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(Published as VOLUME 2000 NUMBER 327)
Assault and Battery: Physical
Defenses: Governmental Immunity
Defenses: Qualified Immunity
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
Firearms Related: Licenses
High Speed Pursuit
Public Protection: Motorist
Search and Seizure: Home/Business
Index of Cases Cited
ASSAULT AND BATTERY: PHYSICAL
Officers who allegedly choked an arrestee, threw him down the stairs, and stepped on his face were not entitled to qualified immunity from liability; a portion of their actions was captured on videotape and clearly established law gave the plaintiff the right to be free of the alleged misconduct.
A man and his family were evicted from a motel for "loud behavior." An argument between the evicted patrons and motel employees followed, and police were summoned to the scene, arresting the man for disorderly conduct and trespass. He later asserted, in a federal civil rights lawsuit against the officers, that the officers treated him with excessive force, choking him, throwing him down the stairs, and stepping on his face.
The trial denied the officer's motion to grant them summary judgment on the basis of qualified immunity on the plaintiff's claims against them for assault, battery, false imprisonment, false arrest, and violation of civil rights. Upholding this result, a federal appeals court noted that some of the officers' use of force "was captured on videotape."
The plaintiff, the court ruled, "has presented evidence that would allow a reasonable juror to find that" he had been "falsely imprisoned and that the officers had used excessive force against him." Further, at the time of the incident, it was clearly established law "that a person had the right to be free from unreasonable seizures and excessive force." Johnston v. City of Bloomington, #97-4396, 170 F.3d 825 (8th Cir. 1999).
Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Defenses: Qualified Immunity].
Arrestee's conviction for resisting arrest did not bar his claim that officers used excessive force in subduing him.
A New Mexico man was charged with patronizing a prostitute, battery, and resisting arrest, after he allegedly solicited an undercover female officer for sex. He fled in his vehicle, rolled up his car window on an officer's arm, and was subdued after another officer struck him in the face and unlocked the vehicle.
He was found guilty of resisting arrest and acquitted on the remaining charges. An appeal of the conviction is still pending. The arrestee filed a federal civil rights lawsuit asserting that the officers used excessive force against him and beat him repeatedly. The trial court dismissed the lawsuit, reasoning that it essentially challenged the validity of his state court conviction for resisting arrest, and therefore could not be pursued, under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994) until and unless the conviction was overturned.
A federal appeals court disagreed, reinstating the lawsuit. The appeals court noted that the prosecution, in pursuing the resisting arrest charge, relied on a section of the statute that defined "intentionally fleeing" as constituting the offense. Accordingly, the conviction was based on the plaintiff's conduct in fleeing the scene. Therefore, the police officers' actions in arresting him "once they caught up with him simply had no bearing upon his conviction."
A finding that the officers used excessive force against the plaintiff when they finally caught and arrested him would "in no manner demonstrate the invalidity" of his conviction for resisting arrest. Even if the conviction had been based on the plaintiff's alleged action of closing his vehicle's window on the arm of one of the officers, the court noted, the officers would only be justified in using "reasonable force" in response. So in either instances, there was still a factual issue as to whether the officers used excessive force. The conviction could be upheld and a valid claim for use of excessive force cold still be stated. Martinez v. City of Albuquerque, No. 98-2235, 184 F.3d 1123 (10th Cir. 1999).
DEFENSES: GOVERNMENTAL IMMUNITY
City was not immune, under West Virginia statute, from liability for injuries motorist suffered, allegedly caused by officer's parking of his vehicle in a place hazardous to oncoming traffic.
When an officer was investigating slippery conditions on a road, he parked his vehicle below the crest of a hill in an eastbound lane of traffic. A motorist traveling in t hat direction was injured when she slid into the officer's vehicle. In her lawsuit against the city, she claimed that the place in which the officer had parked was unsafe and that it presented a hazard to other motorists.
