AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel
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False Arrest/Imprisonment: Unlawful Detention
Monthly Law Journal
Article: The Need
for Prompt Probable Cause Hearings, 2012 (8) AELE Mo. L. J. 101.
Monthly Law Journal Article: Civil Liability for Detention for Mental Health Evaluation or Commitment, 2017 (1) AELE Mo. L. J. 101.
a high-risk traffic stop and detention of a male motorist based on an incident
report from several hours earlier that a young man had displayed a handgun
to a store clerk. Since state law permits individuals who are at least
18 years old to open carry handguns in public and the city does not restrict
an individual's right to open carry except in certain locations, the incident
report was not sufficient to create reasonable suspicion that the young
man described had committed or was about to commit a crime. The officers
could not have objectively comcluded that the young man could not legally
possess a firearm. Further, no objectively reasonable officer would have
mistaken the plaintiff, a 58-year-old bald man who was a double amputee,
for the young man with hair described in the incident report. The trial
court therefore erred in granting three officers involved in the stop qualified
immunity. Duffie v. City of Lincoln, #15-2431, 2016 U.S. App. Lexis 15418
A man was detained and arrested as he sat in his car in a school parking lot as he waited for his wife, who was employed there, because he refused to produce identification. While the officer may not have had reasonable suspicion to detain him, a federal appeals court found that the arresting officer was entitled to qualified immunity. The detention was not objectively unreasonable under clearly established law. The officer was not put on notice that detaining a person for a failure to provide identification on school property is definitively unlawful. While there were prior U.S. Supreme Court cases which held that police may not detain an individual solely for refusing to provide identification, those cases did not deal with incidents occurring on school property. Gonzalez v. Huerta, #15-20212., 2016 U.S. App. Lexis 11530 (5th Cir.).
When a man reported to police that there was some problem with his cable television reception, he rwas trying to report that he thought a neighbor had wired in to his service to steal cable television, but the officers, believing that he was saying someone was "controlling his television took him for a mental health evaluation and after the evaluation, he was detained for six days as a possible threats to others. The plaintiff stated a viable claim that the officers lacked probable cause to initially detain him. While he did quote from an incident report prepared by the officers afterwards, his claim was based not on hearsay contained in the report, but on his statement that he had no mental illness and that the officers lacked probable cause to detain him based on the alleged facts of the incident. Claims against the mental health evaluator and her employee were properly dismissed as their screening report did provide a basis for further detention. . Goines v. Valley Cmty. Servs. Bd., #15-1589, 2016 U.S. App. Lexis 8512 (4th Cir.).
A couple were out walking with their daughter, grandson, and a dog. The man carried a cell phone, holstered on his hip, next to a semiautomatic handgun. a motorcyclist passing by stopped to complain about the visible weapon, and after a heated argument, called 911. The dispatcher stated that the weapon was legal in Ohio with a concealed carry weapon permit. An officer was dispatched, and took possession of the man's weapon. The officer threatened to arrest the man for inducing panic and placed him in handcuffs. After the officer discovered that the man had a carry permit for the weapon, he released him while citing him for failure to disclose personal information, a charge later dropped. The man had produced his driver's license, but told the officer to look up his carry permit. While the trial court rejected First and Second Amendment charges against the officer on summary judgment, it permitted Fourth Amendment and state law claims to go forward. A federal appeals court upheld this result. It noted that the officer had the right to approach the plaintiff and ask him questions, but that Ohio law permitted the man, with his permit, to do exactly what he was doing, openly carry his firearm. The officer had no basis for uncertainty abut the law, and had no evidence that the man was dangerous. All that he saw was that the man was armed, and legally so. There was no basis for reasonable suspicion of inducing panic or that the man needed to be disarmed, and allowing stops in these circumstances would effectively eliminate Fourth Amendment protection for legally armed persons. The court noted that "Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers." While the officer also claimed that the man made a "furtive motion" towards his weapon before being disarmed, that was disputed and was an issue of fact for a jury. A second officer, who did not arrive on the scene until after the plaintiff was already handcuffed and placed in the back of the first officer's car, however, was entitled to qualified immunity, as he had not detained, disarmed, or handcuffed the plaintiff. Northrup v. City of Toledo Police Dep't., #14-4050, 2015 U.S. App. Lexis 7868, 2015 Fed. App. 0092P (6th Cir.).
A woman claimed that a state trooper started harassing her in 2007, tailgating her in an off-duty vehicle, parking behind her, and questioning her about her driving. When the officer and the female motorist's adult son exchanged heated words, the officer at first allegedly stated that the motorist would receive an additional ticket because of her son's statements and then left without issuing any tickets when the son stated that he would complain to the officer's supervisor. After the motorist complained abut this, the officer, hours later, arrived at her home and delivered three tickets. After her son mentioned the alleged harassment at a restaurant, the trooper, accompanied by a fellow officer, again returned to the home, resulting in a confrontation with the woman's son-in-law. A federal appeals court ruled that a First Amendment retaliatory prosecution claim was time barred as it was filed two years after the tickets were delivered to the woman, which was the date the claim accrued, rather than the later date of the trial when she was convicted on the tickets. The trial court erred, however, in dismissing a Fourth Amendment constructive seizure complaint against the trooper on the basis that the plaintiff failed to specifically identify in that claim that she was proceeding under 42 U.S.C. Sec. 1983 rather than merely under the Fourth Amendment. Smith v. Campbell, #14-1468, 782 F.3d 93 (2nd Cir. 2015).
A high school student was detained for 23 days while police investigated a schoolyard fight that caused the death of another student. A video of the fight showed a male student who punched the victim as he tried to stand up, and the plaintiff was identified as one of two assailants by an officer assigned to the school, by another student, and by two school staff members, who all viewed the video. Charges initially made against the plaintiff were ultimately dropped when it was established that he was not involved in the incident. A federal appeals court upheld summary judgment for the defendant officers, finding that they had probable cause to make the arrest on the basis of the identifications by those who viewed the video, so there was no false arrest. As to the length of the detention, it was not excessive or unreasonable, as there was no indication that any of the defendants imposed a deelay for improper motives such as punishing the plaintiff or "drumming up" evidence merely to justify his arrest. Bailey v. City of Chicago, #13-3670, 779 F.3d 689 (7th Cir. 2015).
