June, 2000 web edition

Deputy properly used deadly force against man advancing on him with a piece of concrete in his hand; sheriff's failure to train deputies in the use of deadly force against "crazy" people was no basis for liability when general policy on use of deadly force was correct and no showing of a prior problem in this area was shown; basis for exclusion of expert witness was erroneous, but jury did not need expert help to conclude that deputy acted reasonably.

            A deputy sheriff responded to a report that a man was shoplifting, "acting crazy," and fighting with a store's employees. The suspect fled upon the deputy's arrival, but later turned and (with his dog) confronted the deputy, who pepper sprayed the two of them and told the man that he was under arrest. The man again fled, but then stopped and picked up a chunk of concrete and advanced toward the deputy, who drew his pistol and told him to put the concrete down. The deputy began to move back, but when the man was within five to ten feet of him, still carrying the concrete, he shot and killed him.

            A federal civil rights lawsuit by the surviving family and the estate of the decedent claimed that the sheriff violated the decedent's rights by failing to train deputies on how to deal with irrational people. While the sheriff's department instructs its officers that they are not to use deadly force unless in imminent danger of death or great bodily harm, no specific instructions were issued with regard to "the use of force against people who appear to be crazy."

            A federal appeals court upheld a directed verdict for the sheriff on this issue. "A failure to instruct police officers can, it is true, exhibit a deliberate indifference to the danger that armed police can pose to the constitutional rights of citizens," the court acknowledged. A clear case would be a failure to instruct the police that they are not to use deadly force except to prevent a killing, or the infliction of other great bodily harm." But "failing merely to instruct police on the handling of dangerous people who appear to be irrational cannot amount to deliberate indifference, at least on the facts presented in this case."

            The announced policy of the sheriff was that deputies were not to use deadly force unless they or other persons were threatened by death or great bodily harm, "and this policy covered the case of the crazy assailant, giving him all the protection to which constitutional law entitled him." It might be "desirable to take special measures to render such a person harmless without killing or wounding him," but "if so the failure to adopt those measures would not be more than negligence, which is not actionable under section 1983."

            The appeals court speculated that if the county "had seen a rash of police killings of crazy people and it was well understood that these killings could have been avoided by the adoption of measures that would adequately protect the endangered police, then the failure to take these measures might, we may assume without having to decide, be found to manifest deliberate indifference to the rights of such people. But the plaintiffs made no effort to establish the premises of such an argument."

            Upholding a jury verdict in favor of the deputy, the appeals court also found that the trial judge had given an improper reason for the exclusion of an expert witness that the plaintiffs proposed to call. The witness, who is a criminologist and former Chicago police official, had "investigated and made recommendations concerning numerous complaints of excessive force lodged against" police officers, which "equipped him, one might have thought to opine responsibly on the proper handling of a person who was behaving as" the decedent was. The judge ruled that the witness was incompetent to testify because he was not an expert on the "rather esoteric issue" of "the use of excessive force against a crazy person."

            The appeals court noted that the decedent's actual mental state was not the issue, but rather whether the deputy reasonably believed that the decedent posed a threat of death or serious bodily injury to him. The court found the exclusion of the witness ultimately proper on other grounds, however, since the jury "needed no help" from an expert witness in deciding whether the deputy acted reasonably. The decedent's behavior was "unambiguously dangerous," and the jury could decide whether it was sufficiently "lethal and imminent to justify the use of deadly force" without assistance from an expert.

            The appeals court also declined to overturn the jury verdict on the basis of problems with the jury instructions which stated that the officer could use deadly force when he "believes" that the suspect's actions places him in imminent danger of death or great bodily harm. While the appeals court agreed that the word "reasonably" should modify the word "believes," it noted that the plaintiffs' lawyer failed to explain to the trial judge what was wrong with the instruction, forfeiting his objection by failing to state its grounds. "We add that the incorrect instruction could not have made a difference to the outcome, since there is no doubt that" the deputy was "reasonable to anticipate that his concrete- wielding assailant posed a potentially lethal danger." Pena v. Leombruni, No. 99-1435, 200 F.3d 1031 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>. [Cross-references: Firearms Related: Intentional Use; Procedural: Evidence; Public Protection: Disturbed/Suicidal People].

Jury properly heard evidence of alleged affair between mayor and arrestee's wife, and trial court properly declined to instruct jury that arrestee had a duty to submit to an arrest without resistance even if it was unjustified; appeals court upholds awards totaling $114,000 against police chief and mayor in lawsuit claiming that improper arrest was made with excessive force based on a purely personal dispute between mayor and arrestee.