Overturning summary judgment for the defendant municipality, the West Virginia Supreme Court rejected the argument that the immunity granted in W. Va. Code Sec. 29-12A- 5(a)(5) to cities for the way in which they provide police applied in the case. The court found that the phrase "method of providing police, law enforcement or fire protection" found in the statute referred to the formulation and implementation of policy on how such protections are furnished. The court found that the officer's allegedly negligent conduct took place within the scope of the officer's employment by the city, it was not a result of the way in which a formulated policy was carried out.
Under this reasoning, the city was immune from liability for making decisions about how to furnish police protection, but not when an officer negligently carries out the policies decided on. Westfall v. City of Dunbar, 517 S.E.2d 479 (W. Va. 1999). [Cross-reference: Negligence: Vehicle Related].
DEFENSES: QUALIFIED (GOOD-FAITH) IMMUNITY
Police officer may assert that he had probable cause for an arrest on a "related crime" as a means of asserting a qualified immunity defense in a false arrest lawsuit, even if there was no probable cause for an arrest on the charge initially made; officer did not show, however, that "related crimes" were involved in his arrest of plaintiff for failure to provide his name who was later charged with an assault on a neighbor.
Can a police officer sued for making an allegedly illegal arrest claim a qualified immunity defense by asserting that, while there may not have been probable cause to arrest the plaintiff for the crime charged, there was probable cause to arrest them for a "related offense"? A federal appeals court answered this question "Yes," but found that the officer had not shown that there were "related" crimes in this case.
Officers arrived at the scene of a fight between two neighbors. One of the two men refused to give his name to one of the investigating officers, stating that he had already given his name and address to another officer. He was initially told t hat he was being arrested for failure to provide his name, and then told instead that the arrest was for disorderly conduct. When he asked how he could be charged with disorderly conduct in his own yard when he hadn't "opened my mouth," the officer alleged stated, "Failure to give your name."
The arrestee was later charged with assault and battery on his neighbor and being a disorderly person, but all charges were later dismissed. When he filed a federal civil rights lawsuit, the trial court concluded that the officer had probable cause to arrest him for assault and battery, which was not charged until later, so that he was entitled to qualified immunity on the false arrest claim.
A federal appeals court agreed that a "related crimes" defense could be used by the officer to assert his right to qualified immunity. Two requirements of this defense are that: 1) the crime with which the arrestee is charged with and the crime offered to the court as a justification for the arrest must relate to the same conduct, and 2) the two crimes must share similar elements "or be directed generally at prohibiting the same type of conduct."
In this case, the disorderly conduct charge made by the arresting officer was based entirely on the plaintiff's refusal to cooperate with the officer, rather than arising out of the fight he had engaged in with his neighbor. Therefore, the arrest charge and the assault and battery charge lodged at the police station later "pertained to distinct events involving" the plaintiff's "conduct with different people." Therefore, the "related crimes" defense did not apply.
The appeals court therefore ordered further proceedings on the issue of whether the officer had probable cause to make the arrest for disorderly conduct. Sheehy v. Town of Plymouth, #98-2080, 191 F.3d 15 (1st Cir. 1999).
Text: <http://www.law.emory.edu/1circuit>. [Cross-reference: false Arrest/Imprisonment: No Warrant].
Officer who left the scene after helping man retrieve his radio from ex-girlfriend's auto was not liable for subsequent alleged assault man committed on ex-girlfriend; no liability for inadequate training in absence of a showing of deliberate indifference.
A police officer accompanied a man to the apartment of his ex-girlfriend, in order to assist him in retrieving a radio which was in the ex-girlfriend's auto. After they knocked on the door, the woman gave the two keys to her vehicle. The man took out his radio and spent some time reinstalling his ex-girlfriend's former radio in her vehicle, at her request. The officer was then summoned away for other work. After the officer left, the man allegedly assaulted and battered her, assisted by his mother, who was also on the scene.
injured woman sued the officer, the chief of police, and the city, asserting
that they violated her constitutional rights by failing to protect her
against these assaults. Granting motions by the defendants for summary
judgment, the trial court noted that the facts alleged by the plaintiff
did not show t hat the officer or police department "used their authority
to commit affirmative acts that rendered her vulnerable to a harm that
would not have otherwise occurred." There is, the court reminded,
no general constitutional duty to safeguard members of the public against
It rejected her claim that the police chief and police department showed a deliberate indifference to her constitutional rights by failing to properly train and supervise its officers. Liability for such improper training must be based on a deficiency "so obvious and so likely to result in the violation of constitutional rights that the policy makers can be said to have been deliberately indifferent to the need for proper training." Soltis v. Kotenski, 63 F. Supp. 2d 187 (D. Conn. 1999). [Cross-reference: Administrative Liability: Training].