An officer approached a car he was parked at night in a rural unlit area. Two men holding shotguns were encountered, and he pointed his service revolver at them. An unlawful seizure claim filed by one of the men failed. The officer had reasonable suspicion to stop him for investigatory purposes when he observed him carrying a shotgun with a second armed man in the area, particularly as the plaintiff failed to immediately comply with the request to place his weapon on the ground. Under the circumstances, the officer was justified in temporarily unholstering his weapon and pointing it at both men while assessing the situation and gaining control. The men outnumbered the officer and he did not know then that they were there for purposes of hunting. Stiegel v. Collins, #14-1631, 2014 U.S. App. Lexis 23116 (Unpub. 3rd Cir.).
SWAT officers armed with a search warrant seeking illegal gaming equipment raided a Halloween party with hundreds in attendance. Some partygoers were detained for up to 14 hours before they were questioned and let go. A number of them said that an investigator violated their rights against unlawful seizure by prolonging their detention beyond the conclusion of the warranted search. A directed verdict for the defendant was reversed because, under the facts alleged, a reasonable jury could conclude that the search had ended before the questioning began, and the detentions went far beyond a "brief" Terry investigatory search, lasting up to 14 hours and as much as 7 hours beyond the defendant's estimation of when the search ended. Guillory v. Hill, #G047446, 2015 Cal. App. Lexis 38.
A woman was detained by police in her employers home while they were investigating her alleged misconduct, and they ordered her to leave without taking with her a $10,000 check written to her by her employer. A federal appeals court found no basis for liability on the part of the officers. They had reasonable grounds for suspecting that she had improperly obtained the check since she had only worked for the employer for 88 hours providing him home care. Forcing her to leave without the check was not seizure of her. Her employer had severe cognitive impairments as a side effect of his Parkinson's disease and officers would have been acting irresponsibly if they allowed her to leave with the check, given their suspicions. Hamilton v. Village of Oak Lawn, #12-3174, 2013 U.S. App. Lexis 23481 (7th Cir.).
A man turned himself in after a warrant was issued for his arrest for misdemeanor domestic assault. The affidavit for the warrant said that the arrest would be without bail. The arrestee's request to post bail or to speak to a judge was denied. The sheriff incorrectly told him that he had to be held for at least 12 hours because of the charge of domestic assault. That requirement actually only applied when there was a specific finding that the arrestee was a threat to the alleged victim, and no such finding was made. The next morning, a judge set bail and the defendant was released. Charges were dropped ten months later. The county admitted to having a policy of holding all domestic violence arrestees for at least 12 hours regardless of circumstances. A federal appeals court upheld summary judgment on a lawsuit claiming that the arrestee had been denied procedural due process and the Eighth Amendment right not to be held on excessive bail. Regardless of any provisions in state law, the Eighth Amendment relates to the amount of bail, not its timing and there is no constitutional right to "speedy bail." The Eighth Amendment does not require a particularized examination before bail is set, and the use of a bond schedule to set the amount did not mean that it was excessive. Since no constitutional liberty interest was involved, the due process claim also failed. Fields v. Henry County., #11-6352, 701 F.3d 180 (6th Circuit, 2012).
Detainees in the custody of the county sheriff on Saturday night were not brought before a judge within the normal 48-hour deadline for a probable cause determination because the county judges do not work on weekends, and the chief judge took off early that Monday. The arresting sheriff was not available on Monday morning and no other judge was available Monday afternoon. An appeals court ruled that no individual defendant was responsible for the delay, that the arresting officer could not have known that he had to make alternate arrangements, since the unavailability of any judge Monday afternoon was unanticipated. Additionally, no unconstitutional policy caused the delay, so the county could not be liable. Jones v. Lowndes County, #10–60941, 2012 U.S. App. Lexis 7805 (5th Cir.).
A prisoner now serving a life sentence after a murder conviction sued a sheriff and other defendants for failing to meet the 48-hour deadline after his arrest for a probable cause hearing. The federal appeals court ruled that the delay was excusable and caused by the need to determine where the murder occurred so that officers could decide which court the arrestee should be brought before for jurisdictional purposes. As soon as that was determined, the defendants promptly attempted to arrange a hearing before the appropriate magistrate. The subsequent overnight delay was because of the magistrate's unavailability. On these facts, the jurors properly found that the delays were justified. Brown v. Sudduth, #09-60037, 675 F.3d 472 (Unpub. 5th Cir. 2012).
A New York man was convicted of and incarcerated for over nine years for a murder he did not commit, with the primary evidence against him being his confession containing non-public details about the crime. After his exoneration, he sought damages against the state under an "unjust conviction and imprisonment" statute. The plaintiff claimed that he has a low IQ, dropped out of school in eighth grade, and was suffering from AIDS-related dementia at the time of his interrogation. The officers interrogating him were aware of these facts, and allegedly coerced him into making a false confession. DNA evidence subsequently implicated another man in the murder, who then confessed to the crime. The highest court in New York ruled that the plaintiff's prior false confession did not bar his claim for damages on the basis that he caused or brought about his own conviction. Warney v. State of New York, #35, 2011 N.Y. Lexis 502 (NY).
A man sued a city and one of its police officers after he was placed in handcuffs at his home by the officer, angry that he refused to reveal the whereabouts of a friend suspected of sexual assault. When he then agreed to show the officer where his friend lived, he was allegedly kept in handcuffs in the back of a police vehicle for six hours outside his friend's house. No charges were brought against either man. The lawsuit claimed the city was liable for these actions because it maintained an official or de facto policy of illegally arresting and detaining persons who were not suspected of crimes and it had failed to train and supervise the officer properly. In a trial on claims against the officer only, jury awarded $50,384 in compensatory damages and $150,000 in punitive damages. A federal appeals court held that the plaintiff could not proceed with claims against the city, as any recovery against it would be duplicative of his recovery against the officer, and the city was responsible for paying the judgment against the officer. All he could recover in a further proceeding against the city was nominal damages of a dollar, and the trial court could exercise its discretion to avoid a trial on that basis. Manzanares v. City of Albuquerque, #10-2011, 2010 U.S. App. Lexis 25621 (10th Cir.).
