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(Published as VOLUME 2000 NUMBER 331)
Assault and Battery
Defenses: Fugitive Disentitlement
Defenses: Qualified Immunity
Defenses: Statute of Limitations
False Arrest/Imprisonment: No Warrant
Negligence: Vehicle Related
Public Protection: Ill Persons
Search and Seizure: Home
Index of Cases Cited
ASSAULT AND BATTERY: PHYSICAL
$4.95 million settlement reached in lawsuit over death of man with no genitals who allegedly was beaten by officer after intervening when police used pepper spray on his brother during traffic stop that plaintiffs claimed was racially motivated.
An Illinois man was driving home from McDonalds with his brother in the car. Officers later stated that the car did not have license plates and did not stop despite police orders, although the man's family later claimed that the vehicle had already pulled over when the officers approached. A struggle ensued during which officers used pepper spray on the driver.
The driver's brother then intervened and was himself pepper sprayed and allegedly punched in the abdomen. Officers stated that the brother attacked an officer, but denied beating him. The brother had a rare birth defect, which included having a bladder on the outside of his body, and had undergone numerous surgeries which had left him without genitalia. He complained of pain in his abdomen after the incident and was taken to a hospital, where he was examined and returned to police custody.
He died sixteen hours after his arrest, suffering septic shock from urine leaking into his abdominal cavity from a puncture to his bladder. The autopsy did not show any external injuries. A lawsuit by his family asserted that the initial stop was racially motivated, and that the decedent was targeted because he was African-American and because the officers knew he had no genitalia and had been raised as a girl. The lawsuit also claimed that police ignored his requests for further medical attention once he was returned to their custody.
Defendants in the lawsuit denied that the vehicle had been stopped for racial reasons, and stated that the discrepancy between the 3% African-American population of the village and the 15% African-American number of arrested motorists in a six year period might be based on the passage of many nonresidents through the village in their vehicles.
A settlement of $4.95 million was reached, with the defendant village paying $4 million and the rest being paid by the hospital and doctor who treated the decedent after his arrest. Smith v. Village of Hoffman Estates, No. 97 L-605, U.S. Dist. Ct. (N.D. Ill.), June 27, 2000, reported in Chicago Tribune, Sec. 2, p. 1 (June 28, 2000). [Cross-reference: Racial Discrimination; Search and Seizure: Vehicle.]
ATTORNEYS' FEES: FOR PLAINTIFF
Washington state intermediate appeals court rules that it was not an abuse of discretion to award $9,920 in attorneys' fees to plaintiff in excessive force claim who was awarded only $1 in nominal damages.
A man was a passenger in a car involved in a high-speed chase with police vehicles. During the chase, the passenger made several attempts to get the driver to stop the car. When the vehicle finally stopped, he got out of it. He later claimed that one of the officers hit him without provocation and injured him, slamming his face down to the concrete. The officer asserted that the passenger was swinging at him and resisted attempts to be subdued. The passenger was arrested for obstructing an officer and resisting arrest.
He sued the officer and city for violation of his federal civil rights, including claims for false arrest and excessive force. A jury returned a verdict in favor of the city on all claims and in favor of the officer on all claims except excessive force. The jury awarded no damages on the excessive force claim, however, finding the damages to be zero. The trial court then awarded the plaintiff $1 in nominal damages and 50% of a requested $19,840 for attorneys' fees ($9,920).
An intermediate Washington state appeals court upheld this award, rejecting arguments that the attorneys' fee award was an abuse of discretion. Under Farrar v. Hobby, 506 U.S. 103 (1992), a party that receives nominal damages is a prevailing party, but is not always entitled to an award of attorneys' fee. In some circumstances, Farrar holds, it may be an abuse of discretion to award attorney fees to a plaintiff who seeks compensatory damages, but receives only nominal damages.
In this case, the appeals court noted, the jury found that the officer used excessive force, but assessed the damages at zero. The trial judge "determined that there was a public purpose in this litigation" and that the plaintiff's "legal victory was not too insignificant to justify an award of attorney fees against the City." Ermine v. City of Spokane, #18253-3-III, 996 P.2d 624 (Wash. App. 2000).