            An arrestee in Arkansas sued the city, its mayor, and its chief of police, claiming that he was arrested without probable cause and that excessive force was used against him during the arrest. One of the assertions in the lawsuit was that this was done, in part, on the basis of a personal dispute between him and the mayor, which arose out of an alleged affair between the mayor and the arrestee's wife.

            The arrest took place after the arrestee and the mayor had an argument on the street. The arrestee later claimed that the mayor had "almost" run him over with his vehicle, and had made an "obscene gesture" at him, taunting him "about the affair" he was allegedly having with the arrestee's wife. The arrestee, in turn, drew his pocket knife, and without opening the blade, banged it on the window of the mayor's truck. The mayor allegedly ordered the police chief to arrest the man for damaging his truck, and the arrest was made, with the mayor participating in it and allegedly tightening the handcuffs around the arrestee's wrist so tightly that it pinched a nerve and drew blood.

            An altercation then took place where the arrestee allegedly kicked at the mayor and the mayor threw the arrestee to the ground where he and the police chief "pinned" him and the mayor allegedly choked him until he temporarily lost consciousness. The arrestee was acquitted of charges of assault, disorderly conduct, and resisting arrest.

            A jury awarded the plaintiff $12,000 in compensatory damages against the mayor and police chief, $100,000 in punitive damages against the mayor, and $2,000 in punitive damages against the police chief.

            A federal appeals court upheld this award. It rejected the argument that the defendants were entitled to have a jury instruction that the arrestee had a statutory duty to submit to the arrest without resistance even if the arrest was unjustified, since this was irrelevant to the issue of whether or not the force used in effecting the arrest was unreasonable.

            The court also rejected the argument that evidence of the alleged affair between the arrestee's wife and the mayor should not have been heard by the jury, since this was relevant to the plaintiff's claim that he was illegally arrested with excessive force based purely on a private dispute between himself and the mayor that arose out of the alleged affair. Goff v. Bise, # 98-2849, 173 F.3d 1068 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-references: False Arrest/Imprisonment: No Warrant; Procedural: Evidence].

Federal appeals court upholds $245,000 award of compensatory and punitive damages to three 17- year-old boys, two African-American and one white, on claim that two police officers illegally stopped and searched their vehicle and used excessive force, including pulling and squeezing their testicles, during pat-down search, and were motivated by racial bias in carrying out one-hour stop, search and detention; alleged racial bias was a proper basis for punitive damages award.

            Three 17-year-old boys, two African-American and one white, were driving through a predominantly white city in California adjoining Los Angeles, "happily and quietly celebrating their graduation from prep school" when a police patrol car made a U-turn and began following their vehicle. The white teenager was lying down in the back seat because his was tired, and the officer who began to follow the car later stated that he saw only the two black teens in the front seat.

            The officers later stopped the vehicle, allegedly because of a defective taillight and seatbelt violations. In a federal civil rights lawsuit filed by the three teenagers over the incident, they asserted that the taillight violation was "completely fabricated" and that the officers could not have known that they were not wearing their seatbelts until after stopping the car. Citations for these violations were later thrown out.

            The teenagers were removed from the vehicle at gunpoint and during an ensuing pat-down search, one of the officers allegedly grabbed each boy's testicles, pulling down on and then forcefully squeezing them. A search of the car was conducted, including of the trunk, engine compartment, and glove compartment. An officer opened a box of papers found in the trunk and "rummaged" through them. The stop lasted approximately one hour, and one officer allegedly kept a gun trained on the three youths for most of the stop.

            The lawsuit asserted that the officers illegally stopped the vehicle, conducted an illegal search of the car, and used excessive force in searching the youths. It also claimed that the officers' conduct resulted from racial bias. The jury awarded a total of $245,000 in compensatory and punitive damages against the two defendant officers. Claims against the city and its chief of police were abandoned by the plaintiffs.

            Upholding the award of damages, including punitive damages, against the officers, a federal appeals court rejected the argument that the jury was "unfairly prejudiced, because the plaintiffs 'deliberately dragged the highly emotional specter of racism into the case.'" The appeals court ruled that "racial bias was an obvious and appropriate subject to explore," and that the plaintiffs' counsel could appropriately "tell the jury it could infer racial bias from all of the circumstances."

