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(Published as VOLUME 2000 NUMBER 334)
Assault and Battery
Defenses: Absolute Immunity
Defenses: Qualified Immunity
Defenses: Soldiers' & Sailors Act
Defenses: Statute of Limitations
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Procedural: Jury Selection
Search and Seizure: Vehicle
Index of Cases Cited
ASSAULT AND BATTERY: PHYSICAL
Police officer acted reasonably in opening cell door to quiet yelling arrestee and make sure that intoxicated arrestee was not harming himself; no liability for injuries to arrestee who was knocked unconscious by cell door opening; officer was unable to see that arrestee was standing behind cell door and would be hit by it.
An Arkansas police officer, responding to a call reporting a disturbance, placed a man under arrest for public intoxication. A second officer transported the arrestee to the local jail. Both officers were involved in booking the arrestee, who was uncooperative and hostile. He attempted to elbow one of the officers, who then wrestled him to the floor, following which both officers handcuffed the arrestee, picked him up and placed him into a holding cell.
Once in the cell, the arrestee started yelling and pounding on the door. One of the officers unlocked the cell door and pushed it open, intending to go inside to see what was the matter. The door hit the arrestee, knocking him unconscious. The entire incident was recorded on videotape.
The arrestee, who received medical treatment at a local hospital, sued this officer for excessive use of force, as well as naming the chief of police as an additional defendant. Upholding summary judgment for the defendants, a federal appeals court found that the defendant officer, who was unable to see that the arrestee was standing behind the door and would be struck when he opened it, acted reasonably in opening the cell door to both quiet the arrestee and to make sure that the arrestee was not injuring himself.
Since nothing that the officer did violated the arrestee's rights, there was no constitutional violation that the chief of police could be responsible for under any theory of liability. Wilson v. Spain, No. 99-2224, 209 F.3d 713 (8th Cir. 2000).
DEFENSES: ABSOLUTE IMMUNITY
Federal agent was entitled to absolute immunity from liability for any allegedly false statements made before a federal grand jury or during a criminal trial.
A special agent of the U.S. Department of Housing and Urban Development (HUD) was investigating alleged violations of federal laws concerning various housing assistance programs. As a result of one such investigation, a tenant in an apartment was accused of falsely representing the owner of the building in which she resided as a person approved as a landlord who could receive such payments. The investigation also resulted in a grand jury investigation and indictment of an employee of a city housing authority, who the agent believed had instructed the tenant that she should identify anyone, regardless of whether that person was the true owner of the property, as her landlord, in order to obtain the federal housing benefits.
A jury ultimately returned a not guilty verdict regarding this employee, who then filed a federal civil rights lawsuit against the agent, claiming that she had given false testimony at both the grand jury and at the plaintiff's criminal trial.
The federal trial court granted a motion to dismiss the lawsuit, finding that, even if the defendant agent did give false testimony, or testimony given with reckless disregard for the truth of it, she was entitled to absolute immunity for any statements made at the grand jury or during the criminal trial. The court noted that there were no claims that the agent violated any of the plaintiff's constitutional rights during her investigative activities, so the entire lawsuit was over statements made as a witness in criminal proceedings. Such witnesses have long been granted absolute immunity for their testimony, since to apply a different rule might create a disincentive for witnesses to come forward to testify or induce witnesses to distort their testimony to avoid future lawsuits, adversely undermining the "truth-seeking function of the judicial process." Dillihunt v. Hitchcock, 32 F. Supp. 2d 1001 (W.D. Tenn. 1999).
DEFENSES: QUALIFIED (GOOD-FAITH) IMMUNITY
Federal appeals court could not review trial judge's denial of qualified immunity to two sheriff's deputies in lawsuit claiming they used excessive force during a wrongful arrest; such denials are only immediately appealable when based on a conclusion of law, but in this case, there was a disputed issue of fact as to what actually happened.
A Texas arrestee sued two sheriff's deputies, claiming that they used excessive force against him during an allegedly wrongful arrest. The trial court declined to grant the defendant deputies' motion for summary judgment on the basis of qualified immunity.