Text: <http://www.wa.gov/courts/>. [Cross- references: Assault and Battery: Physical; Damages: Nominal].
DEFENSES: FUGITIVE DISENTITLEMENT
Plaintiff's continuing status as a fugitive required the dismissal of his federal civil rights lawsuit under the "fugitive disentitlement" doctrine.
A Wisconsin man who had served as a confidential informant filed a federal civil rights lawsuit claiming that 28 federal, state, and local law enforcement officers were engaged in a conspiracy to deprive him of his civil rights in retaliation for his having reported their alleged misconduct to their superiors, and for insisting that they investigate drug offenses that he claimed to have discovered.
Among the retaliatory acts that he claimed they engaged in were inducing a woman to accuse him of stalking her and to have her obtain an injunction against him and then accuse him of violating it. This led, he claimed, to his being prosecuted and convicted for criminal contempt and related offenses. He served a brief jail term and then, while on probation, was "falsely accused of disorderly conduct." He claimed to fear that his probation would be revoked and that he would be recommitted to jail and "there murdered either by the defendants or by drug criminals whom the plaintiff had brought to justice during his time as a confidential informant--and from whose wrath the defendants, of course, refuse to protect him."
He therefore fled the state and became, and remains, a fugitive from justice with two arrest warrants outstanding against him, one for disorderly conduct and the other for violating the terms of his probation. A federal appeals court, upholding the dismissal of his federal civil rights lawsuit, held that the plaintiff's status as a fugitive justified the immediate dismissal of his suit under the "fugitive disentitlement" doctrine, as most recently restated by the U.S. Supreme Court in Degen v. United States, 517 U.S. 820 (1996). His fugitive status placed him "entirely beyond judicial control," which was a situation "severely prejudicial to his adversaries" in the case.
One who escapes from custody may sometimes invoke a defense of duress or necessity by arguing that they had to escape in order to save their life from a fellow prisoner who prison or jail authorities refused to protect them from. This, however, is only a defense in a prosecution for escape after a prisoner returns to custody, and presupposes that the prisoner is no longer a fugitive. Such fugitives are required to surrender as soon as they reach a place of safety. Sarlund v. Anderson, #99-2116, 205 F.3d 973 (7th Cir. 2000).
DEFENSES: QUALIFIED (GOOD-FAITH) IMMUNITY
There was a factual issue as to whether three plainclothes officers had reasonable suspicion to conduct an investigatory stop of the occupants of a car when they thought the occupants acted "nervous"; officers were entitled to qualified immunity, however, on excessive force claims based on their firing back after shots were fired at them.
Three African-American plainclothes officers, part of a street crimes unit, were on their way to receive their daily work assignments, traveling together in an unmarked gray Pontiac 6000 car. When they saw a blue Pontiac 6000 car with four African-American males in it traveling in the same direction, they pulled alongside it, allegedly because they thought that its occupants might be fellow unit members, since the Pontiac 6000 "is a popular model of car for police undercover work."
They observed that the occupants of the other vehicle were not fellow officers, and later asserted that the occupants appeared "nervous." The other vehicle turned off into the parking lot of an auto repair shop where they were going to check on the status of a motorcycle being repaired. The officers also went into the parking lot, allegedly suspicious that the blue Pontiac had been stolen. They positioned their vehicle in a manner that would impede the other vehicle from leaving. The officers exited their vehicle and inspected the blue Pontiac.
A two-car wreck at a nearby intersection caused loud noise, in response to which the occupants of the other vehicle and some of the employees of the auto shop exited the building. The officers drew their guns and allegedly yelled at everyone to get back inside the shop and lie down on the floor. They also allegedly did not display badges or identify themselves as police officers.
A Caucasian male auto mechanic, believing that the officers were armed robbers about to harm the auto shop's occupants, and licensed to carry a concealed weapon, drew a handgun and fired three rounds at one of the officers, hitting him twice. This officer then fired a number of shots towards the shop, despite the fact that this mechanic was no longer in view. One of these shots hit one of the occupants of the other vehicle in the leg as he lay on the ground unarmed. Another officer fired two shots, one of which hit the sidewalk and then injured another one of the occupants of the other vehicle as he crawled on the ground. This individual subsequently died of his wounds. The estate of the deceased man and two of the other occupants of the other vehicle sued the three officers and the city, alleging that the investigatory stop was illegal and that excessive force was used.
