-old daughter. While police inaction may have
constituted "conscience shocking deliberate indifference," the police
did not create or increase the danger posed by the parolee, and his particular
victims were not more foreseeable victims than the female public at large.
Leidy v. Borough of Glenolden, 277 F. Supp. 2d 547 (E.D. Pa. 2003). [N/R]
Nebraska Supreme Court overturns $300,000 award
to woman assaulted in her home by a former boyfriend while he was on probation.
No special relationship existed between crime victim and the state which gave
rise to any specific duty to protect her from her former boyfriend. Bartunek v.
State, No. S-02-710, 666 N.W.2d 435 (Neb. 2003). [N/R]
FBI agent and United States government were not
liable for the death of a man allegedly killed on the orders of reputed
organized crime leaders who were allegedly government informants. Alleged
conspiracy by FBI agents did not cause victim's death and was not aimed at
causing his death, but rather to preserve the organized crime leaders in
question as informants. Estate of Halloran v. United States, 268 F. Supp. 2d 91
(D. Mass. 2003). [2003 LR Nov]
Police and other city employees did not
"create" the danger to storeowner in a high-crime area of being shot
when compelled to stay late at the store because of the insistence of the
defendants on conducting an inspecting after normal store hours. No liability
for refusal to provide an escort of storeowner and employees to their cars
after inspection ended, or for subsequent shooting and killing of storeowner
and shooting of store employee by unknown persons. Gonzales v. City of Camden,
815 A.2d 489 (N.J. Super. A.D. 2003). [2003 LR Oct]
Update: appeals court upholds ruling that
officer's failure to immediately report his reasonable suspicion that a female
middle school teacher was sexually abusing one of her female students did not
subject him or the city to liability for violation of the student's due process
rights. Windle v. City of Marion, Indiana, 321 F.3d 658 (7th Cir. 2003). [2003
LR Oct]
While there was no general duty to provide police
protection or investigate a particular crime, an African-American man stated a
claim for violation of the right to equal protection of the law by asserting
that officers failed to conduct any substantial investigation of shots being
fired at his car solely on the basis of his race. Roman v. City of Reading, 257
F. Supp. 2d 799 (E.D. Pa. 2003). [2003 LR Sep]
Officer may have had a duty to protect a woman
who called 911 when she was restrained in her apartment by an attacker, but his
decision, in investigating the call, to knock, look in a window, and leave when
he received no response was not unreasonable. May v. Franklin County Bd. of
Com'rs, No. 01-4000, 59 Fed. Appx. 786 (6th Cir. 2003). [2003 LR Jul]
Police officer and police legal advisor did not
violate the due process rights of a 19-year-old mentally disabled girl by
returning her, upon her request, to the home of a 39-year-old man she met over
the Internet who she described as her boyfriend. They did not know that he had
allegedly repeatedly raped her or that he would allegedly do so again after she
was returned to his home, and they had no authority to detain her. Bukowski v.
City of Akron, No. 01-4248, 326 F.3d 702 (6th Cir. 2003). [2003 LR Jul]
Police department was not liable for allegedly
failing to take action to prevent a workplace shooting after receiving a phone
call from a workplace manager reporting a threat of violence to employees. City
had no constitutional duty to investigate any particular threat of violence
made by private persons. Hernandez v. City of Goshen, #02-3268, 324 F.3d 535
(7th Cir. 2003). [2003 LR Jul]
Police officers who declined to enter an
apartment when responding to a neighbor's 911 call reporting that a woman
inside had screamed were not "deliberately indifferent" to the rights
of the woman resident who was raped and murdered. The officers heard nothing
from inside during their investigation and made a good faith decision not to
attempt to enter. Schieber v. City of Philadelphia, No. 01-2312, 320 F.3d 409
(3rd Cir. 2003). [2003 LR Jun]
Nebraska Supreme Court rejects argument by mother
of cross-dressing woman that $98,223 in damages for failure of county sheriff
to protect her daughter against murder by two men she accused of rape was
inadequate. Court notes that mother's relationship with her daughter was
"strained." Brandon v. County of Richardson, #S-01-1158, 653 N.W.2d
829 (Neb. 2002). [2003 LR Apr]
Police officers were not individually liable and
were entitled to qualified immunity for allegedly increasing a shooting
victim's risk of death by transporting him to a hospital in a police vehicle
rather than waiting for an ambulance. Officers did not create the danger to the
shooting victim or act with deliberate indifference for his safety. City was
also not responsible, in the absence of a showing that it had failed to
properly train the officers or had a policy which deprived the shooting victim
of his rights. Hansberry v. City of Philadelphia, 232 F. Supp. 2d 404 (E.D. Pa.