            "First, proving the officers' actions were racially motivated could explain why they stopped the boys' vehicle without probable cause or reasonable suspicion and also why they used excessive force without cause. Establishing the officers' racial motivation tends to demonstrate why the plaintiffs' testimony, and not the officers' should be deemed credible by the jurors. That is, it explains why the officers might have lied about the events in question. Finally, racial bias was important to proving the defendants conduct was 'malicious, wanton or oppressive or in reckless disregard of the plaintiffs' rights' which, according to the jury instructions, was necessary to the receipt of punitive damages."

            The appeals court stated that "the police officers in this case appear to have chosen the wrong young people." For "no good reason, two police officers stopped their car without probable cause or reasonable suspicion, conducted an illegal search of the vehicle, and used degrading and excessive force on the young boys. Such is not an isolated incident in the Greater Los Angeles area, or across the country." In "recognition of the officers' wrongdoing, the jury awarded the plaintiffs not only compensatory but also punitive damages. The defendants have given us no reason to doubt the correctness of the jury's determination." Price v. Kramer, #97-56580, #98-55484, 200 F.3d 1237 (9th Cir. 2000).

Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-references: Assault & Battery: Physical; Racial Discrimination; Search and Seizure: Person; Search and Seizure: Vehicle].

Prosecutors were entitled to qualified immunity for obtaining search warrants for examination of an auto dealership's records after customer complained that he had not received a rebate he claimed he was entitled to; prosecutors were entitled to absolute immunity from liability for impaneling grand jury and for their subsequent conduct in prosecuting auto dealership employees.

            Nevada county prosecutors obtained two search warrants for an auto dealership's files after allegations by a customer that the dealership had appropriated his factory rebate due on a new car purchase, by allegedly forging his signature on a rebate assignment form.  Hundreds of customer files were seized and examined during two raids. A grand jury was ultimately impaneled and an eighty-one count indictment was returned, charging 17 employees of the auto dealership with 409 felony offenses.

            Before trial, however, a prosecutor voluntarily dismissed most of the charges because there was a "fundamental pleading error" in the indictment in treating accessory suspects as principles. A state court judge then dismissed the remaining charges with prejudice based on what he found to be egregious prosecutorial misconduct. A federal civil rights lawsuit against the prosecutors by the dealership, its owners, and its employees followed.

            The trial court granted the defendant prosecutors qualified immunity on the claims relating to the obtaining of the two search warrants. It also granted them absolute immunity on claims relating to the impaneling of the grand jury and events subsequent to it.

            A federal appeals court upheld this result. It found that the prosecutors acted with objective reasonableness in obtaining the search warrants, rejecting the argument that they omitted material facts from the affidavits offered to support the search warrants which would defeat qualified immunity. They did fail to disclose a state agency's determination that the dealership did not owe a rebate to a customer or that the dealership had voluntarily turned over certain files, or that an investigation of other customers at that point revealed only one other suspect transaction. The agency in question, the court noted, would have reopened its investigation had it known of the alleged forgery of the customer's signature, and the remaining evidence in the affidavit was sufficient to establish probable cause for further investigation.

            Since the county prosecutors had probable cause to impanel the grand jury based on what evidence they had, they were also entitled to absolute immunity from liability for doing so and for their conduct from that point forward. Herb Hallman Chevrolet, Inc. v. Nash-Holmes, No. 97-15275, 169 F.3d 636 (9th Cir. 1999).

Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].

Police officers were not entitled to qualified immunity for arresting female bail bondsman for first-degree burglary and second-degree assault when they ignored exculpatory evidence that bondsman had entered the house after being invited inside by a man she had come to arrest with a valid arrest warrant for failing to appear in court after being bonded out, and that she only wound up macing his grandmother because he used her as a shield while trying to escape arrest.

            A married couple who were both Missouri bail bondsmen went to the home of an arrestee for whom the husband had posted bond. The arrestee ran out of the rear door of the home where the wife stopped him. The arrestee was told that the couple had a warrant for his arrest, to which he replied by asking if he could go back inside the house to inform his grandmother. The wife agreed and followed him into the house. When the grandmother saw them enter, she began screaming and urging the arrestee to run away. The female bondsman attempted to control the arrestee with pepper spray, but he used his grandmother as a shield, and escaped out the back door.

            The bondsmen flagged down a passing police officer as they drove around the area looking for the escapee. The officer told them to continue their search while he went to answer an assault call. The call turned out to be from the grandmother, and he returned and asked the couple to follow him to the police station, purportedly so that he could copy their warrant and bail bondsmen forms. Once there, another officer arrested the female bondsman for first-degree burglary and second-degree assault. These charges were never prosecuted.

            The female bondsman filed a federal civil rights lawsuit against both officers, as well as the city, arguing that she was arrested without probable cause. The trial court denied the defendant officers' motion for qualified immunity, finding that reasonable officers could not have believed that they had probable cause to arrest the plaintiff for the charged crimes.