Examining qualified immunity claims by the officers, a federal appeals court noted that the plaintiffs' version of the incident, if believed, showed no arguable reasonable suspicion justifying an investigatory stop. Their vehicle obeyed all traffic rules, they exhibited no nervousness, and they turned normally into the parking lot because they reached their destination, parking their vehicle in a normal and lawful manner. When they exited the building in response to a loud noise, they were "approached by three unidentified, gun-toting, blue-jean clad strangers yelling obscenities and ordering them to get on the ground," and believed that they were being robbed.
However, there was a factual issue as to whether or not there was reasonable suspicion for the investigatory stop, since the officers argued that the plaintiffs acted nervous, refused to make eye contact with them, and took "evasive action by turning abruptly into a side street." Further, the parked blue Pontiac "had the look of a stolen car rapidly abandoned because a door was ajar with an item of clothing hanging outside." The officers also claimed that their badges were visible on the outside of their clothing, and that one of them identified himself as a police officer.
If the stop was illegal, the court reasoned, then there was no basis for the use of any force, and the excessive force claim is "subsumed in the illegal stop or arrest claim." On the other hand, if the stop was legal, then the threat of force in drawing weapons and ordering the plaintiffs to lie on the ground was not clearly excessive, and the officers would be entitled to qualified immunity.
The court further found that the officers were entitled to qualified immunity, if the stop was legal, for firing back after shots were fired at them. The court ordered further proceedings to resolve the factual issue of whether the stop was supported by reasonable suspicion. Jackson v. Sauls, #98-8980, 206 F.3d 1156 (11th Cir. 2000).
Text: <http://www.law.emory.edu/11circuit/index.html>. [Cross-references: Firearms Related: Intentional Use; Search and Seizure: Vehicle].
DEFENSES: STATUTE OF LIMITATIONS
California's one-year statute of limitations was tolled in federal civil rights lawsuit over search warrant obtained with false statements during the entire pendency of state and federal prosecutions against the arrestee; California tolling statute applied to federal prosecutions despite its language only mentioning proceedings in state court.
A city police officer in California submitted an affidavit for a search warrant for a man's home, vehicle, computer, and private papers. Based on items that were seized pursuant to the search warrant, a felony complaint was filed by the state against the man, and the state charges were later dismissed in favor of a federal indictment. During a hearing in the federal case, the judge determined that the affidavit contained false statements made either intentionally or in reckless disregard of the truth, and that the remainder of the warrant did not demonstrate probable cause. All of the evidence was therefore suppressed, and the indictment ultimately dismissed.
The arrestee then filed a federal civil rights lawsuit against the officer for obtaining the search warrant. The search warrant was executed on July 19, 1996, and the federal civil rights lawsuit was filed on January 3, 2000. The defendant officer moved to dismiss the lawsuit under an applicable California one year statute of limitations for personal injury.
The trial court rejected this argument. It found that the one-year statute of limitations was tolled (extended) while the state and federal prosecutions were pending against the plaintiff. Because all but one-hundred and fifty-one days between the date of the execution of the search warrant and the filing of the lawsuit were subject to tolling, the lawsuit was filed in a timely manner. The court found the California "tolling" statute applicable to the federal prosecution even though the statute itself only refers to prosecutions before state courts. Harned v. Landahl, 88 F. Supp. 2d 1118 (E.D. Cal. 2000).
Wisconsin officer could be liable for transporting Illinois arrestee to Wisconsin without complying with applicable extradition procedures.
A man was arrested in Illinois by police officers acting on the basis of information received from Wisconsin police concerning a murder there and the existence of an arrest warrant for the suspect. A Wisconsin police officer came to the police station in Illinois where the man was being held and removed the man, in handcuffs, to Wisconsin.
He allegedly did not wait to get permission from the Illinois officers to remove the man, did not advise him of his extradition rights, and allegedly promised him that he would be returned to Illinois if he would simply accompany him to Wisconsin and "make a statement."
