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(Published as VOLUME 2000 NUMBER 333)
Assault and Battery
Defenses: Notice of Claims
Defenses: Statute of Limitations
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Search and Seizure: Home/Business
Index of Cases Cited
ADMINISTRATIVE LIABILITY: TRAINING
City could not be held liable for alleged failure to adequately train officers in the use of deadly force when there was no showing that officers did anything wrong in firing at men who had fired at them and then attempted to run away; plaintiffs could not relitigate the issue of whether they had fired at the officers after they were convicted of assault on a police officer, which resolved the same factual question.
A federal trial court in Missouri rejected claims that a city should be held liable for failure to adequately train police officers in the use of deadly force after first finding that the officers involved in the incident in question acted reasonably in shooting at the plaintiffs, who they had observed in an alley firing weapons.
The officers had announced their presence and ordered the men not to move, but the men responded by firing at the officers and attempting to run away. At that point, the officers could reasonably fire at them to prevent their escape.
"In order for municipal liability to attach" for failure to train, "there must first be an underlying violation of the plaintiff's constitutional rights" by an officer, the court noted.
The court held that the arrestees could not relitigate the issue of whether or not they had fired shots at the officers, since this factual issue had necessarily been decided in their criminal trials, which had resulted in their convictions for assault on a law enforcement officer. They had received a "full and fair" opportunity to contest that issue in the prior proceeding, and could not reopen that issue now. Jones v. City of St. Louis, No. 4:98 CV 2158 DDN, 92 F. Supp. 2d 949 (E.D. Mo. 2000). [Cross-references: Defenses: Relitigation; Firearms Related: Intentional Use].
ASSAULT AND BATTERY: PHYSICAL
"Uncomfortable" search of youth's groin area and use of "minimal" force while arresting and handcuffing him did not constitute excessive use of force; officer was entitled to qualified immunity when conduct caused bruising which arrestee admitted disappeared quickly and for which he did not seek medical treatment.
A 17-year-old boy was assisting some friends in erecting and disassembling band equipment during a "May Day festival" in Alabama. During the disassembly, he began wrestling with a friend, landing on top of him on another youth's car and then dragging his friend by the leg to the ground. An officer and the town police chief were dining in a nearby restaurant when they were alerted to the incident by a waitress who shouted "fight." They rushed out to the parking lot, where the officer arrested the boy.
The arrestee claimed that the officer grabbed him from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van, and then searched his groin area in an "uncomfortable manner, and handcuffed him," causing what he described as bruising to his forehead, chest, and wrists. He sued the officer for unlawful arrest and excessive use of force.
Ruling that the defendant officer was entitled to qualified immunity, a federal appeals court found that the force used, as a matter of law, was not excessive, but rather "de minimis" (minimal). The plaintiff himself admitted that the "bruises disappeared quickly and he did not seek medical treatment" for them. "A minimal amount of force and injury, as present in the facts of this case, will not defeat an officer's qualified immunity in an excessive force case." Nolin v. Isbeli, #99-10040, 207 F.3d 1253 (11th Cir. 2000).
Text: <http://www.law.emory.edu/11circuit/index.html>. [Cross-reference: Defenses: Qualified Immunity].
ATTORNEYS' FEES: FOR DEFENDANTS
Trial court properly assessed attorneys' fees against motorist who sued officer for alleged illegal search of her car when she presented no evidence of illegality and even conceded at trial that she had consented to the search; awarding attorneys' fees against her on a claim surrounding a second stop was an abuse of discretion when her claim was not frivolous, although a jury rejected it.
A female motorist sued officers who stopped her vehicle on two occasions, claiming that the first stop was illegal and that the officer verbally abused her and illegally searched her car. On the second stop, she claimed she was illegally stopped, that her car was illegally searched, and that the officers confiscated and discarded her driver's license. She claimed physical injury, mental anguish, emotional trauma, and other damages. She also named the city as a defendant.
At trial, she testified during cross-examination that she consented to the search of her car during the first stop, and was issued a ticket for improper lane usage, which she paid. She did not present any evidence that the stop was illegal or that the city was aware of (or failed to correct) any "vicious propensities" or "abuse of authority" by the officers. The trial court therefore granted judgment as a matter of law in favor of the officer who conducted this search and the city.
The case against the two other defendant officers, concerning the second stop, went to a jury, which returned a verdict in favor of the officers. The trial court assessed attorneys' fees against the plaintiff in the amount of $32,000.