2002). [2003 LR Apr]
Oregon resident assaulted in front of her
house could pursue lawsuit against city under state law for negligence based on
police detective's alleged action of instructing a neighbor not to warn other
residents about a robber thought to be operating in the area. Sande v. City of
Portland, 9709-06947, A107724, 59 P.3d 595 (Or. App. 2002). [2003 LR Mar]
Nightclub patron shot in its parking lot could
pursue his lawsuit alleging that town's negligent inspection and licensing of
club was a cause of his injury when there purportedly had been numerous prior
police reports of violence and shootings in the parking lot of the building
that housed the club, as well as complaints by neighbors about violence,
disturbances, and public drinking there. Adams v. Traina, No. 36,306-CA, 830
So. 2d 526 (La. App. 2d Cir. 2002). [N/R]
Civil rights claim could be pursued on behalf of child
allegedly abused in foster care by private person based on county official's
alleged inadequate investigation into claims of mistreatment. Serena H. v.
Kovarie, 209 F. Supp. 2d 453 (E.D. Pa. 2002). [N/R]
California Supreme Court rules that county and
sheriff's department were not liable for negligence for failing to protect a
woman from being fatally shot by her ex-husband at a courthouse. The defendants
did not increase the risk of harm to the decedent, and the posting of signs "warning"
persons of the alleged lack of security at the courthouse would have
discouraged litigants from resorting to the courts. Those entering courthouse
were, in any event, aware that persons entering were not screened for weapons.
Zelig v. County of Los Angeles, #S081791, 119 Cal. Rptr. 2d 709, 45 P.3d 1171
(Cal. 2002). [2002 LR Aug]
Police officer's failure to immediately report
his reasonable suspicion that a female middle school teacher was sexually
abusing one of her female students did not subject him or the city liable for
violation of the student's due process rights. Doe v. City of Marion, 196 F.
Supp. 2d 750 (N.D. Ind. 2002). [2002 LR Aug]
Jury awards $35.5 million against town for
failure to destroy assault rifle turned into department; weapon was instead
issued to officer who took it home and kept it in gun cabinet which his son had
access to; son used weapon to kill two Border patrol agents and injury a deputy
sheriff. Salinas v. City of Harlingen, No. B-98-162, U.S. District Court, (S.D.
Texas), reported in The National Law Journal, p. A6 (March 4, 2002). [2002
LR Apr]
"Public duty" doctrine does not bar, in
Michigan, lawsuit by kidnap/rape victim against police dispatcher for allegedly
failing to disclose to the police the location of her assailant following
conversations with the assailant's mother, who was her friend. Beaudre v.
Henderson, No. 114261, 631 N.W.2d 308 (Mich. 2001). [2002 LR Jan]
347:171 Man shot by confidential informant with
gun allegedly borrowed from police officer could sue officer on
"state-created-danger" theory; officer was not entitled to qualified
immunity; city was not liable, however, as no policy or customer of inadequate
storage of evidence (including the gun) was shown, and no policy of inadequate
training. McClendon v. City of Columbia, No. 00-60256, 258 F.3d 432 (5th Cir.
2001).
344:124 Deputy who shot a hostage during a
shootout with store armed robbers did not violate hostage's Fourth Amendment or
Fourteenth Amendment rights. Lee v. Williams, 138 F. Supp. 2d 748 (E.D. Va.
2001).
347:172 Victims of $120,000 cash robbery outside
of nail salon did not succeed in establishing an "equal protection"
claim based on their assertion that officers inadequately investigated the
crime against them because they were not members of a "good old boy
network" in their Texas city. Harvey v. City of Conroe, Texas, 148 F.