            A federal appeals court agreed. The court stated that officers contemplating an arrest cannot "disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists." In this case, the arresting officers had information given to them by both the grandmother and the female bondsman. The grandmother claimed that the plaintiff entered the house, tried to grab her grandson, and then maced both him and her.

            The officers, however, also knew that the plaintiff was a bail bondsman with proper identification and authorization papers and a valid arrest warrant. They also had the bondsman's uncontradicted statement that she stopped the subject of the warrant outside the house and identified herself and that he had invited her inside so that he could tell his grandmother he was being arrested.

            The officers also had the bondsman's explanation that the scuffle occurred when the suspect attempted to escape, and that the grandmother was accidentally maced only because her grandson placed her between himself and the bondsman. Under these circumstances, arresting the plaintiff and charging her with the crimes they did, amounted to ignoring "plainly exculpatory evidence" showing that she did not unlawfully enter the house with the intent to commit a crime or attempt to cause or knowingly cause the grandmother physical injury.

            In short, "reasonable officers would not have believed probable cause existed" to arrest the plaintiff for first-degree burglary and second-degree assault" under these circumstances. Womack v. City of Bellefontaine Neighbors, #99-1302, 99-1303, 193 F.3d 1028 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-references: False Arrest/Imprisonment: No Warrant].

Police officer had probable cause to arrest man pursuant to an arrest warrant for robbery when three persons identified him in a photo array; while arrestee had a valid alibi showing that he was not in town at the time of the robbery, documents proving this were not provided until months after the arrest.

            A Georgia police officer obtained an arrest warrant for a man after one witness to an assault and robbery identified his photograph from a photo-array of five men. Three other witnesses stated they could not identify the robber because he was wearing a mask over his face at the time of the robbery. The robbery victim also identified the man from the photo array, based upon the profile and shape of his face. Additionally, an employee of a convenience store located near the robbery identified the man as the person who entered the store on the day of the robbery with a handgun hidden under his shirt.

            The arrestee later produced various records which proved his alibi that he was returning from another state on the night of the robbery, and therefore could not have been the robber. Charges were accordingly dropped. He then sued the officer and the municipality that employed him for false arrest and imprisonment under state law, malicious prosecution, and violation of his federal civil rights.

            An intermediate Georgia appeals court upheld summary judgment for the defendants. The court found that there was probable cause for the arrest at the time that it was made, based on the identification of the plaintiff by no less than three people. Additionally, under state law, no false imprisonment claim could be brought for an arrest made pursuant to an arrest warrant. The court further found that the officer was entitled to qualified immunity on the federal civil rights claim, since the officer had probable cause at the time to belief that the suspect was the robber.

            The arrestee's continued imprisonment for a time following his arrest did not constitute a federal civil rights violation. While he did provide his alibi and his father allegedly told officers the same thing and provided them with certain receipts  in support of that claim, the plaintiff did not point out those receipts in the record or argue how those particular records would have proved he was not in town at the time of the robbery. It was only later that additional materials provided to the prosecutor by the plaintiff's attorney showed the truth of his alibi. Franklin v. Consolidated Government of Columbus, Georgia, 512 S.E.2d 352 (Ga. App. 1999).

Officer was not liable for shooting eleven rounds and killing a 69-year-old man who fired a single shot at deputies after he was awakened at night by three deputies executing arrest warrant on him for misdemeanor property charge; jury should not have been told that the reasons for issuing the warrant were irrelevant, but the remainder of the instructions properly informed them that they could take the totality of the circumstances into account

            A 69-year-old man was awakened at his home in the middle of the night by three deputy sheriffs executing an arrest warrant for misdemeanor property damage. A deputy knocked on the back door. The man came to the door carrying a 16-gauge single-shot shotgun, and this deputy ran to the squad car to radio for assistance. The other two deputies sought cover, and one shined a flashlight on the suspect, telling him to drop the gun. The suspect instead moved away from the house into the yard, and then turned and fired a shot in the direction of one of the deputies. Another deputy, believing that the suspect was now aiming the shotgun at him, fired 11 rounds at him, killing him when two of the shots hit him in the back.

            The decedent's estate filed a federal civil rights lawsuit against the three deputies, asserting that they used unreasonable force, as well as other claims. Only the excessive force claim against the firing officer proceeded to trial and the jury returned a verdict in his favor.