Dismissing an appeal from this ruling, a federal appeals court noted that, while trial court decisions declining to grant qualified immunity are immediately appealable when based on a conclusion of law, this is not the case when the denial is based on the sufficiency of the evidence, or in other words, a factual dispute as to what happened. In this case, because there was a significant fact-related dispute about the circumstances of the arrest and detention, "this court does not have jurisdiction" to review the denial of qualified immunity by the trial court. Thibodeaux v. Harris County, Texas, No. 99-21054, 215 F.3d 540 (5th Cir. 2000).
DEFENSES: SOLDIERS' AND SAILORS' CIVIL RELIEF ACT
Former correctional officer, now on active military duty, was entitled to a stay in prisoner's federal civil rights lawsuit against him for alleged assault; federal statute allows a stay of any civil lawsuit during a plaintiff or defendant's military service and for up to sixty days thereafter.
A Texas prisoner sued a former correctional officer who he claimed had assaulted him. The defendant was not served with the complaint, and was currently on active duty with the United States Air Force. The Attorney General of the State of Texas filed a "friend of the court" motion to dismiss the lawsuit under the federal Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. Secs. 501-591. This law provides persons in active military service with relief from having to be involved in court proceedings unless the court determines that their ability to act as a plaintiff or defendant is "not materially affected by reason of this military service."
While the prisoner objected, arguing that the Texas Attorney General, not a party in the case, had no "standing" to ask for such relief, the trial court found that the law gave it the authority to grant relief under the Soldiers' and Sailors' Act on its own motion, and it did so, dismissing the lawsuit without prejudice.
A federal appeals court agreed that the trial court could act on its own motion under the statute, but found that the law in question did not authorize the complete dismissal of the lawsuit, but only a stay during the period of the party's military service and for a limited period thereafter. The appeals court further noted that, due to the plaintiff inmate's imprisonment "and lack of means and information" to keep up with the defendant's military status and location, the prisoner would have "little realistic chance of reinstating the action in a timely manner" if it were dismissed.
The appeals court therefore modified the dismissal of the lawsuit to a stay for the period of the defendant's active military duty and 90 days thereafter. (The statute's language allows a period of up to 60 days after active military service, but the trial court had extended the statute of limitations for a period of up to 90 days after the defendant's release from military duty, and, since neither party objected to that longer time period, the appeals court kept that time period as the time of the stay it ordered). White v. Black, #98-21058, 190 F.3d 366 (5th Cir. 1999).
DEFENSES: STATUTE OF LIMITATIONS
False arrest and malicious prosecution claims against officers were time barred under Illinois law when filed more than a year after the time the criminal case against the plaintiff had been dismissed; dismissal with "leave to reinstate" did not, in any event, constitute a final disposition of the case in favor of the criminal defendant, as required to support a malicious prosecution claim.
An Illinois man was arrested on misdemeanor charges based on a complaint by a private individual. The charges were "stricken with leave to reinstate" (SOL'd) when neither the arresting officers or the complainant, who apparently had been given erroneous scheduling information, appeared in court. The case was later reinstated, but again SOL'd when the officers and complainant again did not appear in court.
The arrestee filed a malicious prosecution and false arrest lawsuit against the officers and the complainant just under two years after the case was last stricken. The federal trial court found that the state law malicious prosecution and false claims against the city and its officers had to be filed within a year of the time that the claim arose, under the provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101. Accordingly, these claims were time barred. The court also noted, in dismissing the malicious prosecution claim against the complainant, that a disposition of the criminal case by an SOL was insufficient to support such a claim since it was not necessarily a final result in the case in the defendant's favor. Woodard v. Eubanks, 94 F. Supp. 2d 940 (N.D. Ill. 2000). [Cross-reference: False Arrest/Imprisonment: No Warrant; Malicious Prosecution].
Federal appeals court upholds jury verdict in favor of officer who used police dog to subdue an auto theft suspect; plaintiff's two prior felony convictions, based on no contest pleas, were properly used to impeach his testimony; plaintiff was not entitled to an explicit jury instruction concerning "alternative courses of action" available to the officer or the officer's alleged "lack of probable cause" to believe that the plaintiff was armed.