FALSE ARREST/IMPRISONMENT: NO WARRANT
Positive eyewitness identification of alleged armed robber shortly after robbery gave officer probable cause to make an arrest; no liability for false arrest after charges were later dropped.
An armed robber came into a fast food restaurant, pointing a gun at one of the three employees on duty and telling her to open the store safe. The robber was "eyeball to eyeball" during the robbery, and the robber fled after receiving the money.
A police officer arrived on the scene shortly and took a description from this restaurant employee. The description was radioed to other officers. A K-9 dog picked up a scent and the restaurant and tracked the robber to a particular road. A suspect was later apprehended on an intersecting road. The restaurant employee identified him as the robber when she saw him in the back seat of the officer's patrol car. As the eyewitness's identification was very strong, with no doubt or hesitation, so the suspect was arrested and charged with various offenses. After he spent five and a half months being detained for inability to post bail, the prosecutor dropped all the charges.
The arrestee sued the town for false arrest under state law and the officer for false arrest under 42 U.S.C. Sec. 1983. Rejecting these claims, the trial judge found that the definite identification of the plaintiff as the robber by the eyewitness provided the officer with probable cause to arrest him. The court also found that the eyewitness "show- up""identification was sufficiently reliable to support the address, since the plaintiff matched the robber as to race, sex, height and weight. While he was wearing different clothes than the robber, one officer had found discarded clothes from the robber on the street, making it possible that the robber had changed clothes to avoid capture. Mills v. Town of Davie, 48 F. Supp. 2d 1378 (S.D. Fla. 1999).
FIREARMS RELATED: INTENTIONAL USE
Officer was legally justified in shooting and killing a man advancing towards two officers with a knife held to his own throat who had previously stabbing his brother; the fact that he posed a threat to the officers rendered irrelevant any evidence of possible alternate strategies officers might have used prior to that point, or evidence concerning the officer's past disciplinary records or city use of force policy
Two South Dakota police officers responded to a call concerning a family disturbance. When they arrived on the scene, a woman informed them that her son had been stabbed, and that the assailant was still in the house. The officers found a man who had been stabbed near the center of his chest, and then found a second man in a closet who was sitting inside in an apparently drunken condition, holding a knife to his own throat.
This man announced that he had killed his brother and wanted to kill himself. The officers told him that his brother had survived and urged him to exit the closet and drop the knife. The suspect emerged from the closet, still holding the knife, and the officers retreated. He kept advancing towards the officers holding the knife, saying "shoot me, kill me," holding the knife at his own throat. One of the officers fired and hit the suspect, after which he threw the knife at the officers. He subsequently died of his wounds.
The administrator of his estate sued the firing officer and the city for excessive use of force. During trial, the judge excluded testimony "by a professed expert in police procedures tat the officers had not pursued certain strategies" in dealing with the decedent. It also excluded a copy of portions of the police department policy and procedures manual concerning the use of force and mental cases, personnel records of the firing officer, and an equipment list showing that batons were issued to officers.
At the conclusion of the trial, the judge granted a directed verdict for the defendants, finding that the officers actions were "not objectively unreasonable." The Supreme Court of South Dakota upheld this result.
It noted that the question of whether the use of deadly force was reasonable must be analyzed "from the perspective of the officer at the scene," rather than with the "20/20 vision of hindsight." In this case, "reasonable minds could not differ" over the conclusion that the officer had probable cause to believe that the decedent posed a "significant threat of death or serious bodily injury to both officers," justifying the use of deadly force.