Once in Wisconsin, the arrestee was asked to sign a statement that he had returned to Wisconsin voluntarily, but it made no mention of extradition rights or of an agreement by the arrestee to waive such rights. He was held in jail in Wisconsin for seventeen days, and then was released without being charged.
He sued the Wisconsin officer, alleging that his constitutional rights were violated when he was transported in violation of applicable extradition procedures. A federal trial court rejected the defendant officer's motion for summary judgment and found that he was not entitled to qualified immunity.
At the time of the incident, February of 1998, it was clearly established that an accused person has a "constitutional right to have governmental officials comply with extradition procedures, and that agents of a demanding state could be held liable for depriving an accused of extradition rights if they caused or participated in the deprivation." Buchanan v. City of Kenosha, 90 F. Supp. 2d 1008 (E.D. Wis. 2000).
FALSE ARREST/IMPRISONMENT: NO WARRANT
Similarity between teenage driver's description (and the description of his vehicle) and that of a suspect sought for assault provided officer with a basis to detain him for investigation; victim's positive eyewitness identification of driver as the person who had assaulted him provided officers with probable cause for an arrest, even though identification later turned out to be mistaken.
A group of teenagers harassed a man and his two daughters just outside a store. The encounter ultimately ended after one of the male teenagers struck the man's vehicle with a flashlight he had been waving at the man during the confrontation. The teenager then returned to his car and left the scene. An officer responding to a radio bulletin about the incident stopped a vehicle which appeared similar to that described in the bulletin. While the license plate number was not exactly the same as that contained in the radio bulletin (containing the number 671 rather than 651), it was similar enough that the officer believed that a stop was warranted. The driver of the vehicle removed a stocking cap from his head, which turned out to bear a Nike symbol on it, as did a cap worn by the sought assailant.
The man who had faced the harassment soon arrived on the scene, brought there by another officer, and positively identified the driver as the person who had threatened him. The driver was arrested and charged with assault and criminal damage to property. these charges were later dismissed. The arrestee then sued the city and three officers for false arrest and imprisonment in violation of his civil rights.
The trial court granted the defendants' motion for summary judgment. The officer certainly had sufficient reasonable suspicion to make the initial investigatory stop of the vehicle. While there were minor differences between the description of the suspect sought and the driver of the vehicle (such as 2 inches of height), these were sufficiently slight so as to further justify the investigatory stop. The driver was a teenage male who, like the suspect sought, was wearing a blue and white winter jacket and a stocking cap with a Nike emblem.
The car was spotted by the officer within blocks of the scene of the assault only minutes after the incident. Once the victim of the assault arrived on the scene, his positive identification of the plaintiff as the suspect would give a reasonable police officer sufficient probable cause to arrest the plaintiff. While the plaintiff was "the unfortunate victim of a mistaken identification," this did not alter the fact that the officers had probable cause to make an arrest at that time. Meinert v. City of Prairie Village, Kan., 87 F. Supp. 2d 1175 (D. Kan. 2000).
City hall steps were a "traditional public forum" on which anti-abortion protester had a right to demonstrate unless he impeded access to the building or violated a reasonable time, place, and manner restriction; jury should have been instructed that he had this right to demonstrate there and should not have been allowed to decide a legal issue of whether the officers were entitled to qualified immunity for arresting him.
An anti-abortion protester was arrested in a Michigan city for refusing a police order to move from the steps of city hall and for "obstructing passage to a public building." He sued the city and arresting officers, arguing that the arrest violated his First Amendment rights of freedom of speech, assembly and religion, as well as constituting an unlawful arrest. A jury rejected these claims.
A federal appeals court ruled that, in the absence of a "showing that the steps of this public building have been traditionally restricted," it would hold that the steps of the city hall "are a traditional public forum, and that expression there cannot be banned absolutely." Reasonable time, place, and manner regulations, however, are permissible.
The issue of whether the plaintiff's presence where he stood, the size of his sign, and other aspects of his behavior constituted impeding access to the city hall "such that it was reasonable to require him to move" was clearly a factual issue for the jury to determine, as was the issue of whether this was a reasonable "time, place, and manner restriction."