A California police officer was searching for an auto theft suspect who had fled on foot and was believed to be hiding in a residential backyard. The officer was accompanied by his trained police dog. He shouted a warning to the suspect that if he refused to surrender, a dog capable of biting would be released to locate him.
The dog was released and stopped at a six-foot fence, indicating the presence of someone or something on the other side of the fence. The officer then saw the suspect a few feet away crouching in a dark narrow space between the backyard fence and a second fence made of bamboo. While he did not see a weapon on the suspect, he could only see the suspect's upper body.
The officer later testified that the suspect raised his hands initially, but then started "slowly dropping them back down in front," leading the officer to fear that he might be trying to reach for a weapon. He accordingly ordered the dog to bite him. The dog did so, and the suspect was arrested. He sued the officer and the city, as well as other defendants, including the dog, Heros, who he argued was "also a member" of the police department who "has a badge like any other officer."
The plaintiff argued that officer had ordered him to stand up and put his hands in the air and that he was complying when the dog attacked.
A jury trial returned a verdict for the defendants. At the trial, the court admitted evidence of the plaintiff's two prior felony convictions (based on "no contest" pleas) for purposes of impeaching his testimony.
A federal appeals court upheld the jury's verdict. It held that the trial court properly admitted evidence of the two felony convictions. While Federal Rule of Evidence 410 states that a no contest plea is not admissible as evidence in any criminal or civil proceeding against the defendant who made the plea, this rule only bars evidence of the plea, insofar as the pleas constitute statements or admissions. It does not bar evidence of the convictions themselves.
The appeals court also rejected the plaintiff's argument that the jury should have been explicitly instructed that it should consider "alternative courses of action" available to the officer in evaluating whether the plaintiff was the victim of excessive force. The court found that the instructions which were given, which included a requirement that the jury consider the totality of the circumstances, and impose liability if the force used were not "reasonably necessary" based objectively on the "information available at the time the force was used" adequately covered the applicable legal principles.
Finally, the appeals court found that the plaintiff had not been entitled to his requested, but refused, jury instruction that the officers "did not have probable cause to believe plaintiff was armed." This issue, the court found because whether the officers had probable cause to believe the plaintiff was armed "was not the issue before the jury." Such probable cause is required in instances of use of deadly force, but the court ruled that "the existence of absence of probable cause lacks relevance outside the deadly force context," including, generally, the use of police dogs.
The relevant inquiry for the jury was whether the plaintiff "might have posed 'an immediate threat to the safety of the officers or others," with the "existence of probable cause, a more specific and demanding standard," simply "not relevant. Brewer v. City of Napa, #98- 16460, 210 F.3d 1093 (9th Cir. 2000).
Text: <www.ce9.uscourts.gov/opinions>. [Cross-reference: Procedural: Evidence].
EDITOR'S NOTE: On the evidence issue regarding the admissibility of felony convictions even if based on "no contest" pleas, two other federal appeals courts have reached the same result as the court above. See United States v. Williams, 642 F.2d 136 (5th Cir. 1981), United States v. Sonny Mitchell Cir., 934 F.2d 77 (5th Cir. 1991), and United States v. Lipscomb, 702 F.2d 1049 (D.C. Cir. 1983).
FALSE ARREST/IMPRISONMENT: NO WARRANT
Once officers lawfully placed motorist in an investigatory detention, he had no clearly established right to refuse to identify himself or to leave the scene before the investigation was complete; officers were entitled to qualified immunity for then arresting him, since they could reasonably believe he was interfering with a lawful detention.
A motorist drove onto the parking lot of an auto repair shop before business hours, intending to drop off his car to be fixed. In doing so, he triggered a silent alarm that the shop had installed because of some prior incidents in which someone illegally engaged in the dumping of oil on the premises. Police officers who arrived on the scene asked the motorist to identify himself and informed him that he could not leave without doing so. The motorist proceeded to drive away, refusing to identify himself.
The motorist was stopped and arrested. Charges against him were later dismissed and he sued the officers for violation of his federal civil rights.