The mere fact that the suspect "used suicidal language and placed his knife to his chin could not reasonably negate the very significant risk that he might stab one of the officers." Indeed, the suspect's action of throwing his knife at the officers after being shot, while not a fact faced by the officers before the shooting, "still illustrates the folly of assuming there was no risk of aggressive behavior present." Further, the suspect had already stabbed one man and had made "sudden aggressive" moves, advancing to a point at which he could have easily lunged and stabbed an officer.
The use of deadly force under these circumstances was not a violation of the Fourth Amendment. The court upheld the exclusion of evidence of different strategies that the officers might have used before shooting the decedent. Since the officers were legally justified in using deadly force, evidence that they "might have pursued other methods before" probable cause to use deadly force arose was "simply irrelevant." Similarly, evidence of the city's force policy or past disciplinary records of the officer were not relevant since the officer did not violate the decedent's rights. Yellowback v. City of Sioux Falls, #20719, 600 N.W.2d 554 (S.D. 1999). Full text: <http://www.sdbar.org/opinions/default.htm>. [Cross-references: Arrestee Suicide/Suicide by Cop; Governmental Liability: Policy/Custom; Procedural: Evidence].
FIREARMS RELATED: LICENSES
Alabama man had no federally protected right to act as a private detective in a county; sheriff not liable for denial of pistol permit which applicant alleged was required for private detective's license to issue
A federal trial court in Alabama rejected a federal civil rights claim by a man who sued the county sheriff for denying him a pistol permit which was allegedly required to obtain a business license to operate as a private detective. He claimed that the denial was improper and arbitrary. The judge ruled that the plaintiff had no fundamental right to work as a private detective in the county and no constitutionally protected "liberty or property" interest in the issuance of the business license. Accordingly, even if the plaintiff's version of the events were true, there was no violation of his federally protected rights. Moates v. Strength, 57 F. Supp. 2d 1305 (M.D. Ala. 1999). [Cross-references: Property].
GOVERNMENTAL LIABILITY: POLICY/CUSTOM
Bare allegation that individual officer's purported misconduct conformed to official city policy was sufficient to allow federal civil rights claim against city to proceed.
A federal civil rights lawsuit filed against police officers and the city which employed them based its claims against the city on a bare, undetailed assertion that the individual officers' alleged misconduct conformed the city's official policy, custom or practice. The city sought to have the claims against it dismissed.
The trial court denied this motion, citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993), which rejected a "heightened pleading standard" for the sufficiency of such complaints. The court noted, however, that the claims against the city might "indeed succumb for lack of proof" after discovery, but the lack of more specifics was not a basis for cutting off the case at the beginning for failure to state a claim. Golden v. City of Chicago, 187 F.R.D. 567 (N.D. Ill. 1999).
Florida statute allowing sheriff to appoint deputies with the "same power" as the sheriff did failed to make a deputy a final policymaker for the county in making several arrests.
Two arrestees in Florida sued the county sheriff in his official capacity for injuries arising out of allegedly unjustified arrests. Since any judgment against the sheriff in his official capacity would be paid by the county, the lawsuit really constituted a claim against the municipality. The arrests were made by a deputy sheriff, and the plaintiffs conceded, to a federal court, that the deputy was not carrying out any instructions of the sheriff, that the sheriff did not know about, ratify, or consent to the deputy's acts, and that there was "no custom of unjustified arrests."
The trial court therefore ruled that there could be no liability on the part of the sheriff in his official capacity, since the liability of municipality under 42 U.S.C. Sec. 1983 must be based on an official policy or custom.
this result, a federal appeals court rejected the plaintiff's argument
that a Florida state statute concerning the appointment of deputy sheriffs
made the deputy a policy maker. The statute in question provides that:
"Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible."
The plaintiff argued that this made the deputy the sheriff's "alter ego" who had the "final policymaking authority to the same extent as does the Sheriff." The federal appeals court ruled that the "only reasonable" interpretation of the "same power as the sheriff" language is that "it does not put Deputy Sheriffs on a par with Sheriffs in terms of final policymaking authority, and that the power referred to encompasses merely those powers which the Sheriff chooses actually to delegate." It would be "contrary to common sense to hold that a Deputy Sheriff's discretionary decisions in the field amount to official policy 'not subject to review.'"