But the appeals court noted that the jury "should not have been free to decide" that the plaintiff "had no right to be on the steps and could be ordered off at the whim of someone from City Hall," but should have been instructed that the plaintiff had a right to demonstrate and to be free from arrest for doing so as long as he was not violating a reasonable time, place or manner restriction or impeding access to the building.
The appeals court found that the trial judge improperly submitted the issue of qualified immunity to the jury, which was a question of law that the judge should have decided--i.e., whether "any reasonable police officer" could have believed that their actions did not violate the plaintiff's rights. The appeals court therefore granted a new trial.
The appeals court upheld, however, the trial court's dismissal of all claims for punitive damages, noting that the arrest, even if determined to be improper, "was handled in a highly relaxed and cordial fashion, ending in" the plaintiff's release on his own recognizance, and his delivery, courtesy of one of the officers, to his own vehicle so that he would not be late for work. Pouillon v. City of Owosso, #98-1967, 206 F.3d 711 (6th Cir. 2000).
Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-references: Defenses: Qualified Immunity; False Arrest/Imprisonment: No Warrant].
Law enforcement officials had probable cause to pursue prosecution of man for allegedly murdering his wife; despite jury acquittal on criminal charges, he could not recover damages on a malicious prosecution theory.
A man's wife died from a gunshot wound and he was prosecuted by the county for her murder and acquitted by a jury. The husband sued various law enforcement defendants, alleging a conspiracy to maliciously prosecute him led by an officer of the county sheriff's office.
The trial court granted summary judgment to the defendants, finding no evidence of malicious prosecution. A malicious prosecution must be one without probable cause which is instituted or continued maliciously. The court found that the following actions by defendants were not sufficient to show malicious prosecution:
* searching out a fourth pathologist to render an opinion as to whether the wife's death was suicide or homicide when it appeared that the opinions of the first three pathologists would be inadequate to pursue a prosecution;
* an officer allegedly stating to this pathologist that the defendant had been indicted when he had not;
* conducting an "incomplete" investigation into the plaintiff's finances, resulting in the determination of a possible "financial motive" for a homicide, since the plaintiff himself admitted to a large amount of debt before the investigation was cut short;
The court concluded, based on its review of the record, that there had been probable cause to try the plaintiff for the murder of his wife, barring any claim for malicious prosecution, no matter what the outcome of the prosecution had ultimately been. Nugent v. Hayes, 88 F. Supp. 2d 862 (N.D. Ill. 2000).
NEGLIGENCE: VEHICLE RELATED
Officer and city were not entitled to immunity for injuries to pedestrian struck by officer's vehicle as he followed speeding motor vehicle; officer's actions did not qualify as "pursuit" as speeding motor vehicle was not attempting to flee officer.
A New Jersey police officer on routine patrol made a U-turn and allegedly activated his vehicle's overhead lights when he spotted a van which was speeding. He followed the van, and noticed a pedestrian crossing the street at an intersection. While the officer said he activated his siren to attract the pedestrian's attention, he could take no evasive action due to traffic coming from the other direction and obstructions on his right. The officer's vehicle therefore struck the pedestrian, who sustained a fracture of his right leg and two fractures of his cervical vertebrae.
The injured pedestrian claimed that he had heard no siren, and that the officer's overhead lights were not on. He also asserted that he was crossing the street with a green light in his favor, contrary to the officer's statement that he was crossing against a red light. He sued the officer and the city that employed him, seeking damages for negligence.
New Jersey state law provided for absolute immunity for police for injuries sustained by third persons due to vehicular pursuits, whether the injuries were caused by the pursued or the pursuer, with the only exception being for "willful misconduct."
In this case, an intermediate appeals court ruled, the officer and city were not entitled to this immunity, since the officer was attempting to close the gap on a speeding vehicle that was not attempting to flee. Under these circumstances, the officer was not engaged in the "pursuit" of a fleeing person, as required to be entitled to the immunity.
Pursuit, as defined by a state police vehicular pursuit policy is an "active attempt by a law enforcement officer operating a motor vehicle and utilizing emergency warning lights and an audible device to apprehend one or more occupants of another moving vehicle when the officer reasonably believes that the driver of the fleeing vehicle is aware of the officer's attempt to stop the vehicle and is resisting apprehension by increasing vehicle speed, ignoring the officer or otherwise attempting to elude the officer."