During a child welfare check at the home of a man and his girlfriend, a confrontation occurred that resulted in the officers pulling their weapons on the couple, ordering them from the home, and then leaving them handcuffed on the front sidewalk while the officers searched inside. The officers went to the home because they received a call from a neighbor suggesting a woman there was beating a toddler and putting him outside the house in the rain, telling him that he would stay there until he shut up. The couple told the officers that there was no child at the home. No child was found there. The couple sued the police for violation of their civil rights, and the trial court granted the officers qualified immunity. A federal appeals court reversed, as the plaintiffs alleged facts which, if true, indicated that the officers, while they may have had grounds for a brief investigatory detention, could not, acting in an objectively reasonable manner, prolong the detention and search the home. Lundstrom v. Romero, #08-2254, 2010 U.S. App. Lexis 17136 (10th Cir.).
The City of Chicago has approved a $15.5 million settlement of a federal class action civil rights lawsuit claiming that officers engaged in abuse and unlawful detention practices in the handling of suspects. The lawsuit claimed an "institutionalized system of police torture," and included allegations of unlawful arrests without warrants, the unnecessary shackling of suspects to walls or benches for prolonged periods of time, and the denial of food and water or opportunities to use a bathroom. The class was composed of persons detained overnight by Chicago police from March 1999 through March of 2010. Over 500,000 people could be eligible to share in the settlement, according to news reports, with most receiving between $90 and $3,000. The city will pay $15 million towards the settlement with the rest paid by an insurer. Up to $5 million in fees will go to the plaintiffs' attorneys in fees and costs. Dunn v. City of Chicago, #04-CV-6804, U.S. Dist. Ct. (N.D. Ill. May, 2010).
A married couple claimed that police officers acted unreasonably in stopping the family's vehicle and subjecting the husband to a prolonged investigatory detention based on an observation of the husband at a bank. Aside from being African-American, the husband did not look like the robbery suspect sought, since he was roughly twice the size of the suspect, and would not have been described as "muscular," even dressed in baggy clothes. Additionally, his conduct at the bank did not even remotely match the bank robber's method of operation, as the whole family, including two children, went to a drive-up window, parked, and then the husband, paycheck in hand, tried the front door, which was locked. The husband identified himself to the police as a pastor, but they allegedly did nothing to verify his identity. Under these circumstances, a 40-minute detention would be unreasonable, the appeals court stated, upholding a denial of summary judgment for the officers. Hopkins v. Vaughn, #08-2727, 2010 U.S. App. Lexis 2121 (Unpub. 3rd Cir.).
An officer was entitled to qualified immunity for briefly detaining the plaintiff, a university student, since he had reasonable suspicion that he was a minor in unlawful possession of alcohol, observing him in a group, several of whom had beers in their hands as they walked across a square. He demanded the plaintiff's identification, checked the validity of his driver's license, and checked whether there were any outstanding warrants. The officer was not required to take the plaintiff's word that he was 21, and his initial refusal to hand over his license justified a suspicion that perhaps it was a phony, or there were outstanding warrants for the plaintiff's arrest. Klaucke v. Daly, #09-1222, 2010 U.S. App. Lexis 2633 (1st Cir.).
A husband and father was shot and killed after his 12-year-old daughter went to get a gun for him. Police suspected that he might have been murdered by his family members. The wife and daughter claimed that they were improperly detained in a police mobile unit for one-and-a-half to two hours when officers, actually engaged in installing a surreptitious listening device in their home pursuant to a warrant, falsely told them that there was a hostage situation involving a gun in the area so that they could not return to their home. The daughter, who was subsequently arrested, claimed that officers interrogated her without advising her of her right to have her attorney or mother present, and denied her access to her attorney or mother. She disputed the officers' claim that she had waived her rights. Denying motions by the officers for qualified immunity or judgment as a matter of law, the court instructed the jury on both unlawful detention and unlawful interrogation claims, The jury was also instructed on qualified immunity. The jury, answering special interrogatories, found that the officers' had not violated the plaintiffs' Fourth Amendment rights through unlawful detention, and that they did not engage in conduct that "shocks the conscience" in violation of due process in their interrogation of the daughter. While the plaintiffs argued that the trial judge acted erroneously in submitting the instruction on qualified immunity to the jury, the appeals court ruled that, even if this were the case, it would have been harmless, in light of the jury's answers to special interrogatories indicating a "total defense verdict" on all issues, including whether the officers engaged in unlawful detention or improper interrogation. Gonzales v. Duran, #08-2184 590 F.3d 855 (10th Cir. 2009).
The sister and brother-in-law of a man shot and killed by police claimed that officers violated their rights by detaining the brother-in-law. The plaintiffs lacked standing to assert any claims based on the officers' conduct towards the decedent, the court ruled. The defendants argued that the brother-in-law was properly detained based on probable cause to believe that he was interfering with an officer's performance of his duties in the garage where the shooting took place, and subsequently had justification to keep detaining him at the police station due to probable cause to believe that he had assaulted an officer. The officers also claimed that both plaintiffs were properly detained as material witnesses to the shooting. While their detention for eleven hours exceeded brief detentions that were found by other courts to be justified on that basis, the court in this case found that exceptional circumstances and the sequence of events justified the length of the detentions in this case. Golla v. City of Bossier City, #06-2298, 2009 U.S. Dist. Lexis 116863 (W.D. La.).
While there was probable cause to arrest a man in a bank parking lot for two vehicle offenses, the officers arguably violated the arrestee's Fourth Amendment rights by allegedly keeping him in custody for longer than 48 hours (52 hours) without a judicial determination of probable cause to engage in investigation of other possible crimes, such as his possible involvement in a bank robbery. Swanigan v. Trotter, #07-C-4749, 2009 U.S. Dist. Lexis 68395 (N.D. Ill.).
Officers and a town were not entitled to dismissal of a woman's claim that she was unlawfully detained. While it could be argued that any reasonable person would have felt free to leave when she was being questioned by one of the defendant officers, the court stated, the arrival of three officers changed the circumstances enough to possibly constitute an unlawful seizure or improper interrogation, requiring further proceedings. The court rejected the argument that the plaintiff had clearly already been seized by the one officer before the others arrived, and that they therefore could not be liable for her seizure. Saenz v. Lucas, 07 Civ. 10534, 2008 U.S. Dist. Lexis 69571 (S.D.N.Y.).