            A federal appeals court upheld this result. The court remained troubled by jury instructions and evidentiary rulings in the case that took a "rather restrictive view of what constitutes the totality of the circumstances" that the jury should consider in determining whether the deputy acted reasonably in using deadly force. "The totality of the circumstances cannot be limited to the precise moment when" the deputy discharged his weapon, the court stated.

            That the decedent fired a shot is a very important factor; "perhaps the jury could easily conclude that it was the controlling factor, but it is not the only relevant factor, in evaluating the constitutionality of" the deputy's response, "which as we have noted was to discharge 11 rounds of ammunition" in the decedent's direction.

            "The trial judge came very closely to improperly restricting what the jury could consider. Objections were sustained to some questions regarding the events giving rise to the warrant," including the fact that it was a misdemeanor charge. The decedent had backed his vehicle into a parked motorcycle and then refused an offer from the motorcycle owner to settle the matter for a few dollars for the gasoline which leaked out of the cycle, and was therefore charged with misdemeanor property damage. The arrest warrant was issued for him when he failed to attend his court appearance on the charge.

            But the jury did hear some evidence about the incident with the motorcycle, "which would allow them to understand that the deputies were not looking for a serial murderer when they went to the farmhouse." They also heard testimony about how the deputies approached the house, how dark it was, and what the decedent's response was. "Because the jury knew in general about the totality of the circumstances, the fact that they did not hear that the warrant was based on a misdemeanor is not reversible error--though we fail to see why this fact was kept from the jury."

            Since the jury had a sufficient basis on which to evaluate the deputy's response to the decedent firing a shot, the evidentiary rulings did not require a retrial of the case. As for the jury instructions, the court ruled that it was not improper to tell the jury that the deputies did not need to use "all feasible alternatives" to avoid the situation which developed in which deadly force could be used. The appeals court did view one of the instructions as incorrect--one stating that "the reasons for issuing the warrant" are "irrelevant." The "reasons for issuing the warrant are part of the facts and circumstances known to" the deputy. But the appeals court found that the remainder of the instructions properly informed the jury that it was to consider the totality of the circumstances and judge whether the deputy reasonably used deadly force based on what he knew at the time he fired. Deering v. Reich, No. 98-2560, 183 F.3d 645 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>.

City ordinance that restricted "focused residential picketing" within 50 feet of a residence, enacted in response to anti-abortion demonstrators at abortion clinic doctor's home, did not violate demonstrator's First Amendment rights because it was content neutral and legitimately aimed at protecting residential privacy.

            A group of anti-abortion protesters filed a federal civil rights lawsuit against a city police chief and the city attorney, seeking an injunction against the use against them of a city ordinance that placed certain restrictions on residential picketing. The group had previously engaged in protests in the vicinity of the home of a doctor who performed abortions at an abortion clinic that they were also engaged in picketing.

            The ordinance in question was passed in response to this picketing, and made it unlawful to engaged in "focused residential picketing" in the street in front of or within fifty feet on either side of a targeted building. "Focused picketing" was defined as picketing "directed toward a specific person or persons." A number of persons were prosecuted under the ordinance, and the anti-abortion group alleged that, as a result of this, and the difficulty they had in interpreting what is and is not prohibited by the ordinance, they "have had to refrain from their protests" in the vicinity of the doctor's residence for fear of being prosecuted under the ordinance.

            The federal trial court ruled that the ordinance in question did not violate the plaintiffs' First Amendment constitutional rights. It was a content-neutral law, which did not change in its application based on the message being conveyed. It served the legitimate and significant governmental interest of preserving the privacy of residential dwellings, and was "narrowly tailored" to serve that interest. Thorburn v. Roper, 39 F. Supp. 2d 1199 (D. Neb. 1999). [Cross-references: Statutes & Ordinances].

City was entitled to summary judgment on arrestee's excessive force inadequate training/discipline claims when he stated, in response to discovery request, that he did not intend to rely on prior incidents of the alleged use of excessive force; further discovery was not warranted before ruling on city's motion for summary judgment when plaintiff did not explain why he had not sought such information before.

            A man arrested in New York on drug charges alleged that officers involved in the raid on his residence assaulted him and beat him with a gun, knocking him down the ground and causing him to hit his nose, despite his lack of resistance to the arrest. Charges against him were later dropped. A federal trial court granted the city's motion for summary judgment, since the plaintiff failed to state a claim for excessive force against the city on the ground of improper training and discipline of officers. 

           While municipal liability requires a showing of an official municipal policy or custom, the plaintiff merely alleged the single incident. Indeed, in response to discovery requests from the city, he stated that he would not "rely upon any prior incidents of alleged police misconduct by named defendants, or by individuals other than named defendants, in support of this case."