Because the court found that the record did not establish that the officer was engaged in the pursuit of a fleeing person, it overturned summary judgment for the officer and the city, reinstating the lawsuit. Torres v. City of Perth Amboy, 748 A.2d 125 (N.J. Super. A.D. 2000).
Text: <http://lawlibrary.rutgers.edu/search.html>. [Cross-references: Defenses: Official Immunity; High Speed Pursuit].
Plaintiff in false arrest/excessive force case could not discover personal information about officers such as their residence address, social security numbers, past hospitalizations, and children, as these were not relevant to the case; information concerning past complaints against them, however, was discoverable.
An Indiana woman who was arrested by officers at a hospital on charges of disorderly conduct and resisting arrest sued them for false arrest and excessive use of force. In the course of the litigation, she asked the defendant officers to answer written interrogatories, several of which they objected to.
She then asked the trial judge to compel answers concerning two categories of information: 1) private information about the officers and their families, and 2) information relating to the defendants in their professional capacities.
The trial court ruled that the questions concerning the officers' social security numbers, residence addresses, and children had no relevancy to the issues in the case, and that answers to these questions would, therefore, not be compelled. The court also rejected questions concerning past hospitalizations of the officers and/or any medications they had taken over the past ten years, since there were "no issues" in the complaint or raised by the defendants' answers that "places the defendants' physical or mental conditions at issue."
In contrast, the court found that questions about one officer's training and education was "clearly relevant", and that one officer's response to a question asking him to describe the arrest and the circumstances surrounding it was inadequate when all he did was attach a copy of the arrest report to the interrogatories. "His perception of the incident is not included in the incident report," which was prepared by another officer. The trial judge also ordered the defendants to release the names of individuals who had lodged past complaints against the defendant officers. The fact that this information might not be part of the "public record" under Indiana state law did not mean that it was not discoverable as relevant evidence under federal discovery rules.
The court did reject, however, a demand for information regarding complaints filed against other current or former police officers not involved in this arrest. Such information would only be relevant if the city were a defendant in the case, for purposes of attempting to show an official policy or custom on the part of the city. Scaife v. Boenne, 191 F.R.D. 590 (N.D. Ind. 2000).
Officer's unsigned and unsworn memorandum, prepared for police department's legal section, was inadmissible hearsay which was improperly relied on by trial judge in granting summary judgment in malicious prosecution case brought by a member of a community police monitoring organization who was issued a citation for following a police vehicle in which two members of her group were being transported following their arrest.
A member of a community organization called "Copwatch," which was formed to monitor police activities in Columbus, Ohio, observed two members of his organization being arrested by officers. She began following the vehicle in which the arrestees were being transported, and she was subsequently stopped and issued a citation for following near an emergency or safety vehicle traveling in response to an alarm, in violation of a city code. This citation was later dismissed.
She sued the officer who issued the citation and the city, arguing that these actions constituted malicious prosecution and a violation of her First and Fourth Amendment rights. The trial court granted summary judgment to the defendants, finding that the officer presented evidence showing that he did not issue the citation with malice.
An intermediate Ohio appeals court found that the trial judge had improperly considered an "unsigned and unsworn memorandum" prepared by the officer in granting the summary judgment. The defendants had argued that this memorandum, describing the circumstances of the issuing of the citation, should be considered based on exceptions to the hearsay rule for public records or business records.
The appeals court found that neither exception applied. Even if the memorandum qualified as a "public record," it lacked "trustworthiness," as it was "prepared by someone who had a strong personal interest in the matter," the officer who issued the citation. In order to meet the requirements of a "public record," the recorder of the information must be "under a duty to report facts objectively and accurately without bias or self-serving averments."
The memorandum failed to qualify as a "business record" also, both because it was not "prepared by a person who was independent of the parties and unaware of the importance of the data contained in the memorandum," and because, far from being recorded in the ordinary course of business, it was "clearly prepared in anticipation of trial" by the officer and given to the legal section of the police department.