The plaintiff, a U.S. citizen, went to Iraq to work on a documentary film, and was arrested and then detained in a U.S. military camp after washing machine timers were found in his taxi. Such timers, according to the court, are often used in explosive devices. He was allegedly held for 48 days before he was provided with a hearing before a military officers' panel, following which an investigation cleared him of criminal conduct. He was then released six days later. He sued two generals, a number of other unnamed defendants, and the former Secretary of Defense, claiming that his Fourth and Fifth Amendment rights were violated by these actions. The federal trial court ruled that the plaintiff was protected by the provisions of the Bill of Rights while overseas, but that the defendants could not be held liable. They were entitled to immunity as the prior clearly established case law concerning the right to a timely probable cause hearing concerned detainees on "non-hostile U.S. territory" rather than overseas. There was also no violation of his right to due process, since he received prompt notice of the charge against him. In the setting of a battlefield, the court commented, the government has a strong interest in providing for the safety of military personnel, and this took priority over the holding of a probable cause hearing under the circumstances. The lawsuit was dismissed. Kar v. Donald Rumsfeld, Civil Action No. 07-0984, 2008 U.S. Dist. Lexis 73974 (D.D.C.).
Prosecutor was not entitled to absolute prosecutorial immunity when it was alleged that they failed to inform a judge who issued a warrant to detain material witnesses in a murder case that the case had been continued, resulting in the witnesses remaining incarcerated. The duty to inform the judge of this was administrative rather than prosecutorial, especially when the judge had ordered that he be kept informed of any delay in the underlying murder case. In a second case, decided together with the first one, the federal appeals court also found that keeping a witness in a case in custody after the end of the proceeding in which he was to testify was part of the prosecutor's administrative oversight duties, and had "nothing to do" with carrying out the prosecution, so that absolute immunity was not available. Odd v. Malone, No. 06-4287, 2008 U.S. App. Lexis 16466 (3rd Cir.).
A police officer acted reasonably in detaining two suspects in an auto theft investigation on the basis of a "be on the lookout" (BOLO) report when the suspects matched the description of the persons sought. The BOLO said that the suspects were young black males, one wearing a white jersey and one wearing a blue jersey, and one having corn rows in his hair. While the officer may not have needed to display his weapon or order the suspects on the ground in order to detain them until the highway patrol arrived, he did not deliberately violate their rights, and was entitled to qualified immunity on a claim that the manner of the detention was unreasonable, as well as on an excessive force claim. The fact that those detained were not the suspects sought did not alter the result. While Dorsey v. Barber, No. 05-4235, 2008 U.S. App. Lexis 3650 (6th Cir.).
Police officer's stop and detention of a woman, when based entirely on an anonymous tip that she was carrying a gun while walking a dog, with no indication of its reliability did not appear to be supported by reasonable suspicion of criminal activity. Additionally, as the officer had handcuffed this suspect, and she posed no threat to anyone, and there was no evidence of exigent circumstances, the officer's warrantless entry into the suspect's home was not lawful. The officer was not entitled to qualified immunity. Holloway v. Vargas, No. 06-4138, 2008 U.S. Dist. Lexis 9672 (D. Kan.).
Deputy called to the scene of a residential fire was justified in at least briefly detaining a woman found at the residence when he had been advised by fire department officials that a woman was "barricaded" in the building and refusing to come out, and the woman was behaving "irrationally" and in a "highly agitated' way at the time. At the time of the detention, the possibility that the fire was the result of arson had not been ruled out. Bell-Hayes v. Dewitt, No. 06-1683, 2008 U.S. App. Lexis 3125 (4th Cir.).
Officers did not violate a man's Fourth Amendment rights in handcuffing a man, searching his van, luggage, and apartment, and taking him to a hospital, where he voluntarily was hospitalized for treatment, after they received information from a hot line operator stating that the man had stated that he was suicidal, possessed weapons at his residence, and that he "could understand" why people would shoot others at work. The officers spoke to a co-worker to determine that the threats should be taken seriously, and there were exigent circumstances justifying the warrantless actions taken to both determine the scope of the threat and to defuse it. Under these circumstances, seizing the man's weapons was justified, and the continued retention of the weapons by police was not a due process violation when the man subsequently failed to follow available state law procedures to get his property returned. Mora v. City of Gaithersburg, No. 06-2158, 2008 U.S. App. Lexis 4561 (4th Cir.).
Police officer did not act unreasonably in detaining a man and taking him to a state hospital for mental evaluation after he pointed a finger in the officer's face during a conversation about his claim that government officials had been harassing him. At the hospital, he was diagnosed with "psychotic disorder--not otherwise specified." His statements indicated that he would follow police and try to "get to the bottom" of the purported attacks on him showed that there was a substantial risk that he would engage in dangerous and irrational behavior and that he was mentally ill. Nothing that the officer did was "shocking" to the conscience or violated his rights. He also did not produce any evidence that the officer gave false information about him to hospital personnel. Simon v. Cook, No. 06-6514, 2008 U.S. App. Lexis 2381 (6th Cir.).
Reports that a motorist had displayed a gun at a truck driver during a "road rage" incident were sufficient to give an officer sufficient reasonable suspicion of criminal activity to detain him handcuffed in the back seat of a police cruiser for about 15 minutes while determining whether the truck driver intended to file criminal charges. Williams v. Leatherwood, No. 06-6322, 2007 U.S. App. Lexis 30056 (6th Cir.).
A motorist stopped and detained by a police detective raised a genuine issue of fact as to whether the initial seizure of herself and her vehicle had been improperly extended for over two hours after there was no longer any reasonable suspicion of any criminal activity. She claimed that she remained handcuffed at the scene for a prolonged period of time and was then directed to go with officers to police headquarters. Overturning summary judgment for the detective, the appeals court ruled that the plaintiff alleged facts from which a reasonable jury or other factfinder could find that her continued detention violated the Fourth Amendment. Gilles v. Repicky, No. 06-1272, 2007 U.S. App. Lexis 29520 (2nd Cir.).
Police officer was not entitled to qualified immunity on a claim that he improperly continued to detain two Hispanic family members at a store after determining that they had a receipt for the merchandise he suspected them of stealing. He allegedly forced them to continue to wait at the store until the border patrol arrived on the basis of nothing other than the fact that they were Hispanics, and should have known, at that time, that he lacked a basis to continue their detention. Flores v. J.C. Penney Corp., No. 06-55570, 2007 U.S. App. Lexis 28039 (9th Cir.).