            In the absence of any evidence of policies of inadequate training or discipline of officers, the lawsuit against the city could not be pursued. The court also rejected the plaintiff's attempt to request further discovery now to find prior instances of the use of excessive force, since he failed to explain why he could not have previously requested discovery of such information. Further discovery was therefore not warranted before ruling on the city's motion for summary judgment. Nicholson v. Doe, 186 F.R.D. 134 (N.D.N.Y. 1999). [Cross-reference: Procedural: Discovery].

Sufficient evidence existed for a jury to be able to conclude that an "informal" New York City policy existed of driving street artists out of the community; trial court denies city summary judgment in lawsuit brought by artist arrested three times while protesting application of licensing ordinance to artists who sold their work on the street.

            An artist who displayed and sold his work on New York City sidewalks was arrested on three occasions when he objected to enforcement of a city ordinance requiring that street vendors obtain a license. He filed a federal civil rights lawsuit alleging that these arrests were made without probable cause and because he protested the arrest of artists for violating the ordinance, which was later declared unconstitutional as applied to street artists. See Bery v. City of New York, 97 F.3d 689 (2nd Cir. 1996), cert. denied, 520 U.S. 1251 (1997).

            In addition to claims of false arrest and excessive use of force against individual officers involved in the arrests, he claimed that the city had an "informal" policy of denying him and other artists their constitutional rights to sell their paintings on the street without a license.

            Refusing to grant summary judgment to the defendant city, the court noted that the plaintiff "need not prove that the municipality had an explicitly stated rule or regulation; instead a plaintiff may show that the municipality exhibited deliberate indifference to the possibility of such a constitutional violation."

            The court found that there was evidence that city policymakers were pressured by the community to "rid their streets of unlicensed vendors, including unlicensed artists" and the plaintiff and that this was "relayed to" the police precinct there. Additionally, charges were dismissed each of the three times the plaintiff was arrested, and there was evidence that police officers knew and disliked him because of his advocacy activities in challenging the ordinance. "A jury could conclude, [...] that there existed a municipal policy to drive the artists out" of the community. Lederman v. Adams, 45 F. Supp. 2d 259 (S.D.N.Y. 1999). [Cross-reference: First Amendment]

$4.5 million settlement reported in lawsuit brought by former member of the Black Panther Party whose conviction for murder was overturned after he spent twenty-seven years in prison; lawsuit claimed that law enforcement officials hid and/or destroyed wiretap evidence that would have supported his alibi of being elsewhere at the time of the murder.

            The city of Los Angeles and federal government have settled a federal civil rights lawsuit brought over the arrest, prosecution, and imprisonment of a former member of the radical Black Panther Party who spent 27 years in prison for allegedly murdering a 27-year-old schoolteacher on a tennis court in California in 1968. He was arrested in 1970, convicted in 1972, and released in 1997 when a state court trial judge found that prosecutors had withheld disclosure that one of the key witnesses for the prosecution was an F.B.I. informant and a felon.

            The lawsuit contended that the plaintiff was innocent and had been in a different California city for a Black Panther Party meeting when the murder took place and that law enforcement officials had hidden and/or destroyed wiretap evidence that would support that alibi.  Plans for a retrial of the criminal charges in the case were dropped last year based on the age of the case. While the amount of the settlement in the case was not made public, it was reportedly $4.5 million, with $2.75 million from the city of Los Angeles and $1.75 million from the federal government. Pratt v. City of Los Angeles, U.S. Dist. Ct., S.D.Cal., reported in The New York Times, p. A18 (April 27, 2000).

Deputy sheriff in Maryland could proceed with lawsuit against apartment complex owners for injuries suffered as a result of his slip and fall on ice in the parking lot when going to apartment building to serve a subpoena on a tenant; "fireman's rule" did not bar suit and deputy was an "invite" owed a duty of reasonable care.

            A deputy sheriff in Maryland filed a personal injury negligence lawsuit against the owner of an apartment complex and the managing agent of the complex, based on his slip and fall on a patch of ice in the complex's parking lot. The accident occurred as the deputy was going to an apartment to serve a witness with a subpoena in a landlord-tenant lawsuit.

            The trial court granted summary judgment to the defendants, accepting their argument that the officer had assumed the risk of his injury as a matter of law under the common law Fireman's Rule, so that his claim was barred as a matter of public policy. The court also accepted the argument that the officer was a mere "licensee" on the premises, rather than a business "invitee", and therefore was owed no duty other than "to willfully refrain from harming him or not correcting a danger" that it was known would harm him (as opposed to taking reasonable precautions for his protection).