Ruling that the defendant officers were entitled to qualified immunity, a federal appeals court found that they had a reasonable articulable suspicion of criminal activity when the motorist was first encountered, justifying an investigative detention. Once such a detention is lawfully begun, the officer is permitted to detain the person until the investigation is completed. In this case, the motorist had no clearly established constitutional right to refuse to identify himself or to leave the scene after he was told that he could not leave. The officers could reasonably have believed that they had probable cause to arrest the motorist under a Utah state law prohibiting interference with a lawful detention. Oliver v. Woods, No. 98-4179, 209 F.3d 1179 (10th Cir. 2000).
FALSE ARREST/IMPRISONMENT: WARRANT
Booking officer was liable for $10,000 to female motorist held in custody for six days under an arrest warrant that was actually for her sister; jury could reasonably conclude that officer had received and ignored a computer message that the arrestee's fingerprints did not match those on file for the person sought, despite the officer's denial that she got the message.
A female motorist was stopped by a Missouri police officer because her car was missing its rear license plate. She did not have her driver's license or any other identification on her. After she told the officer her full name, he checked it via his computer and informed her that her name was the alias for another woman for whom there was an outstanding arrest warrant. Her sister had evidently been arrested previously, and had given her name and date of birth. After the deception was discovered, police records reflected her name as her sister's alias. Both women lived at the same address.
While both the motorist and her mother explained this to the officer, he placed her under arrest. She protested during the booking process that she was not the person named in the warrant. Her fingerprints were sent to an office to be checked. When they turned out not to be the prints of the suspect sought in the warrant, personnel in that office sent an in-house computer message to the Warrant and Fugitive Section of the department, and specifically to the attention of the booking officer, notifying her that the wrong person was in custody. Despite this, no action was taken to free the arrestee, who spent six-days in custody as a result of the error.
She sued the booking officer for violation of her federal civil rights, asserting deliberate indifference to the fact that the arrest warrant was in fact for another person. A jury awarded the arrestee $10,000 in damages against the officer. Upholding the award, an appeals court found that there was sufficient evidence in the record to support the jury's finding that the officer had received the computer report indicating that the wrong sister was in custody. There was testimony indicating that the message had been properly sent to the officer, and she herself stated that she normally got such messages when they were printed out, and that they were either handed to her or placed on her desk. There was no evidence that the officer had failed to receive any other such messages.
"A jury generally is permitted to infer that information sent via a reliable means--such as the postal service or a telegram--was received," the court stated. "We see no principled reason why a jury would not be able to make the same inference regarding other forms of communication--such as facsimiles, electronic mail, and in-house computer message systems--provided they are accepted as generally reliable and that the particular message is properly dispatched." While the officer denied receiving the message, the issue of her credibility was for the jury to determine. Kennell v. Gates, #99-1931, 215 F.3d 825 (8th Cir. 2000).
Full Text: <www.wulaw.wustl.edu/8th.cir>.
FIREARMS RELATED: INTENTIONAL USE
Officers were not liable for excessive force or wrongful death when they shot and killed an intoxicated man who had previously assaulted his wife; decedent had threatened to "kill" people and was pointing a gun at one of the officers at the time he was shot.
A Washington state man allegedly punched his wife in the back and face when she tried to prevent him from driving home from a bowling alley bar in an intoxicated condition. She reported this to the police, who went to the house to question and possibly arrest her husband. While they asked her to remain at the bowling alley with her children, she insisted on accompanying the officers.
She unlocked the door to the house, and her husband, from inside told her to "get the f*** out of here or two people are going to die tonight." While the wife backed away, the husband opened the door and the officers could see a rifle with the scope pointed down held in his hand. He refused to drop it in response to the officers' demands, and allegedly pointed it directly at one of the officers. One of them shot at the man and the door closed and the porch light went out.
Officers called for backup and spent several hours unsuccessfully attempting to communicate with the husband inside the house by telephone. When a SWAT team entered the house, they discovered the husband dead behind the front door with a bullet wound in his forehead, still holding the rifle. Three other guns and a "significant" amount of ammunition was found in other locations in the house.