Supp. 2d 783 (S.D. Tex. 2000).
343:107 Alleged failure to protect female child
against murder by her stepfather when officials knew that he had threatened to
kill her if she reported his sexual abuse of her stated a claim for violation
of her due process rights, when she allegedly been told that protection would
be provided. Sophapmysay v. City of Sergeant Bluff, 126 F. Supp. 2d 1180 (N.D.
Iowa 2000).
342:90 County sheriff had a duty to protect
cross- dressing rape victim against threats by her assailants that they would
kill her if she reported the crime; sheriff's "demeaning" and
"accusatory" statements to victim during interview were
"outrageous" as a matter of law; Nebraska Supreme Court rules that
mother of murdered rape victim must be awarded full $80,000 for decedent's pain
and suffering, as well as some amount for loss of companionship and orders
further proceedings on emotional distress claim based on sheriff's conduct.
Brandon v. County of Richardson, #S-00-022, 624 N.W.2d 604 (Neb. 2001).
341:76 UPDATE: $26 million award against city for
failure to protect woman against alleged murder plot by killers hired by her
boyfriend overturned; no city policy alleged increased the danger to her, at
most it left her in the same danger she was already in. Piotrowski v. City of
Houston, No. 98-21032, 237 F.3d 567 (5th Cir. 2001), rehearing & rehearing
en banc denied, 251 F.3d 729 (5th Cir. 2001).
338:27 Officers and city could not be held liable
for failure to make forcible entry into woman's apartment following neighbors'
911 call reporting screaming and dog barking coming from inside in the early
morning; no liability
for murder of woman, allegedly after officers
left, when apartment was quiet when officers arrived. White v. City of
Philadelphia, 118 F. Supp. 2d 564 (E.D. Pa. 2000).
337:5 Family of woman killed by her estranged
husband could assert a claim for violation of equal protection based on alleged
failure to provide police protection because of gender, regardless of whether
they could show that this failure helped cause the murder or indeed caused any
actual harm at all; nominal damages could still be awarded if a constitutional
violation without actual harm was proven. Macias, Estate of, v. Ihde,
#99-15662, 219 F.3d 1018 (9th Cir. 2000).
333:138 Montana Supreme Court rules that police
officers who transported a suicidal girl to the hospital, and allowed her
sister to ride along, entered into a special relationship of custody or control
over the sister, imposing a duty to adequately supervise her; court reinstates
lawsuit against the city for failure to protect hospital nurse from assault by
the sister. LaTray v. City of Havre, No. 99-286, 999 P.2d 1010 (Mont. 2000).
326:26 Detective exercised his discretion by
deciding not to pursue investigation of alleged domestic violence until the
following morning; city was not liable for facially neutral domestic violence
policy when it could not be shown that woman, shot and killed by her
ex-husband, had been treated differently than male victims of domestic
violence. Williams v. City of Montgomery, Alabama, 48 F.Supp. 2d 1317 (M.D.
Ala. 1999).
323:173 California appeals court rules that
governmental immunity did not apply to failure to provide metal detectors in
courthouse; surviving family of woman killed by her ex-husband in courthouse
lobby could possibly sue county for failure to protect her against foreseeable
risk of violence. Zelig v. County of Los Angeles, 86 Cal.Rptr.2d 693 (Cal. App.
1999).
323:172 Ex-officer not liable for failure to stop
and investigate disabled truck from which female motorist was abducted and
murdered or for later allegedly lying about when he first encountered the
vehicle; link between his alleged misconduct and any loss that motorist's
parents suffered was "too tenuous." Webb v. Haas, 728 A.2d 1261 (Me.
1999).
321:142 Police officers who failed to make
arrests when summoned to a fight at drinking party were not liable when ousted
party-goer subsequently returned to party with a gun and killed a man; officers
did nothing which created or enhanced the danger to the decedent. Burke, Estate
of, v. Mahanoy City, 40 F.Supp. 2d 274 (E.D. Pa. 1999).
301:13 Alabama sheriff and sheriff's deputy were
both entitled to sovereign immunity from liability under state law in lawsuit
brought by woman shot by fugitive that deputy failed to arrest when he found
him at home after receiving a report he had shot and killed an officer in
another state. Purvis, Ex parte, 689 So.2d 794 (Ala. 1997).