Instead, a deputy sheriff is "under the Sheriff in the chain of command, and must answer to the Sheriff." Brown v. Neumann, 98-5722, 188 F.3d 1289 (11th Cir. 1999).
HIGH SPEED PURSUIT
Officer's deliberate ramming of fleeing motorist's vehicle did not constitute conduct shocking to the conscience which would render officer and city liable for resulting injury to nearby pedestrian hit by a car pushed by suspect's vehicle after he lost control of it.
Police officers in two patrol vehicles observed a motorist stopped at a traffic lane at a stop sign for what they considered an unusually long time. Also noticing damage to the car's rear end, the officers decided to investigate and one of the patrol cars moved alongside the vehicle to pull it over while the officers had the license plate checked. Instead, the motorist pulled away, and a high speed pursuit at up to 70 miles per hour ensued.
The pursued motorist, knowing that he was driving a stolen car, did not stop until one of the police vehicles bumped into the rear of his vehicle, giving it a hard push. At that time, he hit his head on the steering wheel and passed out. His vehicle, then out of control, collided with two other cars, one of which was propelled into a pedestrian standing on the sidewalk, injuring him.
The injured pedestrian sued the municipality as well as the officers, claiming violations of his federal civil rights. The trial court granted summary judgment for the defendants, relying on Sacramento County v. Lewis, 523 U.S. 833 (1998). Under this test, "the critical factor in determining whether Fourteenth Amendment liability for a high-speed chase may be imposed is whether the officer's conduct can be found to shock the conscience, for which the evidence must show intent to harm the suspect physically."
Application of this test mandated rejection of any argument that the officers' alleged violation of police department regulations for high-speed pursuits, "which might be probative of recklessness or conscious disregard of plaintiff's safety, suffices to meet the shocks-the- conscience test under the due process clause."
The plaintiff argued that the deliberate ramming of the suspect's car by a police vehicle amounted to the use of a deadly weapon, "which permits the drawing of an inference that the police acted with the intent to cause physical injury." The appeals court disagreed:
"Lewis does not permit an inference of intent to harm simply because a chase eventuates in deliberate, physical contact causing injury. Rather, it is 'conduct intended to injure in some way unjustifiable by any government interest [that] is the sort of official action most likely to rise to the conscience-shocking level.'"
In this case, the court noted, the officers were "faced with lawless behavior--the flight from their investigation--for which they were not to blame." They had done nothing to cause the pursued motorist's high-speed driving or his flouting of their authority.
Their intent, the court ruled "was to do their job as law enforcement officers, not to cause injury. If they acted recklessly or imprudently, there is no evidence that their actions 'were tainted by an improper or malicious motive.'" Accordingly, their behavior did not shock the conscience. The appeals court noted in passing that the fact that the plaintiff in Lewis was a suspect, while in this case it was a bystander, did not alter the result. Davis v. Township of Hillside, #98-6176, 190 F.3d 167 (3rd Cir. 1999).
Text: <http://www.law.vill.edu/Fed- Ct/ca03.html>.
Sheriff's action of allegedly issuing criminal summons to woman in retaliation for her political opposition to him did not state a civil rights claim for malicious prosecution when she was not arrested, detained, fingerprinted, or ultimately prosecuted; plaintiff's liberty was not restricted in any way; summons and alleged defamatory remarks to the press also did not constitute a violation of First Amendment rights when no tangible adverse damage resulted from these acts.
A Louisiana woman filed a federal civil rights lawsuit for malicious prosecution, claiming that a sheriff issued a criminal summons to her without probable cause, in retaliation for her past political opposition to him as sheriff. The prosecutor declined, and she was not arrested or detained in any fashion, but appeared in court where she was advised for the first time "that her case had been officially declined for prosecution." A widely read local newspaper printed an article about the case ten days prior to her court appearance, which indicated that the case would not be pursued.