His surviving family filed a federal civil rights lawsuit against the two officers and the city, asserting claims for excessive force, wrongful death and negligent infliction of emotional distress.
An intermediate Washington state appeals court ruled in favor of the defendants on all claims. It found that the officers acted in an objectively reasonable manner in light of the facts and circumstances known to them. They were required to make "split second decisions" when confronted with the armed and intoxicated husband, who had already threatened to kill people and refused their requests that he drop his gun. Under these circumstances, they could reasonably believe that he posed a threat of death or serious bodily injury to them and to his family.
The court also noted that it is a complete defense under Washington state law to any wrongful death claim that the person killed was engaged at the time in the commission of a felony and that the felony was a proximate cause of death. In this case, the decedent was pointing a gun at an officer after threatening to kill people. Lee, Estate of, v. Spokane, No. 18347-5-III, 2 P.3d 979 (Wash. App. 2000). [Cross-reference: Wrongful Death].
Officers were not liable for shooting and killing naked mentally disabled man armed with a knife who they believed was about to attack another person; jury instruction that they should not consider the possible risk to members of the public from the officers' use of deadly force in reaching their verdict was not improper.
A mentally disabled man walked into a barber shop in North Carolina wearing only a cap and sunglasses and carrying a knife. Two police officers arrived on the scene in response to a phone call from an employee at a nearby business. The naked man with the knife began to approach a person standing just outside the barbershop. Believing that the naked man was attempting to attack this individual, and after unsuccessfully trying to subdue him with mace, the officers shot and killed him.
The decedent's mother filed a federal civil rights lawsuit against the officers, alleging excessive force. After eleven jurors in the case indicated that they had reached a verdict, but that one juror wanted to abstain, the trial judge instructed the jury that "in this case, you are not to consider in reaching your determination the public safety of other individuals." The "fact that other people or property may have been hit by bullets is not for your consideration," instead "you "will confine yourselves to a determination of the matter involving the deceased and the officers shooting."
The jury then returned a verdict in favor of the defendants. A federal appeals court upheld this result and rejected arguments that the jury instruction that the jury should not consider the risk posed to third parties by the officers' actions was improper. "The question is not whether the officer acted reasonably vis-a-vis the world at large. Rather, the question is whether the officer acted reasonably as against the plaintiff." The issue of whether or not other persons were or were not "exposed to risk by the officer's employment of force" was irrelevant to the question of whether the officer was justified in using deadly force against the plaintiff. Howerton v. Fletcher, No. 98-2795, 213 F.3d 171 (4th Cir. 2000).
Mississippi state gaming commission and two of its investigating agents held liable for $45,000 for malicious prosecution of man placed temporarily in charge of charitable bingo game by his brother-in-law, the authorized person; appeals court finds that agents obtained immediate arrest of plaintiff only after he refused to continue cooperating with their investigation; 15% penalty imposed for unsuccessful appeal of award.
An inactive veteran's organization in Mississippi, nonetheless possessing a valid charter, was revived, apparently for the primary purpose of becoming the sponsoring entity for a charitable bingo operation. An individual was named as the supervising person, as required by state law, but investigators from a state gaming commission, making an on-site visit to the game, discovered that the man's brother-in-law was actually running the enterprise. He was doing so temporarily, he explained, because the supervising person had developed some serious health problems that prevented him from being present.
The investigating agents asked the brother-in-law to accompany them to the sheriff's office for further questioning about this and other alleged discrepancies in how the game was being run. They then signed affidavits charging him with violations of state gaming laws, and a judge issued an arrest warrant on these charges. The arrestee had to stay in jail overnight because it was too late for him to be able to arrange to pay bail. The charges were later dismissed.
He sued the state gaming commission and two of its agents for malicious prosecution. After a bench trial, the court awarded the plaintiff $45,000 in damages against the defendants.
An intermediate Mississippi appeals court upheld this award. The court found that the evidence supported a finding of malicious prosecution. On one of the charges, for example, that of signing the name of the statutory signatory of the bingo checking account to checks intended for deposit, the authorized signatory testified that he told the agents, prior to the arrest, that he was suffering from pneumonia and severe diabetic problems and had given the arrestee permission to sign his name to the checks.