Since this memorandum was therefore inadmissible hearsay, it was improper to rely on it in granting summary judgment. The appeals court also found that there was a genuine issue of fact as to whether the officer had probable cause to issue the citation, and ordered further proceedings on the malicious prosecution claim. Sikora v. Gibbs, No. 98AP-655, 726 N.E.2d 540 (Ohio App. 1999). [Cross-reference: Malicious Prosecution]
PUBLIC PROTECTION: ILL PERSONS
Officers' alleged failure to provide transportation to hospital for a woman having a heart attack, and blocking of the road to the hospital with police vehicles did not "shock the conscience" when they were searching for shooting suspects and attempting to secure a crime scene at the time.
A Philadelphia woman filed a federal civil rights lawsuit against the city, alleging that while she was having a heart attack, police officers failed to transport her to the hospital and blocked the road with parked police cars preventing someone else from driving her to the hospital. She had called 911 after encountering a man inside her home pointing a gun at her. When she ran outside, she observed that there was a multi-vehicle accident at the corner, and walked towards it because there were five police vehicles on the scene.
She was told that there had been a shooting, and the officers searched her house after she explained she had encountered the armed man. As she returned to her home, she began to experience chest pains and shortness of breath, and explained to an officer that for that reason she could not go with him to the station to make a statement.
A neighbor allegedly repeatedly asked officers if they could take the woman to the hospital, and the woman herself, stating that she believed she was having a heart attack, also made the same request. The neighbor then allegedly offered to drive the woman the two blocks to the hospital, but as unable to do so because the street was blocked by police cars. The neighbor then walked to the hospital with the woman. As a result of the heart attack, the plaintiff suffered permanent heart damage and must take heart medication for life. Her lawsuit claimed that the officers' actions delayed her treatment and caused her condition to worsen.
The trial court granted summary judgment to the defendants. The court ruled that the officers did not violate the plaintiff's substantive due process rights by failing to transport her to the hospital or by blocking the road. At the time, the officers were searching for shooting suspects and trying to secure a crime scene. Under these circumstances, their failure to provide transportation to the plaintiff or to allow access to the roads did not "shock the conscience."
The court also rejected claims that the plaintiff's injuries were caused by a municipal policy or by inadequate training of the officers. Cannon v. City of Philadelphia, 86 F. Supp. 2d 460 (E.D. Pa. 2000).
SEARCH AND SEIZURE: HOME/BUSINESS
Officers were not entitled to qualified immunity when they obtained search warrant for couples' residence based on an affidavit that merely stated that they were conducting a "death investigation" of a five-year-old girl's death, without any facts indicating that there was a suspicion of sexual abuse or any other crime.
After a five-year-old girl was pronounced dead at a hospital, doctors began to suspect that the child had been sexually abused, based on some possible lacerations and swelling of her rectum and vagina. One of the emergency room physicians conveyed this information to a detective investigating the child's death, and the child's body was shown to officers.
One officer submitted an affidavit for a search warrant which stated that the cause of the child's death was "unknown at this time," and that he "hoped" that the warrant would be signed "to look for any signs of foul play." The affidavit did not mention any of the suspicions about sexual abuse and merely stated that the police were conducting a "death investigation."
The warrant was approved and an officer standing by at the residence was told that the warrant had been approved and that an investigation of sexual abuse was being conducted. He entered and conducted a search. He later was joined by another officer who had reviewed the warrant and accompanying affidavit. During the search, a number of pornographic video tapes and sexual "toys and devices" were discovered, including some homemade videotapes showing the wife of the couple engaging in sexual relations with various men. They also discovered a number of address cards "rating" the sexual performance of some of these men.
A second search warrant was then obtained, which was directed at the seizure of a videocamera and the videotapes that were uncovered during the first search. The affidavit for the second warrant did recite the suspicion concerning sexual abuse of the child and the basis for it, including the doctor's statements concerning trauma to the child's vagina and anus, and the fact that the child had slept in the same bed as her parents the night before.
An autopsy later determined that the child died of natural causes and that there were no indications of sexual abuse. The vaginal and anal swelling which the emergency room staff saw "was actually the result of the trauma which the body normally experiences in death." The girl's parents sued the officer who obtained the first warrant, and the two officers who carried out the two searches, contending that they did so without probable cause.