            An intermediate Maryland appeals court reversed, holding that the Fireman's Rule did not apply and that the defendants owed the deputy sheriff a duty of ordinary (reasonable) care.

            Maryland has long recognized the common law "Fireman's Rule," which in some circumstances operates to preclude firefighters and police officers from tort recovery for injuries sustained in the course of their employment. [...] A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence.

            In this case, however, the negligence that allegedly caused the deputy's injury was unrelated "to the situation that required his services." He was injured on account of an allegedly defective condition of the common area parking lot of the apartment complex, across which he walked on his approach to the apartment unit in which he intended to serve the subpoena. "He was not in the process of serving the subpoena when he was injured and his injuries were not brought about by the activity of subpoena serving." The Fireman's Rule was inapplicable, since his injuries "did not arise out of the very occasion for his employment, i.e., the serving of the subpoena."

            The court also rejected the argument that the deputy was a licensee rather than an invitee on the premises. While the "specific task" that he was entering the premises to perform may not have been for the direct benefit of the apartment complex owners or any of the apartment dwellers "as individuals," the "overall public safety benefit conferred by law enforcement officers upon business owners and individuals" conferred a benefit on the apartment owners, their managing agent, their tenants, and their tenant's visitors. "Indeed, it is because they confer a public safety benefit that law enforcement officers and firefighters are privileged to enter upon private property to begin with."

            The deputy was therefore owed a duty of ordinary (reasonable) care to make the property safe. It was for the jury to determine whether this duty had been met or breached. Rivas v. Oxon Hill Joint Venture, 744 A.2d 1076 (Md. App. 2000). [Police Plaintiff: Negligence; Police Plaintiff: Premises Liability].

Couple who were named by sheriff's department personnel as possible suspects in the death of the woman's two-year-old son were not entitled to discovery, in their civil suit against sheriff, of entire investigative file of ongoing homicide investigation, so long as the need for confidentiality outweighed the benefits of disclosure.

            A couple reported the disappearance of the woman's two-year-old son to the police, asserting that he had either walked out of or been abducted from the family's home. A search party found the boy's body the next day under some leaves and other debris in a ravine near the home. An autopsy indicated that the boy had been suffocated. To date, this crime remains unsolved, but the couple was identified by sheriff's department personnel in statements reported in several newspaper articles as suspects in the investigation.

            They filed a lawsuit for defamation, spoilation of evidence and various civil rights violations related to the sheriff's department's investigation, including their initial detention and questioning. They claimed that they were "lured to the police station on false pretenses and then held against their will and subjected to lengthy and aggressive interrogations, during which they were not free to leave," all "without benefit of Miranda warnings."

            In the civil lawsuit, they sought discovery of the sheriff's entire investigative file relating to the child's murder, including their own statements, autopsy reports, scientific testing, descriptions of physical evidence, and witness statements.

            An intermediate California appeals court ordered the trial court to vacate its order compelling production of the investigative file. The court noted that this was an ongoing criminal investigation. "Evidence gathered by police as part of an ongoing criminal investigation is by its nature confidential." The "contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case."

            The court noted that there was a powerful public interest in solving the homicide and bringing the killer or killers to justice. That interest is at risk if "confidential information about the homicide investigation is released to suspects. There is an obvious danger that they may learn crucial information that would enable them to avoid apprehension," or to "invent stories, explain away evidence thus far gathered, and intimidate or otherwise influence potential witnesses."

            The files might be released in the future if it is determined that "there has not been enough progress in the investigation to justify protecting most of the investigative file any longer," such as if the "trail has grown cold and there is no reasonable probability the case will be solved." Accordingly, the appeals court stated that the trial court should reconsider the matter at "reasonable intervals." Even then, "when discovery is permitted, it shall be limited to those documents reasonably necessary to plaintiffs' prosecution of their action." Orange, County of, v. Superior Court of Orange County (Wu), 94 Cal. Rptr. 2d 261 (Cal. App. 2000).

Officers who entered an apartment with an arrest warrant but no search warrant were entitled to qualified immunity from apartment resident's lawsuit claiming illegal search when it turned out that subject of arrest warrant did not reside there, since officers had an objectively reasonable belief that he did.

            Police officers entered an apartment, armed with an arrest warrant but not with a search warrant, seeking the individual named in the arrest warrant, who they had been told was staying in the apartment. When they determined that the person sought was not present, they left. The resident of the apartment sued the officers and the city, claiming that the entry into her apartment without a search warrant constituted an illegal search.