Police officers initially had probable cause to arrest the plaintiff as the armed man who robbed a gas station, based on the cashier's identification of him as the robber, but two officers were not entitled to summary judgment on the arrestee's claim that, although he had prominent tattoos on his arms, they unreasonably prolonged his detention after watching a videotape that showed that the robber had no such tattoos, hid the tape, and falsely reported that the tape showed a man with tattoos. Russo v. City of Bridgeport, No. 05-4302, 2007 U.S. App. Lexis 4428 (2nd Cir.).[N/R]
Burglary arrestee who was allegedly detained for three additional days after the homeowner told police that he had permission to be in the residence and to take the items he had been accused of stealing was not entitled to damages against the city, based on his failure to show that the city's inaction was what caused his prolonged incarceration. Merely showing six other complaints against the city for allegedly overly long detentions in a five-year period was insufficient to establish a "persistent" pattern of similar deprivations. Alphabet v. City of Cleveland, No. 1:05 CV 1792, 2006 U.S. Dist. Lexis 83489 (N.D. Ohio). [N/R]
Detention of suspect for five days after his warrantless arrest without taking him before a judge for a probable cause hearing entitled him to judgment as a matter of law on his federal civil rights claims arising out of that fact, so that trial judge acted erroneously on refusing to submit the claim to the jury and instead granting the defendants' motion for judgment as a matter of law. Plaintiff was also entitled to further proceedings on his claim concerning the conditions of his warrantless detention, based on conflicting evidence. Lopez v. City of Chicago, No. 05-1877, 464 F.3d 711 (7th Cir. 2006). [N/R]
Under Michigan state law, arrestee's lawsuit over being mistakenly being held in custody for several months despite his claim that his twin brother was the person suspected of having committed a crime fell within a "gross negligence" exception to the defense of governmental immunity from liability. Kendricks v. Rehfield, No. 256693, 716 N.W.2d 623 (Mich. App. 2006). [N/R]
Because there were genuine factual issues as to whether an officer acted intentionally in delaying the processing of paperwork required before an arrestee could be given his probable cause hearing, he was not entitled to summary judgment in the arrestee's federal civil rights lawsuit. The city, however, could not be liable for the officer's alleged actions, since there was no evidence of a municipal policy or custom of such delays or of a pattern of tolerance by the city of such delays. Smith v. Eggbrecht, No. 04-5302, 414 F. Supp. 2d 882 (W.D. Ark. 2005). [N/R]
An alleged four to six hour delay in releasing an arrestee from detention after he posted bond was not deliberate indifference to his due process rights when there were valid administrative reasons for the delay, including a requirement, when an arrestee had violated a protective order, that the county notify the victims of his pending release, and the fact that there were more inmates than usual and more releases than usual on the dates of the plaintiff's incarceration. Stepnes v. Hennepin County, No. 05-2059, 153 Fed. Appx. 410 (8th Cir. 2005). [N/R]
Officers' actions in confining tenants during the search of their apartment under a warrant which did not state which of two apartments on the second floor should be searched was "privileged," barring their false imprisonment claim against the city. Paulemond v. City of New York, 812 N.Y.S.2d (Sup. App. Term 2006). [N/R]
Police officers did not violate a man's rights by detaining and questioning him after he was reported to be armed in a hardware store. While the man turned out to be a police officer in civilian clothes, the initial identification he displayed did not conclusively confirm this, so the officers did not act improperly in continuing the detention and questioning until they were sure. Thurman v. Village of Homewood, No. 05-2940, 2006 U.S. App. Lexis 10881 (7th Cir.). [2006 LR Jun]
African-American man detained by police officer in front of his home as a suspect in an assault and robbery was entitled to a new trial in his unlawful detention lawsuit when the officer's detention of him was not based on any articulated facts. Subsequent pressing of criminal charges against him and another African-American male for alleged involvement in the crime, while failing to bring similar charges against a white male also identified by the victim as involved in the crime, were not shown to be racially motivated. Mitchell v. Boelcke, No. 04-2219, 2006 U.S. App. Lexis 5120 (6th Cir.). [2006 LR Apr]
Sheriff's deputies who allegedly detained a man and his wife, taking them from their home at night, on the basis of an uncorroborated phone call from a hospital nurse stating that a two-year-old child told her mother that the man had "hurt her pee pee" were not entitled to qualified immunity on false arrest and unlawful detention claims. Cortez v. McCauley, No. 04-2062 2006 U.S. App. Lexis 3270 (10th Cir.). [2006 LR Apr]
Federal court certifies class action status for lawsuit brought by former Chicago post-arrest detainees who claimed that they were subject to improperly long interrogation room confinement, deprived of sleep accommodations, and held for over 48 hours before receiving a probable cause hearing. Dunn v. City of Chicago, No. 04-C-6804, 231 F.R.D. 367 (N.D. Ill. 2005). [N/R]
Police officer's initial investigatory stop of suspect and detention of him for one hour near his house was not shown to be unreasonable. The plaintiff failed to allege the reason for the initial detention or an explanation why the one-hour delay was unreasonable. The evidence available, which included that he was a known methamphetamine user and dealer, that he had been stopped many times before, and that the officers smelled anhydrous ammonia (a key ingredient in manufacturing methamphetamine) coming from his house, "suggests tat the officers did have reasonable suspicion." The officers had asked for permission to search his house, and when this was refused, they placed him in the back of a police car where he sat until the officers obtained a search warrant for the residence. Bowden v. City of Electra, No. 04-10767, 152 Fed. Appx. 363 (5th Cir. 2005). [N/R]
Detainment of an arrestee for 10.5 hours during his processing for release on posted bail was not unconstitutionally unreasonable. Sizer v. County of Hennepin, No. Civ. 03-5830, 393 F. Supp. 2d 796 (D. Minn. 2005). [N/R]
A 24-hour detention of a motorist arrested under a valid bench warrant for unpaid traffic citations did not shock the conscience. While delays in completing his processing, in part due to problems with a new computer system, were unfortunate and "upsetting," they did not constitute a violation of his constitutional due process rights. Luckes v. County of Hennepin, No. 04-3156, 2005 U.S. App. Lexis 15437 (8th Cir.). [2005 LR Sep]