On appeal, the plaintiff did not contest the amount of the fees, but argued that the trial court failed to use the proper legal standards as to whether attorneys' fees should have been assessed at all. Under 42 U.S.C. Sec. 1988, a prevailing defendant is awarded attorneys' fees only when the lawsuit was "frivolous, unreasonable or without foundation."
The appeals court found that there was no abuse of discretion on the part of the trial court in assessing attorneys' fees against the plaintiff for suing over the first traffic stop. While the mere fact that the claims were dismissed without reaching a jury did not, standing alone, prove that they were frivolous, in this case, they clearly were frivolous, as the plaintiff "offered no evidence at trial" that the officer violated any of her rights and admitted that the officer "obtained her consent to search her vehicle." She also put on no evidence implicating the city, and persisted in pursuing her claims against it.
On the second vehicle stop, however, there was evidence from both the plaintiff and her sister and friend that an officer searched her jacket without her consent. There was also testimony from the plaintiff that one of these officers took her driver's license and never gave it back. While the jury chose to believe the officers rather than the plaintiff and her witnesses on these claims, the plaintiff did present evidence requiring a complete trial to resolve. Awarding attorneys' fees on this portion of the case, the court found, was an abuse of discretion. On remand, the trial court must determine what the appropriate amount of attorneys' fees to award are. Myers v. City of West Monroe, No. 98-30729, 211 F.3d 289 (5th Cir. 2000).
DEFENSES: NOTICE OF CLAIMS
Georgia notice of claims statute only applied to claims that married couple arrested after school board meeting had against the city, not to claims against individual city employees; couple's counter-claim for alleged abusive litigation was improper in officer's lawsuit against them for injuries, since it could only be brought after the termination of the first lawsuit.
A Georgia police officer arrested a married couple following an incident at a school board meeting. During the arrest, an altercation ensued, during which both the officer and the couple alleged suffered injuries. Two separate lawsuits arose out of the incident.
In the first, the officer sued the couple for her personal injuries, and they counterclaimed for their injuries and for "abusive litigation." The trial court granted summary judgment to the defendant officer. An intermediate Georgia appeals court, noting that an "abusive litigation" claim cannot be brought until after the "final termination of the proceeding," ruled that summary judgment was improper on the abusive litigation claim, since it was not then properly before the court, and ordered instead that the abusive litigation claim be "dismissed without prejudice," in other words, allowing the couple to refile it if they want. The summary judgment in this case was not challenged as to its other results.
In the second lawsuit, the couple named the city, its police department, and various city employees, including the arresting officer, as defendants, claiming negligence in the initial arrest and subsequent investigation, negligence in "protecting prisoners and providing medical care," "false arrest, false swearing, false charges, false evidence, and use of excessive force." The trial court granted summary judgment to the defendants, because the couple failed to provide a written notice of claim before suing, as required by state law. It also ruled that the claims were barred because they should have been raised as "compulsory counterclaims" in the previous lawsuit.
In this case, the appeals court found that the notice of claims requirement did not bar the claims against individual city employees since the state statute in question only requires notice "if the claim is against the municipality; it does not require" notice "to individual employees of a municipality." Further, only the plaintiff couple's claims against the arresting officer were barred as having been compulsory counterclaims in the first lawsuit, since the city, its police department, and the other individually named city employees were not parties in the first lawsuit. Further proceedings were therefore ordered on the claims against other individual city employees, while the claims against the city and its police department remained barred by the notice of claims statute. Jacobs v. Littleton, Nos. A99A2014-A99A2016, 525 S.E.2d 433 (Ga. App. 1999). [Cross-references: Abuse of Process; Defenses: Counterclaims; Malicious Prosecution; Police Plaintiffs].
DEFENSES: STATUTE OF LIMITATIONS
Running of one year statute of limitations to bring a federal civil rights claim over alleged political discrimination in revocation of store's firearms sales license and raid on store accrued on the day of the raid and a lawsuit filed 23 years after the fact was time barred even if plaintiffs claimed they did not learn the reason for the raid until later.
The owners of a hardware store in Puerto Rico licensed to sell firearms sued various law enforcement officers and officials, alleging that their license was revoked and their store raided because of their political views in support of Puerto Rican independence. They claimed that this violated their rights of free speech and free association.