            Granting the defendants' motions for summary judgment, a federal trial court ruled that the officers were entitled to qualified immunity, even if the subject of the arrest warrant did not actually reside in the apartment, when they had an objectively reasonable belief that he was a resident there, rather than just an occasional visitor there. The trial court also found no real evidence that the city had an official policy or custom which caused a violation of the plaintiff's rights. Clayton v. City of Kingston, 44 F. Supp. 2d 177 (N.D.N.Y. 1999). [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].

Routine taping of calls made into and out of police department premises did not violate federal electronic eavesdropping statute even if personal phone calls were recorded and individuals were not told of the taping; law enforcement exception to statute applied; federal statute does not allow lawsuits for violations directly against municipalities.

            Employees and former employees of an Illinois police department, as well as their friends and family members, numbering 63 individuals in all, filed a lawsuit against a former police chief, other former members of the police department, and the city, alleging violations of the federal wiretapping statute, 18 U.S.C. Sec. 2510 et seq. The lawsuit alleged that their personal telephone calls into and out of the department were recorded.

            While the plaintiffs had previously known that calls on most lines were recorded, there was one unlisted number, often used for personal calls, which had been unrecorded originally. The department began recording calls on that line after an investigation about the department's response to a call to that number was "stymied by the fact that the call had not been recorded." The department allegedly did not, however, tell employees, many of whom claimed to have continued to believe that this one line was still unrecorded. The taping was "officially" discovered when one of the defendants, reviewing a tape, heard one of the plaintiffs making derogatory comments about him and complained to the president of the local police union, telling him "in the course of their conversation that all calls" were being taped.

            Upholding judgment as a matter of law for the city and a jury verdict for the other defendants, a federal appeals court ruled that the recording of all calls to and from the police department was a "routine police practice" and therefore took place in the ordinary course of law enforcement officer's duties. Accordingly, an exception to liability under the federal electronic-eavesdropping statute applied, regardless of whether the employees were aware that a particular line was being taped.

            "That personal as well as official calls were made on the line is irrelevant; all employees make personal calls on company phones; if all the lines are taped, as is the ordinary practice of police departments, then the recording of personal as well as official calls is within the ordinary course." If all Congress had cared about "was the protection of privacy it would not have written an exception for electronic eavesdropping in the ordinary course of law enforcement into the statute." Further, the federal statute does not allow for suits against municipalities themselves, the appeals court stated. 18 U.S.C. Sec. 2510(6). Amati v. City of Woodstock, No. 98-2680, 98-2681, 176 F.3d 952 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>.

INDEX OF CASES CITED

Amati v. City of Woodstock, No. 98-2680, 98-2681, 176 F.3d 952 (7th Cir. 1999).[94-95]
Clayton v. City of Kingston, 44 F. Supp. 2d 177 (N.D.N.Y. 1999).[94]
Deering v. Reich, No. 98-2560, 183 F.3d 645 (7th Cir. 1999).[89-90]
Franklin v. Consolidated Government of Columbus, Georgia, 512 S.E.2d 352 (Ga. App. 1999).[88]
Goff v. Bise, # 98-2849, 173 F.3d 1068 (8th Cir. 1999).[84-85]
Herb Hallman Chevrolet, Inc. v. Nash-Holmes, No. 97-15275, 169 F.3d 636 (9th Cir. 1999).[86-87]
Lederman v. Adams, 45 F. Supp. 2d 259 (S.D.N.Y. 1999).[91]
Nicholson v. Doe, 186 F.R.D. 134 (N.D.N.Y. 1999).[90-91]
Orange, County of, v. Superior Court of Orange County (Wu), 94 Cal. Rptr. 2d 261 (Cal. App. 2000).[93-94]
Pena v. Leombruni, No. 99-1435, 200 F.3d 1031 (7th Cir. 1999).[83-84]
Pratt v. City of Los Angeles, U.S. Dist. Ct., S.D.Cal.,
                reported in The New York Times, p. A18 (April 27, 2000).[91-92]
Price v. Kramer, #97-56580, #98-55484, 200 F.3d 1237 (9th Cir. 2000).[85-86]
Rivas v. Oxon Hill Joint Venture, 744 A.2d 1076 (Md. App. 2000).[92-93]
Thorburn v. Roper, 39 F. Supp. 2d 1199 (D. Neb. 1999).[90]
Womack v. City of Bellefontaine Neighbors, #99-1302, 99-1303, 193 F.3d 1028 (8th Cir. 1999).[87-88]