Trial court improperly granted summary judgment for defendants in domestic violence arrestee's lawsuit claiming that he was unlawfully detained for four days without being arraigned, and that he was then unlawfully evicted from his home by being threatened with another arrest if he did not leave there. If his version of events was true, several supervisory officers knew he was being detained for an unreasonable time period without being brought before a judge, but failed to intervene. Turner v. City of Taylor, No. 03-2636, 2005 U.S. App. Lexis 11233 (6th Cir.). [2005 LR Aug]
Sheriff was not entitled to qualified immunity on detainee's claim that he was arrested by deputies without a warrant and then detained unlawfully for eight days without a judicial determination of whether there was probable cause for the arrest. Lingenfelter v. Board of County Commissioners of Reno County, Kansas, #04-1244, 359 F. Supp. 2d 1163 (D. Kan. 2005). [N/R]
Police officers' refusal to issue desk appearance tickets and release arrested gay rights demonstrators immediately after their arrest was not objectively unreasonable, so trial court properly dismissed lawsuit claiming that the prolonged post-arrest detentions violated due process. Appeals court further finds that the Fourth Amendment's reasonableness standard was the proper one to apply. Bryant v. City of N.Y., No. 04-0199, 404 F.3d 128 (2d Cir. 2005). [2005 LR Jun]
Deputy did not violate motorist's rights by continuing to detain him after he passed a field sobriety test at a checkpoint. The deputy had reasonable questions concerning the motorist's use of a dealer plate on his car, and the motorist himself contributed to the length of the detention by arguing with the deputy about motor vehicle laws. Motorist was only arrested after he refused to sign a citation for his alleged unlawful use of a dealer plate, and himself demanded that he instead be taken before a magistrate judge. Gross v. Pirtle, #01-2337, 116 Fed. Appx. 189 (10th Cir. 2004). [N/R]
Elementary school's detention and questioning of ten-year-old student after her classmates claimed that she had brought a handgun to school, and the subsequent involvement of police officers in continuing to detain and question her, and searching the school grounds for the gun, did not violate the constitutional rights of either the student, or her mother, who was not notified of the detention or questioning until it was over. Wofford v. Evans, No. 03-2209, 390 F.3d 318 (4th Cir. 2004). [2005 LR Mar]
Motorist's 38-day detention before a first appearance before a judge following an arrest by warrant violated his right to due process and shocked the conscience. Detainee was properly awarded $50,000 in damages and $46,929.50 in attorneys' fees and costs. Hayes v. Faulkner County, No. 03-3787 2004 U.S. App. Lexis 22521 (8th Cir. 2004). [2004 LR Dec]
City's procedures for obtaining a post-arrest probable cause determination in warrantless arrests did not violate constitutional requirements, despite not requiring a personal appearance of the arrestee before the magistrate and the use of a pre-printed form for the officer to fill out and submit along with the arrest report and related records. Jones v. City of Santa Monica, No. 03-55211 2004 U.S. App. Lexis 19046 (9th Cir. September 10, 2004) [2004 LR Nov]
Deputy sheriffs did not violate an apparently intoxicated individual's rights by detaining him and transporting him to the hospital, despite having no reason to suspect that he committed any crime. Under the deputies' "community caretaking" function, they were justified in detaining him when he was found walking along a roadway in a rural area in the winter without proper winter clothing. Additionally, they were justified in assisting, at the hospital, with his involuntary catheterization, when they were merely helping medical personnel to carry out health care decisions to which they did not assist in making. Tinius v. Carroll County Sheriff Department, 321 F. Supp. 2d 1064 (N.D. Iowa 2004). [N/R]
U.S. Supreme Court grants review on case involving the scope of permissible detention and questioning of persons, not suspected of crime, found inside a residence during the execution of a search warrant. Mena v. Simi Valley, Calif., 332 F.3d 1255 (9th Cir. 2003), cert. granted, Muehler v. Mena, No. 03-1423, 2004 U.S. Lexis 4190 (June 14, 2004). [2004 LR Jul]
Police officers who responded to a radio call for back-up during a traffic stop were entitled to qualified immunity in motorist and passengers' lawsuit challenging the reasonableness of the detention and its length, as they did not personally participate in the stop and detention and were entitled to rely on statements made by the officer who had observed the vehicle and the alleged grounds for the stop. Lewis v. City of Topeka, Kansas, 305 F. Supp. 2d 1209 (D. Kan. 2004). [N/R]
County sheriff was not liable for false imprisonment for taking plaintiff into custody and continuing to hold him when court sentencing order and release order were ambiguous concerning when and how he should be released from custody on contempt charge for failing to appear at court proceeding. Emory v. Pendergraph, No. COA01-1591, 571 S.E.2d 845 (N.C. App. 2002). [N/R]
Officers were not entitled to summary judgment on claim that they detained a shopping mall customer on suspicion of shoplifting without reasonable grounds to do so, but plaintiff customer failed to adequately allege a claim against the city for failure to train officers in arresting, detaining, and interrogating racial and ethnic minorities by citing only this incident in which officers allegedly subjected him to illegal seizure. Hall v. City of White Plains, 185 F. Supp. 2d 293 (S.D.N.Y. 2002). [2002 LR Jun]
343:102 NY officials reach $3.25 million settlement in lawsuit over mistaken two-year imprisonment of mentally ill homeless man extradited to the state after being misidentified as a fugitive drug dealer. Sanders v. N.Y. Depart. of Corrections, No. 97 Civ. 7112 (DAB), U.S. Dist. Ct. (S.D.N.Y. April 12, 2001), reported in The New York Times, National Edition, p. A14 (April 13, 2001).
EDITOR'S NOTE: In a case brought by the same plaintiff against the California county where the man was first misidentified and detained before extradition to New York, a $290,000 settlement was reached. Lee v. County of Los Angeles, No. No. CV-96-07268-WMB, U.S. Dist. Court (C.D. Cal. 2001). Claims against the city police department there, remain pending. Lee v. City of Los Angeles, No. 98-55807, 250 F.3d 668 (9th Cir. 2001). (Overturning dismissal of federal civil rights claims under the First and Fourth Amendment against city and four individual police officers and ruling that plaintiff should have an opportunity to amend a disability discrimination claim under the Americans With Disabilities Act (ADA) which the trial court had dismissed with prejudice).
343:108 Officers were entitled to qualified immunity on claim that their search warrant for a residence was overbroad, when they could reasonably have believed that the residence was a single family home with multiple unrelated occupants; once they realized, however, that some rooms were separate living units, the scope of the permissible search would narrow, and further detention, at that point, of residents of other rooms might also become unreasonable. Mena v. City of Simi Valley, No. 99-56720, 226 F.3d 1031 (9th Cir. 2000).