The court also noted that the arrest "was accomplished without advance warning, late in the evening," at a time when the arrestee's prospects for making bond and avoiding an overnight incarceration were "doubtful." And one of the investigating agents testified that the decision to swear out the affidavits that led to the plaintiff's "almost instant incarceration was only made after" he refused to voluntarily continue answering their inquiries--a right that he "certainly enjoyed under the constitution and one, therefore, for which he ought not to have suffered State-sponsored retribution." The court further stated that it was "not really apparent what urgency necessitated" his "immediate incarceration, late in the evening, for a series of nonviolent offenses, all of which occurred days prior to the arrest," further supporting the conclusion that the agents were acting "for the purpose, at least in part, of retaliating" against the arrestee "for his decision to cease cooperating in their investigation."
The appeals court found that the "malicious, vengeful behavior" of the agents was "unchecked and out of control," and imposed a statutory penalty of 15% on the $45,000 award based on the unsuccessful appeal. Mississippi Gaming Commission v. Baker, No. 97-CA-01507-COA, 755 So. 2d 1129 (Miss. App. 1999).
PROCEDURAL: JURY SELECTION
New trial granted in lawsuit over police dog's biting of arrestee; prospective jurors who indicated, during questioning, that they would have difficulty in awarding damages for pain and suffering unless it involved a condition that the plaintiff would suffer from for life should have been dismissed for cause.
A Florida arrestee sued the sheriff and one of his deputies for damages sustained during the deputy's arrest of the plaintiff, in which the deputy's police dog attacked and bit him. The jury returned an verdict in favor of the defendants.
During initial questioning of the prospective jurors, five of those finally seated as jurors had stated that they would have a "problem" or "difficulty" in awarding damages for pain and suffering unless it was incident to a condition that the plaintiff would suffer from for life.
Reversing the verdict and granting a new trial, an intermediate Florida appeals court ruled that these five prospective jurors should have been dismissed for cause when they indicated that they would have difficulty in following the law regarding compensation for pain and suffering, and when further questioning failed to "rehabilitate" them on this response. Pacot v. Wheeler, No. 4D99-0269, 758 So. 2d 1141 (Fla. App. 2000). [Cross-reference: Dogs].
PUBLIC PROTECTION: INTOXICATED PERSONS
Officer who stopped intoxicated motorist was not liable for her injuries in subsequent accident she suffered after he failed to arrest her; officer's actions did not increase the danger to her, since she was already driving under the influence of alcohol.
A Delaware police officer stopped a motorist because she was speeding, and also because he suspected that the slight swerving in her driving might be the result of intoxication. She told him that she had consumed one beer, and he detected a "faint" odor of alcohol. She passed various tests, including reciting the alphabet and counting backwards from ten to one. Her speech was not slurred and she was able to walk without visible signs of intoxication. She admitted that she might have been speeding but said that she did not know because her dashboard light was out. The officer observed that the light was in fact out.
While he also discovered that her driver's license had been suspended, there were no outstanding warrants for her arrest. He issued her a warning for speeding and a summons for driving with a suspended license. The officer then left, and the motorist drove off approximately ten to twenty minutes later. She was subsequently involved in an accident when she attempted to pass a truck, and suffered serious injuries. At the hospital, a blood alcohol level test showed her to be intoxicated over the legal limit.
The injured motorist sued the officer, asserting that he violated her constitutional rights by his failure to arrest her and/or his alleged direction to her to continue driving after he stopped her. (She claimed that he did not offer her a ride, but instead told her to "wait till I leave and then you pull off." The officer stated that he offered her a ride home three times, and also told her that she could not drive home because of her suspended license.
A federal trial court rejected the argument that the officer had "created" any danger to the motorist which would not have otherwise existed. It was "undisputed" that, at the time of the stop, the motorist was already driving while under the influence of alcohol, and would have continued to do so had the officer failed to intervene. Even if the officer ordered the motorist to drive after he knew that she was under the influence of alcohol, "he did not place her in a more unsafe position, because she had" already been doing so.