Granting the defendant sheriff's motion to dismiss, the trial court stated that "there is a Fourth Amendment right to be free from malicious prosecution, but not without a deprivation of liberty consistent with the concept of seizure." In this case, the plaintiff did not allege that she was "detained, arrested, arraigned, incarcerated, tried, or convicted in connection with the summons."
The court found as a matter of law that the criminal summons, coupled with her voluntary court appearance after published notice that the charges would not be prosecuted, "did not sufficiently diminish her liberty to render her seized under the Fourth Amendment."
The court also rejected the plaintiff's argument that the issuance of the summons, along with allegedly defamatory remarks the sheriff made to the press constituted a violation of her First Amendment rights, since it was in retaliation for her political opposition to the sheriff. "Mere false accusations in retaliation for protected free speech do not give rise to a constitutional deprivation for purposes of the First Amendment. Rather, such acts must led to "some more tangible adverse action" in order to state a claim for damages. Matherne v. Larpenter, 54 F. Supp. 2d 684 (E.D. La. 1999). [Cross-references: Defamation; First Amendment].
Appeals court upholds jury verdict in favor of police officers in lawsuit over alleged positional asphyxia in case where they used kneeling wristlock on disturbed man to take him into protective custody; use of courtroom demonstration of kneeling wristlock technique was properly admitted into evidence.
Police officers responded to a call reporting a man running in traffic in front of vehicles and slapping cars while reportedly attempting to enter cars, saying that "they" were "after him." When the officers found the individual, they decided to take him into protective custody because of his apparent inability to care for himself. He was apparently suffering hallucinations of being shot in the back and chased, although there were no signs of bullet wounds or pursuers.
After they handcuffed him, he began to struggle with him. The officers placed him face down on the pavement and applied a kneeling wristlock on his left arm. He stopped struggling after two or three minutes, and he then would not respond to the officers, appearing barely conscious. They then put him into a seated position. Medical personnel arriving on the scene took him to the hospital, where he went into a coma, and now remains in a vegetative state.
His mother brought a federal civil rights lawsuit on his and her behalf against the two officers on the scene as well as the Board of Police Commissioners, claiming excessive use of force resulting in "positional asphyxia," failure to provide medical assistance, and failure to adequately train and supervise the officers.
A jury returned a verdict in favor of the defendants on all claims. On appeal, the plaintiffs argued that the trial court improperly permitted a courtroom presentation of the kneeling wristlock that the officers used, arguing that it did not accurately reflect the entire course of events.
The appeals court agreed that it did not reflect everything that happened, but it "was not intended to." The jury "was notified immediately prior to the demonstration that it was not a reenactment" of the entire event, but rather, "its purpose was to inform and show the jurors precisely how an officer would apply the technique."
"It is within reason that such a demonstration would assist a jury of lay people, unfamiliar with law enforcement techniques, in understanding the kneeling wristlock technique." This was particularly relevant in this case, "because the jurors ultimately had to consider whether the tactic, and the manner in which it was applied, contributed to or caused" the injuries. The plaintiffs had the opportunity to conduct cross-examination of the officer giving the demonstration to try to point out any differences between what happened and what was presented in court. Accordingly, the trial court did not abuse its discretion in allowing the demonstration and it was not "unduly prejudicial" to the plaintiffs' case. Jones v. Ralls, #98- 3514, 187 F.3d 848 (8th Cir. 1999).
Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Procedural: Evidence].
PUBLIC PROTECTION: MOTORISTS
UPDATE: $3.9 million jury award against State of Alaska to family of couple and their 2- year-old grandson who died of hypothermia reduced to $1.48 million; lawsuit asserted state troopers knew of stalled motorists' plight but took no action for over two days.