The court dismissed the lawsuit as barred under an applicable one-year statute of limitations. The court found that the running of the statute of limitations began on the day that the store owners were told that their license was revoked and police confiscated the store's firearms and ammunition even if the plaintiffs allegedly did not learn until later that the reason for this conduct was purported "political discrimination."
In this case, the court found that the plaintiffs' claims "accrued in early 1970," so that the applicable one year statute of limitations "has long since run." The plaintiffs did not file their lawsuit until over 23 years after the events in question, and showed no legitimate reason for having failed to do so. Ramos v. Roman, 83 F. Supp. 2d 233 (D. Puerto Rico 2000). [Cross-references: Firearms Related: Licenses; First Amendment].
FALSE ARREST/IMPRISONMENT: NO WARRANT
Officer was justified in relying on statements by employees of recreation park implicating restaurant employee in theft of money from cash receipts, including their statements that the suspect, when questioned, had confessed; arrestee's mere statement that "I didn't do it," made to the officer while on the way to jail, did not defeat probable cause for the arrest.
An amusement park suspected a server in one of its restaurants of stealing money from the receipts. An analysis they did of the restaurant's computerized transaction log revealed a discrepancy between the number of guests that the employee "rung up" on the register and the number of guests he actual served. After two of the park's security investigators interviewed the employee, he alleged confessed to stealing money by pocketing receipts. This information was furnished to an officer from the county sheriff's department, who questioned the employee. When the employee invoked his right to remain silent, questioning ceased, and the officer arrested the employee for third-degree felony employee theft.
The employee subsequently sued the sheriff's office for false arrest and imprisonment and conspiracy to violate his civil rights. The trial court granted summary judgment to the defendant sheriff, who was sued in his official capacity. It found that the officer had probable cause to make the arrest, based on statements he took from three park employees and his independent evaluation of documentary evidence they furnished him. Further, prior to the arrest, the plaintiff "did nothing to raise any doubt" in the officer's mind as to the validity of his reported confession.
The court rejected the argument that the officer could not rely on the statements of employee's of the park since they had "financial motives for creating probable cause" for his arrest. Police officers are "generally entitled to rely on the veracity of information supplied by the victim of a crime." The court also found no merit with the plaintiff's argument that the officer should have questioned the truthfulness of the employee's alleged confession because he purportedly told the officer, when on the way to jail, that "I didn't do it."
"To be sure, if probable cause was defeated every time a criminal suspect cried 'I didn't do it,'" the court commented, "police officers would never have probable cause to make an arrest." Ruszala v. Walt Disney World Company, 93 F. Supp. 2d 1323 (M.D. Fla. 2000).
Officers had probable cause to make a warrantless arrest of two vehicle occupants following a drug-sniffing canine's alert to $11,000 in cash they were carrying, much of it concealed in the shoes of one man, together with other facts concerning the registration of the vehicle uncovered during the ensuing investigation.
Two men were traveling in a new vehicle registered the day before in a state in which neither man lived. The owner of the vehicle did not have a driver's license. Both men were carrying considerable amounts of cash (over $11,000 in all), with much of it stuffed into the shoes of one of the men. When officers stopped the vehicle, two alerts from a drug sniffing canine brought their attention to the shoes and the cash, and further investigation revealed the other facts, which resulted in them making a warrantless arrest of the vehicle's occupants.
A federal appeals court ruled that the officers were entitled to qualified immunity from the arrestees' federal civil rights lawsuit. "A drug-sniffing canine alert is sufficient, standing alone, to support probable cause for a search," the court reasoned. And, in this case, the dog alert as well as the totality of facts and circumstances known to the officers following their investigation was sufficient to establish probable cause for an arrest. Resendiz v. Miller, No. 99-30593, 203 F.3d 902 (5th Cir. 2000).
FALSE ARREST/IMPRISONMENT: WARRANT
Officer could not be held liable for deliberately providing false information in an affidavit for an arrest warrant when there was no evidence that he knew there was any problem with the truthfulness of the witnesses who gave statements.
A Maryland arrestee sued a police officer, claiming that he deliberately provided false information in an affidavit for an arrest warrant. The officer took a statement from a woman who stated that the arrestee fired several shots at her and a male companion as they drove through his neighborhood. Another officer took a statement from the male companion which contained the same information. During the first officer's investigation, he discovered 10 grams of crack cocaine in the driveway adjacent to the arrestee's house, which one of the witnesses' admitted that he threw on the ground in the midst of the gunfire, in order to avoid being caught with the drugs by the police.