Accordingly, the officer was entitled to qualified immunity in his individual capacity. The court also found no viable claim against the officer in his official capacity, since there was no showing that any alleged constitutional violation was caused by an official policy or custom of the city. Wyatt v. Krzysiak, 82 F. Supp. 2d 250 (D. Del. 1999).
Federal trial judge rules that plaintiff in lawsuit against Los Angeles police officers, claiming that they planted evidence to frame him for a drug offense, could pursue racketeering (RICO) claims against the defendants, as well as seek injunctive relief against future similar misconduct.
During an investigation of allegations of wrongdoing against the Los Angeles Police Department's Rampart Division, it was asserted that officers in this division planted evidence in criminal cases and engaged in other misconduct, including the use of excessive force against unarmed persons and the selling of drugs taken from evidence lockers. The investigation has so far resulted in approximately 100 criminal convictions being overturned. Several hundred civil lawsuits are expected against individual officers or against the city.
In one such lawsuit, a 34-year-old Hispanic man claimed that drugs were planted on him by police and that this resulted in him spending two years in prison before he was released last year. Among other claims in the lawsuit, he claimed he was illegally searched, detained, and arrested, violating his Fourth and Fourteenth Amendment rights. But he also asserted a claim under the federal RICO (Racketeer Influenced and Corrupt Organizations Act).
A federal trial judge refused to dismiss the racketeering claims. RICO makes it unlawful for any person to: (1) use money derived from a pattern of racketeering activity to acquire or maintain control of an enterprise, (2) acquire or maintain control of an enterprise through a pattern of racketeering activity, (3) conduct an enterprise through a pattern of racketeering activity, or (4) conspire to do so.
The plaintiff claimed that the defendants maintained control and conducted the affairs of the Los Angeles Police Department's Rampart CRASH unit through a pattern of racketeering activities, including attempted murder, extortion, narcotics dealing, and witness tampering, in violation of 18 U.S.C. Secs. 1962(b) and 1962(c).
The defendants argued that the plaintiff lacked standing to assert the RICO claim. The plaintiff asserted that he suffered monetary losses based on his inability to work or pursue his career during the two years he was imprisoned. In denying the motion to dismiss the claim, the trial court stated that "a number of courts have accepted or shown a disposition in favor of allowing RICO claims for the pecuniary losses associated with personal injuries caused by racketeering. Accordingly, the court finds that [the plaintiff] has standing to pursue his RICO claims."
The court also declined to dismiss the plaintiff's claim for injunctive relief against similar future misconduct. The plaintiff argued that he was the "victim of repeated instances of misconduct at the hands" of the officers, and that this was "part of a larger pervasive pattern of misconduct" which is "authorized, ordered, condoned, tolerated, acquiesced in, approved of, and ratified" by defendants. He claimed that the alleged misconduct was continuing and that he was "likely to be set up again by Defendants, and that there is a real and immediate threat of serious injury and death." The court ruled that "assuming the truth of" the plaintiff's allegations, a "future threat can be inferred from the alleged pattern of police misconduct."
RICO allows for awards of triple damages for such monetary losses, although such triple damages only apply to the monetary losses proven and not to other damages stemming from alleged violation of civil rights. Additionally, the statute of limitations for a RICO claim is ten years, well beyond the much shorter statute of limitations generally applicable in federal civil rights lawsuits under 42 U.S.C. Sec. 1983, which is determined by state law.
The defendants in the case are expected to file a motion for the judge to reconsider his ruling concerning the RICO claims, and the judge himself requested that they submit and argue such a motion. Future developments in this case will be reported in later issues of this publication. Guerrero v. Gates, #CV 00-7165 WJR(CTx), 2000 U.S. Dist LEXIS 12520 (C.D. Cal. 2000).
SEARCH AND SEIZURE: VEHICLE
Federal appeals court rules that the absence of a visible shoulder harness pulled across the bodies of a motorist and their passenger gave officers in Iowa an articulable suspicion that a state seatbelt law was being violated, justifying an investigatory stop of the vehicle; officer's allegedly perjured testimony that he saw unattached shoulder harnesses hanging down, when vehicle seat belts attached at the seat rather than from above, was irrelevant to the existence of grounds for the stop.