An Alaska state court jury assessed damages totaling $7.75 million for the death of a married couple and their 2-year-old grandson the three died of hypothermia while attempting to walk to town from their disabled vehicle. The lawsuit asserted that state troopers were informed on the abandoned vehicle and a "help" message that the decedents had carved in the snow, but did not make a sustained search attempt for two days. The jury then reduced the liability against the state to $3.9 million, based on a finding that the decedents were themselves 49% at fault for their deaths. Kiokum v. State of Alaska, 4BC-97-00274CI (Alaska Super. Ct., Bethel, Alaska), reported in The National Law Journal, p. A15 (November 15, 1999), Liability Reporter, No. 325, p. 13 (Jan. 2000).
The trial judge has now further reduced the award against the state to $1.48 million, including interest, based on state legislation putting limits on the amount of damages awardable against the state. Kiokum v. State of Alaska, 4BC-97-00274CI (Alaska Super. Ct., Bethel, Alaska), reported in The National Law Journal, p. A13 (Feb. 7, 2000).
SEARCH AND SEIZURE: HOME/BUSINESS
Anonymous phone call saying that woman heard a child within a house shout "No Daddy, no" and "no, no, no" did not provide "exigent circumstances" justifying warrantless entry into home by police officer and social worker fourteen days later or requiring mother to pull down three-year-old's pants to inspect for bruises.
A federal appeals court ruled that a police officer should have known that he did not have "exigent circumstances" to make a warrantless entry into a home with a state social worker during which they required a mother to pull a three-year-old child's pants down to enable a visual inspection of the child's bottom for bruises.
Concern about children in the home began after there was an anonymous phone call to state child welfare agencies stating that she had heard a child in the house screaming "No Daddy, no" at 1:30 a.m. and then later heard a child in the home scream "no, no, no" in the afternoon. The caller also stated that the children are home schooled and that "this is an extremely religious family."
A social worker went to the home and saw the children standing in the doorway with their mother, noting that they "did not appear to be abused" or neglected. Ten days later, which was fourteen days after the anonymous call, she returned to the house with the police officer. The parents subsequently sued the officer and social worker for violations of their civil rights.
The appeals court ruled that the defendants were not entitled to qualified immunity for the warrantless entry into the home. There was no reasonable concern about "imminent danger of serious harm" to the children, and the social worker had seen no evidence of physical abuse on a previous visit. A reasonable officer or social worker would have known that either consent or a warrant was required for entry under these circumstances. In this case, the defendants allegedly mistakenly believed that they had the right to enter and that the Fourth Amendment did not apply to entries into homes where there were concerns about the treatment of children.
The court also found no circumstances justifying the demand that the minor child's pants be pulled down, as there was no evidence of abuse or neglect. The children did say that they were sometimes spanked with a token "rod" consisting of a nine inch Lincoln log, but this was insufficient to show abuse. Calabretta v. Floyd, #97-15385, 189 F.3d 808 (9th Cir. 1999).
Two-hour administrative search of nightclubs by forty officers and revenue agents, during which the identity of 400 patrons was checked to detect underage drinking was not unreasonable; rather, it was a valid administrative search under state liquor laws
Law enforcement officials in Georgia had received numerous complaints about alleged liquor sales to minors at two adjoining nightclubs, operated by the same owner and managed by her son. Other complaints included Sunday sales of liquor, prohibited by state law. Members of a Drug Task Force obtained arrest warrants for the owner, the manager, and a number of other nightclub personnel.
They went to the nightclubs one evening, accompanied by agents of the state Department of Revenue who were also investigating violations of the alcoholic beverage laws at the club. A total of forty officers and agents united their respective investigations for the dual purpose of conducting an administrative search of the nightclubs and to execute the arrest warrants.
During the search, the nightclubs were secured and identification of approximately 400 patrons was checked. Revenue agents also checked credit card receipts to see if there had been sales after-hours. The investigation took two hours and resulted in arrests of seventy individuals and fifty-four convictions for underage drinking, as well as information about other possible liquor law violations by the nightclubs.
The owner and manager of the club as well as one other nightclub employee filed a federal civil rights lawsuit against the county sheriff, the drug task force commander, and the Revenue Department Agent in charge of the administrative search. They claimed that the search was an "unreasonable, warrantless" one and that unreasonable seizures took place during it.