The trial court denied a motion for qualified immunity to the officer who obtained the first search warrant, since no indication that he had probable cause to believe that any crime had been committed appeared in the affidavit for that warrant. It merely stated that the officer wanted to investigate the child's death, without any statement of the suspicion of sexual abuse or the basis for it. The first officer who entered the residence, who did so without seeing the affidavit or warrant, was entitled to qualified immunity however, since he acted in good faith on the statements of others that this was a sexual abuse investigation and that a search warrant had been properly issued.
The officer who later joined him in that first search, however, was not entitled to qualified immunity. Having reviewed the affidavit and search warrant, which were utterly devoid of any statement which would support probable cause to believe that a crime had occurred, he could not reasonably believe that the warrant was sufficient to authorize a search. The second warrant, however, since it stated the specific facts concerning the suspicion of sexual abuse, was supported by probable cause. The fact that the doctors who made the statements relied on turned out later to have been mistaken did not alter the existence of probable cause at the time. Myers v. Medical Center of Delaware, Inc., 86 F. Supp. 2d 389 (D. Del. 2000). [Defenses: Qualified Immunity].
Passenger strip searched after his arrest when drugs were found in car trunk was entitled to $25,000 in damages when strip was not based on reasonable suspicion; jury's initial award of $125,000 for emotional distress was excessive.
A passenger in a car stopped by a New York state trooper was arrested after drugs and a hypodermic needle were discovered in the car's trunk. When he was taken to the police barracks, the arresting officer conducted a strip search of him in a bathroom, asking him to bend over and spread his "rectum cheeks," and then allegedly "touching him." The arrestee said that the officer "kind of spread it a little further." The passenger later sued the officer for improperly strip searching him. The jury awarded him $125,000. The trial court upheld the finding that the officer did not have a reasonable basis to conduct the strip search, since there was evidence which the jury could use to conclude that the driver of the stopped vehicle had acknowledged that the drugs and hypodermic needle were his. Additionally, both troopers present on the scene testified that it was their standard practice where one occupant of an automobile claims ownership of drugs found in a common area of the car, to let other occupants leave. The court did find, however, that the $125,000 in damages awarded for emotional distress was excessive and should be reduced to $25,000. Kelleher v. N.Y. State Trooper Fearon, 90 F. Supp. 2d 354 (S.D.N.Y. 2000).
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Buchanan v. City of Kenosha,
90 F. Supp. 2d 1008 (E.D. Wis. 2000).
Cannon v. City of Philadelphia, 86 F. Supp. 2d 460 (E.D. Pa. 2000).
Ermine v. City of Spokane, 996 P.2d 624 (Wash. App. 2000).[99-100]
Harned v. Landahl, 88 F. Supp. 2d 1118 (E.D. Cal. 2000).[102-103]
Jackson v. Sauls, 206 F.3d 1156 (11th Cir. 2000).[101-102]
Kelleher v. N.Y. State Trooper Fearon, 90 F. Supp. 2d 354 (S.D.N.Y. 2000).
Meinert v. City of Prairie Village, Kan., 87 F. Supp. 2d 1175 (D. Kan. 2000).
Myers v. Medical Center of Delaware, Inc., 86 F. Supp. 2d 389 (D. Del. 2000).[109-110]
Nugent v. Hayes, 88 F. Supp. 2d 862 (N.D. Ill. 2000).[105-106]
Pouillon v. City of Owosso, #98-1967, 206 F.3d 711 (6th Cir. 2000).[104-105]
Sarlund v. Anderson, #99-2116, 205 F.3d 973 (7th Cir. 2000).[100-101]
Scaife v. Boenne, 191 F.R.D. 590 (N.D. Ind. 2000).[107-108]
Sikora v. Gibbs, No. 98AP-655, 726 N.E.2d 540 (Ohio App. 1999).
Smith v. Village of Hoffman Estates, No. 97 L-605, U.S. Dist. Ct. (N.D. Ill.),
June 27, 2000, reported in Chicago Tribune, Sec. 2, p. 1 (June 28, 2000).
Torres v. City of Perth Amboy, 748 A.2d 125 (N.J. Super. A.D. 2000).[106-107]
Page numbers in [brackets] refer to the print edition.
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