339:42 Officer was not liable for detention of landlord, which allegedly caused his collapse because he needed access to his oxygen and medical equipment to prevent reoccurrence of recent stroke, when officer had no information concerning landlord's medical condition when she detained him while attempting to resolve landlord-tenant dispute over tenant property. Loudes v. City of Minneapolis, Minn., 233 F.3d 1109 (8th Cir. 2000).
326:28 Aggressive campaign of seizing allegedly intoxicated individuals and taking them to detoxification facility for treatment evaluation without probable cause that they were dangerous to themselves or others violated Fourth Amendment. Anaya v. Crossroads Managed Care Systems, Inc., #97-1358, 195 F.3d 584 (10th Cir. 1999).
328:54 Man who pled "no contest" to manslaughter charges and was sentenced to time served after his murder conviction was overturned because of the withholding of evidence by police could not recover damages for his period of incarceration; trial judge properly set aside first jury's $1.5 million award. Olsen v. Correiro, #96- 1425, 189 F.3d 52 (1st Cir. 1999).
328:55 State troopers were not liable for continuing to hold, for a day and a half, arrestee taken into custody pursuant to a valid arrest warrant, after they gradually began to suspect he was not the person actually sought; arrest warrant was issued based on original suspect having assumed another man's identity. Brady v. Dill, #98- 2293, 187 F.3d 104 (1st Cir. 1999).
329:69 Officers not liable for failure to release arrestee after they allegedly learned he was not the suspect in an attack; arrestee was taken into custody under valid warrant and officers did not have authority to release him without a judicial order. Miller v. Bd. of County Commissioners of County of Rogers, 46 F.Supp. 2d 1210 (N.D. Okl. 1999).
317:72 Officers did not violate rights of motorist arrested for failing to sign a traffic citation when they failed to bring him before a judge for twenty-eight hours after his arrest. Stricker v. Kuehl, 26 F.Supp. 2d 1344 (M.D. Fla. 1998).
294:88 New York state statute, interpreted as making delay in arraignment for over 24 hours "presumptively unnecessary," did not give arrestee the right to recover damages under state law for an arraignment delay of 36 hours; federal appeals court also finds that violation of this statute could not be the basis for a federal civil rights claim Watson v. City of New York, 92 F.3d 31 (2nd Cir. 1996).
295:103 Officers' overnight detention of domestic violence arrestee, when magistrate was not available to conduct arraignment, did not constitute an unreasonable "delay for delay's sake"; twenty-two hour detention did not violate arrestee's constitutional rights, so officers were entitled to qualified immunity Brennan v. Township of Northville, 78 F.3d 1152 (6th Cir. 1996). 285:136 While keeping an intoxicated man in protective custody for a second twelve hour period clearly violated a Massachusetts state statute, officers were entitled to qualified immunity since it was not clearly established that this would violate the Fourth Amendment; further, officers could have reasonably believed that man consented, and testified that he was incapacitated and they kept him in custody "for his own good" Ringuette v. City of Fall River, 906 F.Supp. 55 (D.Mass 1995). [Cross-reference: Defenses: Qualified (Good-Faith). Immunity]
265:8 Police chief and police department were not liable for arrestee's detention for fourteen months in county jail without being formally charged with a crime; detainee was not in their custody during that period, and mere fact that chief knew that plaintiff had been arrested and lack of written procedures for conducting criminal investigations were insufficient grounds for imposing liability Tilson v. Forrest City Police Dept, 28 F.3d 802 (8th Cir. 1994).
265:9 Arrestees incarcerated for months before charges were dismissed when complaining witness did not appear at trial could not hold city liable based on alleged failure of prosecutor to screen cases or expedite trial preparation after probable cause was found at preliminary hearing Reed v. City and County of Honolulu, 873 P.2d 98 (Hawaii 1994).
California appeals court rules that there is no right to use "reasonable force" to resist an allegedly unlawful detention; $318,75714 jury award to detainee whose neck was broken during alleged altercation with officer overturned on basis of erroneous jury instructions Evans v. City of Bakersfield, 27 Cal 2d 406 (Cal App. 1994).
Holding already processed sex crimes arrestee in detention without a probable cause determination for 45 hours in order to investigate other suspected crimes violated his right to a prompt judicial determination Willis v. City of Chicago, 999 F.2d 284 (7th Cir. 1993). cert denied, 114 S.Ct. 879 (1994).
California appeals court rules that there is no right to use "unreasonable force" to resist an allegedly unlawful detention; $318, 75714 jury award to detainee whose neck was broken during alleged altercation with officer overturned on basis of erroneous jury instructions Evans v. City of Bakersfield, 27 Cal 2d 406 (Cal App. 1994).
Holding already processed sex crimes arrestee in detention without a probable cause determination for 45 hours in order to invesigate other suspected crimes violated his right to a prompt judicial determination Willis v. City of Chicago, 999 F.2d 284 (7th Cir. 1993), cert denied, 114 S.Ct. 879 (1994).
Holding an arrestee in custody for four days before taking her before a judge for arraignment because she would not submit to booking procedures was a violation of her constitutional rights Hallstrom v. City of Garden City, 991 F.2d 1473 (9th Cir. 1993).
Arrestees seized without warrants are entitled to probable cause hearings "no later" than 48 hours after arrest County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991).
Bringing additional charges against arrestee for "impairing the operation of a vital public facility" because he refused to give his social security number was not a reasonable charge; complaint stated claim for conspiracy to instigate false charges to coerce dismissal of separate civil rights lawsuit Duvall v. Sharp, 905 F.2d 1188 (8th Cir. 1990).
One and one-half day detention of misdemeanor arrestee was not unreasonable when arrestee also had an outstanding arrest warrant for failure to appear in court Cemond v. Smith, 753 F.Supp. 713 (N.D.Ill. 1990).
Sheriff's failure to resolve doubts about arrestee's identity in three month period was objectively unreasonable Tillman v. Coley, 886 F.2d 317 (11th Cir. 1989).
No violation of civil rights to arrest and detain homeless man for 288 days when he was material witness to homicide White By Swafford v. Gerbitz, 892 F.2d 457 (6th Cir. 1989).