304:59 Federal appeals court rules that
negligence in failing to act against alleged racial conspiracy involving
rioting against Korean stores following Rodney King verdict could be basis for
federal civil rights lawsuit against city. Park v. City of Atlanta, 120 F.3d
1157 (11th Cir. 1997).
305:77 New York City gives $200,000 settlement to
Hasidic man and his 12-year-old son in lawsuit over alleged failure to protect
them from assault during racial disturbance. Bitton v. New York City, U.S.
Dist. Ct., N.Y., N.Y., reported in The New York Times, National Edition, p. A18
(January 26, 1998).
305:78 Federal jury awards woman $22.3 million
against city for alleged failure to investigate tip about her former
boyfriend's alleged attempt to hire men to kill her; suit claimed that officers
also interfered with her possible protection, resulting in her being shot four
times and paralyzed. Piotrowski v. City of Houston, H-95-4046 (S.D. Tex., Jan.
20, 1998), reported in The Natl. Law Jour. p. A11 (Feb. 23, 1998).
306:92 City to pay $1.1 million in damages and
$250,000 in attorneys' fee in federal civil rights lawsuit claiming inadequate
police protection of Hasidic Jews, including murdered Australian rabbinical
student, during four days of violence that followed death of 7 year-old black
male struck and killed by car driven by Hasidic Jew. Rosenbaum v. City of New
York, U.S. Dist. Ct., Brooklyn N.Y., reported in The New York Times, p. 1
(April 3, 1998).
307:109 Woman who dressed like a male raped and
later murdered, allegedly by those who raped her; sheriff was not liable to
decedent's estate for failure to immediately arrest her alleged attackers when
she expressed no concern about imminent peril. Brandon v. Lotter, 976 F.Supp.
872 (D. Neb. 1997).
308:124 County and sheriff not liable, under
Tennessee state law, for deaths of two individuals murdered by man for whom
there was an outstanding arrest warrant; no liability for failure to make the
arrest as executing arrest warrants was a duty owed to the general public
rather than to any individual. Hurd v. Woolfork, 959 S.W.2d 578 (Tenn. App.
1997).
308:125 Police chief's alleged failure to
investigate minor females' charges that their father sexually abused them did
not lead to federal civil rights liability, in absence of proof that he took
this action with intent to discriminate against them as females, minors, or
victims of domestic abuse. Hayden v. Grayson, 134 F.3d 449 (1st Cir. 1998).
289:13 City was not liable for injuries retail
store employee suffered during assault by robbers Nicolosi v. City of New York,
637 N.Y.S.2d 792 (A.D. 1996).
290:28 Michigan Supreme Court rules that police
officer who arrived on scene of domestic disturbance in response to neighbors'
911 phone calls, but allegedly did not attempt to contact woman who neighbors
stated had been attacked by her husband, was not liable for woman's death three
hours later; no special relationship, imposing a duty of protection, existed
between decedent and officer, as there was no direct contact between them White
v. Beasley, 552 NW2d 1 (Mich 1996).
291:45 New Mexico Supreme Court rules that both
rape victim and her parents (who heard attack occurring because their daughter
was talking to them on the phone when the assault occurred). could sue officers
for alleged negligent failure to properly forward paperwork to prosecutor's
office, resulting in assailant's release from detention on previous rape
charge, allowing him to be out of custody and attack her Weinstein v. City of
Santa Fe, 916 P.2d 1313 (NM 1996).
293:77 Despite assurances that downtown area of
city would be "secure" following Rodney King verdict, city had no
special duty to provide protection to businesses or persons of Korean
shopkeepers, and, in fact, did provide some protection, rescuing them from mob
after delay; decision to move officers away was not based on nationality and so
did not violate equal protection Park v. City of Atlanta, 938 F.Supp. 836
(N.D.Ga 1996).
295:108 Probation officer's failure to make home
visits with probationer Jeffrey Dahmer did not constitute "reckless"
conduct which would make her liable for one of Dahmer's subsequent murders
Weinberger v. State of Wisconsin, 105 F.3d 1182 (7th Cir. 1997).
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