Two Iowa police officers pulled a motorist's vehicle over. One of the officers later stated that they stopped the car because he saw a "slack shoulder harness" dangling in the passenger compartment, leading him to believe that the driver was in violation of a state seatbelt law. He offered this testimony at a criminal trial of the driver and the other occupant of the vehicle on charges involving both the alleged seat belt violation as well as drug charges stemming from marijuana found during a search of the car.
The trial judge determined, however, that it was impossible to see the shoulder belts hanging in the manner that the officer described, since in this particular car, the straps attached to the seats, rather to a place above them. Based on this, the court concluded that the officers had no articulable suspicion sufficient to stop the motorists, and all the charges were dismissed. The two arrestees then filed a federal civil rights lawsuit against the two arresting officers and the city.
Upholding summary judgment for the defendants, a federal appeals court held that, even if the testifying officer committed perjury concerning what he saw that led the officers to stop the car, the officers still had an articulable suspicion that the motorists were violating the state seat belt law, and that this justified their investigative stop of their vehicle.
"It is unreasonable to expect police officers to be aware of all of the idiosyncratic designs of vehicle seat belt systems. It is common knowledge that many, if not most, automobiles now have shoulder harnesses. It is likewise common knowledge that most shoulder harnesses are visible from behind when deployed. We believe that the absence of a visible shoulder harness pulled down and across a driver provides police in Iowa with a reasonable, articulable suspicion that a crime is being committed, and therefore conclude that the stop in this case did not violate the plaintiffs' Fourth Amendment rights."
"The truthfulness and accuracy of" the officer's testimony "are relevant only to the extent that the testimony relates to the existence of a particularized and objective basis for suspecting criminal activity. Since in this case the relevant predicate fact is whether the officers were able to see shoulder harnesses pulled down and across the plaintiffs' bodies, and since all of the parties agree that in this case the officers could not see shoulder harnesses pulled down and across the plaintiffs' bodies, the alleged falsity" of the officer's testimony "is of no consequence whatsoever." Thomas v. Dickel, No. 99-3239, 213 F.3d 1023 (8th Cir. 2000).
INDEX OF CASES CITED
v. City of Napa,
#98-16460, 210 F.3d 1093 (9th Cir. 2000).[150-151]
Dillihunt v. Hitchcock, 32 F. Supp. 2d 1001 (W.D. Tenn. 1999).[147-148]
Guerrero v. Gates, #CV 00-7165 WJR(CTx),
2000 U.S. Dist LEXIS 12520 (C.D. Cal. 2000).[157-158]
Howerton v. Fletcher, No. 98-2795, 213 F.3d 171 (4th Cir. 2000).
Kennell v. Gates, #99-1931, 215 F.3d 825 (8th Cir. 2000).[152-153]
Lee, Estate of, v. Spokane, No. 18347-5-III, 2 P.3d 979 (Wash. App. 2000).
Mississippi Gaming Commission v. Baker,
No. 97-CA-01507-COA, 755 So. 2d 1129 (Miss. App. 1999).[154-155]
Oliver v. Woods, No. 98-4179, 209 F.3d 1179 (10th Cir. 2000).[151-152]
Pacot v. Wheeler, No. 4D99-0269, 758 So. 2d 1141 (Fla. App. 2000).[155-156]
Thibodeaux v. Harris County, Texas, No. 99-21054, 215 F.3d 540 (5th Cir. 2000).
Thomas v. Dickel, No. 99-3239, 213 F.3d 1023 (8th Cir. 2000).[158-159]
White v. Black, #98-21058, 190 F.3d 366 (5th Cir. 1999).[148-149]
Wilson v. Spain, No. 99-2224, 209 F.3d 713 (8th Cir. 2000).
Woodard v. Eubanks, 94 F. Supp. 2d 940 (N.D. Ill. 2000).[149-150]
Wyatt v. Krzysiak, 82 F. Supp. 2d 250 (D. Del. 1999).[156-157]
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