A federal appeals court noted that the expectation of privacy in a commercial premises is "different from, and indeed less than, a similar expectation in an individual's home." Accordingly, legislative schemes allowing for warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment, since the regulatory scheme itself may provide adequate privacy protection. The liquor industry is one which is "closely regulated," and in which there is "no reasonable expectation of privacy" over its products, "which historically have been the subject of government oversight."
In order for a warrantless inspection of such a business to be reasonable, it must be carried out in support of a "substantial" government interest, it must be "necessary to further" the regulatory scheme, and the inspection program, "in terms of the certainty and regularity of its application" must "provide a constitutionally adequate substitute for a warrant," such as letting business owners know the time, place, and scope when the business will be subject to periodic inspection.
In this case, prevention of illegal liquor sales to minors and on Sunday were "obviously" substantial government purposes. The obtaining of warrants before beginning an investigation might alert business owners to the impending inspection, and defeat its purpose. And the state statute authorizing administrative searches of liquor businesses gave the owners notice that they could be inspected at "any time" and be asked to grant access to their premises, books, records, and supplies. The statute also empowered revenue agents to assist other law enforcement agents in detecting and apprehending anyone violating any criminal law.
Accordingly, the revenue agent had the authority to conduct the inspection, as well as to cooperate with the officers in their criminal investigation. The fact that officers were used to assist revenue agents in securing the premises and conducting the search did not alter the status of what took place as a valid administrative inspection.
"There is no constitutional offense in various law enforcement agents coordinating and consolidating their efforts to enforce a state statute authorizing such cooperation to conduct an administrative search for violations of the Georgia Alcoholic Beverage Code in conjunction with executing arrest warrants for previously observed violations of these laws." The individual defendants were therefore entitled to qualified immunity from liability on federal civil rights claims.
The appeals court also rejected an excessive force claim based on the number of officers used to conduct the search. It ordered further proceedings on the issue of whether state law claims should also be dismissed. Crosby v. Paulk, #97-8585, 187 F.3d 1339 (11th Cir. 1999).
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Brown v. Neumann, 98-5722, 188 F.3d 1289 (11t Cir. 1999).[40-41]
Calabretta v. Floyd, #97-15385, 189 F.3d 808 (9th Cir. 1999).
Crosby v. Paulk, #97-8585, 187 F.3d 1339 (11th Cir. 1999).[45-47]
Davis v. Township of Hillside, #98-6176, 190 F.3d 167 (3rd Cir. 1999).[41-42]
Golden v. City of Chicago, 187 F.R.D. 567 (N.D. Ill. 1999).
Johnston v. City of Bloomington, #97-4396, 170 F.3d 825 (8th Cir. 1999).
Jones v. Ralls, #98-3514, 187 F.3d 848 (8th Cir. 1999).[43-44]
Kiokum v. State of Alaska, 4BC-97-00274CI (Alaska Super. Ct., Bethel, Alaska),
reported in The National Law Journal, p. A13 (Feb. 7, 2000).
Kiokum v. State of Alaska, 4BC-97-00274CI (Alaska Super. Ct., Bethel, Alaska), reported in The National
Law Journal, p. A15 (November 15, 1999).
Martinez v. City of Albuquerque, No. 98-2235, 184 F.3d 1123 (10th Cir. 1999).[35-36]
Matherne v. Larpenter, 54 F. Supp. 2d 684 (E.D. La. 1999).[42-43]
Mills v. Town of Davie, 48 F. Supp. 2d 1378 (S.D. Fla. 1999).
Moates v. Strength, 57 F. Supp. 2d 1305 (M.D. Ala. 1999).
Sheehy v. Town of Plymouth, #98-2080, 191 F.3d 15 (1st Cir. 1999).[36-37]
Soltis v. Kotenski, 63 F. Supp. 2d 187 (D. Conn. 1999).[37-38]
Yellowback v. City of Sioux Falls, 600 N.W.2d 554 (S.D. 1999).[39-40]
Westfall v. City of Dunbar, 517 S.E.2d 479 (W. Va. 1999).
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