Shoplifting arrestee subjected to weekend detention because of mistaken identification as subject of outstanding robbery warrant could not recover for wrongful detention Golden v. City of Cleveland, 51 Ohio App. 3d 39, 554 N.E.2d 148 (1989).
No civil rights violation when sheriff detains suspect arrested with warrant for three days even though wrong individual had been arrested Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689 (1979).
Sheriff could be liable for criminal commitment when plaintiff should have been in civil section of jail Marshon v. City of New York, 451 N.Y.S.2d 106 (App1982).
Sheriff liable for continued detention of individual after grand jury had "no-billed" him Williams v. Heard, 533 F.Supp. 1153 (S.D.Tex. 1982).
Federal court finds Texas officer immune from liability for federal civil rights violation for jailing plaintiff after traffic stop; sends case to jury on issue of failure to take before a magistrate, a claim based on state tort liability Rheaume v. Texas Department of Public Safety, 666 F.2d 925 (5th Cir. 1982).
District court enjoins Houston, Texas from detaining persons arrested longer than "94 hours without taking them before a judicial officer for determination of probable cause Sanders v. City of Houston, 543 F.Supp. 695 (S.D.Tex. 1982).
Jailers not liable for incarceration of falsely arrested prisoner Wood v. Worachek, 618 F.2d 1225 (7th Cir. 1980).
Officer not guilty of unlawfully detaining plaintiff in jail overnight for traffic violation because the magistrate was unavailable Valadez v. City of Des Moines, 324 N.W.2d 475 (Iowa 1982).
Arrestees may not be detained longer than 24 hours before being taken to a magistrate Sanders v. City of Houston, 543 F.Supp. 694 (S.D.Tex. 1982).
Pretrial detention of juveniles held unconstitutional Martin v. Strasburg, 689 F.2d 365 (2nd Cir. 1982).
Prisoner awarded damages for unreasonable delay in being transported Occhino v. United States, 686 F.2d 1032 (8th Cir. 1982).
Even though officer's arrest of plaintiff for eating on bus violated state law it did not violate federal law and thus presented no constitutional rights violation Fisher v. Washington Metro Area Transit Authority, 690 F.2d 1133 (4th Cir. 1982).
County ordered to hold probable cause hearing no longer than 24 hours after warrantless arrest Bernard v. City of Palo Alto, 699 F.2d 1023 (9th Cir. 1983).
Good faith reliance on department regulation precludes police officers' liability for improper detention Moore v. Zarra, 700 F.2d 329 (6th Cir. 1983).
Detainment and request for identification was reasonable Vickroy v. City of Springfield, Mo, 706 F.2d 853 (8th Cir. 1983).
Prisoner claiming he was not immediately released from jail despite court order releasing him has class action standing; case includes a discussion of class action suits Lewis v. Tully 99 F.R.D. 632 (N.D.Ill. 1983).
City allowed to enforce federal immigration laws by making arrests of violators Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983).
Deletion for failure to pay court costs constitutes unlawful imprisonment In Re Rinehart, 462 N.E.2d 448 (Ohio App. 1983).
City liable for officer's locking minor children in jail following Mother's arrest for traffic violation Martini v. Russell, 582 F.Supp. 136 (CD Ca 1984).
No liability to sheriff and warden for improperly incarcerating plaintiff for not paying traffic fines Zuranski v. Anderson, 582 F.Supp. 101 (N.D.Ind 1984).
Attorney's fees awarded against magistrate enjoined from arresting individuals for nonjailable offenses Pulliam v. Allen, 104 S.Ct. 1970 (1984).
Entering home was proper to investigate noise complaints Mann v. Mack, 202 Cal.Rptr. 296 (App. 1984).
Decision to take child into custody afforded immunity Del Valle by Sigette v. Taylor, 587 F.Supp. 514 (D.N.D. 1984).
Motorist arriving to pay bond ends up incarcerated after escorted through wrong door Trezevant v. City of Tampa, 741 F.2d 336, (11th Cir. 1984).
Two-hour detainment not a violation Wilson v. Walden, 586 F.Supp. 1235 (WD Mo 1984).
Jury to decide whether officers reliance on newspaper photo to identify robber was reasonable Deary v. Three Unnamed Police Officers, 746 F.2d 185 (3rd Cir. 1984).
Unconstitutional to use jails for confining persons awaiting commitment proceedings Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984).
Sheriff immune for arrestee's 18-day delay to magistrate Coleman v. Fraritz, (7th Cir. 1985).
Pro se plaintiff allowed to amend his complaint Satchell v. Dilwaorth, 745 F.2d 781 (2nd Cir. 1984).
Personal checks not accepted for bond; monitoring arrestee's phone conversation not considered preconviction punishment Eischen v. Minnehaha County, 363 N.W.2d 199 (S.D.1985).
Suit accuses defendants of placing plaintiff on mental hold to coerce confession Rex v. Teeples, 753 F.2d 840 (10th Cir. 1985).
Officer shielded from liability for stopping truck-driver Brierley v. Schoenfeld, 781 F.2d 838 (10th Cir. 1986). Improper lineup doesn't subject police to liability Hensley v. Carey, 633 F.Supp. 1251 (N.D.Ill. 1986).
High state court upholds protective custody provisions Hontz v. State, 714 P.2d 1176 (Wash 1986).
60-hour-detention without judicial determination automatic fourth amendment violation; reason for delay irrelevant Mabry v. County of Kalamazoo, 626 F.Supp. 912 (WD Mich 1986).
Policy of detaining all misdemeanor arrestees until fingerprints can be cleared violated fourth amendment Doulin v. City of Chicago, 662 F.Supp. 318 (N.D.Ill. 1987).
Allegation that arrestee was held 24 hours without hearing in order to build case against him stated claim; racial animus can be alleged without attributing racial statements to all defendants Hunt v. Jaglowski, 665 F.Supp. 681 (N.D.Ill. 1987).
Detention of arrestees for twenty-four hours without seeing judge violates fourth amendment Williams v. Ward, 671 F.Supp. 225 (S.D.N.Y. 1987).
Arrestee can constitutionally be kept up to 72 hours in New York without arraignment Williams v. Ward, 845 F.2d 374 (2d Cir. 1988).
Continued detention of arrestee after police obtained information implicating another person was at most, negligent; no civil rights liability Simmons v. McElveen, 846 F.2d 337 (5th Cir. 1988).
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