The arrestee never denied firing the shots, but claimed that he fired them at a car radiator, not at the two people, and did so in order to "scare them away" because they had come to burglarize his house. The officer obtained a warrant for the man's arrest on two counts of assault with intent to murder and two counts of reckless endangerment. He was acquitted on all counts by a jury.
A federal trial court granted the defendant officer summary judgment. In the absence of any proof that the officer knew that there was anything false about the two witnesses' statements regarding the circumstances under which the plaintiff shot at them, he could not be found to have deliberately provided false information to obtain the arrest warrant.
The plaintiff's arguments, the court noted, focused on the "veracity of the statements" provided by the witnesses, rather than the officer's "alleged role in the fabrication of the statements," and on his acquittal as proof that the witnesses' statements were not "credible." But the only relevant inquiry in the lawsuit was whether the officer "knew that the two witnesses' statements were false." While the plaintiff argued that the officer should have known that the two witnesses were unreliable, the officer stated that he never met them previously. Dutton v. Montgomery County, MD., 94 F. Supp. 2d 663 (D. Md. 2000).
FIREARMS RELATED: INTENTIONAL USE
UPDATE: After new trial is granted on $41.02 million jury award, second New York jury awards $92 million to 17-year-old male rendered paraplegic by police bullet; off-duty officer fired at plaintiff after plaintiff had shot at another man who had hit him; officer asserted that plaintiff was pointing weapon at him when he fired.
A 17-year-old male standing on a street corner with his girlfriend became involved in an altercation with another man who hit him in the mouth. The youth obtained a gun from his girlfriend and fired a shot in the direction of the other man and two friends accompanying him. While this shot did not hit anyone, an off-duty police officer arrived on the scene after hearing the sound.
The officer approached the 17-year-old, who was still holding the weapon, a 9 mm automatic. The officer asked the suspect to drop the weapon and to get on the ground. According to the officer, the suspect did not obey repeated commands to do so, but instead lifted his weapon and pointed it at the officer's head, at which time the officer shot. According to the youth, he did respond to the commands by dropping and kneeling.
Two shots fired by the officer rendered the 17-year-old a paraplegic "unable to move from the midchest down." A lawsuit against the city claimed that the officer used excessive force, and, as previously reported, a New York state court jury awarded the plaintiff a total of $41.02 million in damages. Evidentiary rulings that kept out of evidence assertions by the city that the plaintiff was a gang member and drug dealer. He pled guilty, in a previous criminal proceeding, to charges of weapons possession and reckless endangerment. Rodriguez v. City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), Sept. 30, 1999, reported in The National Law Journal p. A11, November 22, 1999, Liability Reporter No. 325, p. 8 (January 2000).
The trial judge set aside the jury's award and granted a new trial. During the second trial, the city introduced testimony from an eyewitness who stated that the plaintiff had pointed his weapon at the officer. The plaintiff argued that the bullet which went through his neck traveled in a downwards direction and that this would have been "impossible" if both he and the officer were standing at the time, as the eyewitness testified. The plaintiff also argued that there were inconsistencies between the eyewitness's testimony at trial and an earlier statement. The plaintiff's version of the incident was that he was kneeling in a "surrender" position at the time the officer shot at him. The second jury awarded a total of $92 million in damages.
The award included $75 million for future pain and suffering, $5 million for past pain and suffering, $10.5 million for future custodial and medical care, $295,000 for past medical expenses and $1.5 million for lost earnings. Rodriguez v. City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), May 18, 2000, reported in The National Law Journal, p. A16 (June 26, 2000). [Cross-reference: Off-Duty/Color of Law].
GOVERNMENTAL LIABILITY: POLICY/CUSTOM
Georgia county sheriff's action in arresting, for assault, his wife's co-worker, who had a verbal confrontation with her, was not county policy since the county had no say in how he performed his duties. Sheriff, however, was not entitled to qualified immunity, since no reasonable officer could have thought the mere verbal confrontation constituted a criminal assault.
A Georgia county sheriff's wife worked for a social service agency. One of her coworkers entered her office and berated her for the way she allegedly treated him and clients of the agency. He told her that "your attitude sucks," and "If I were your supervisor, I would fire your ass." He made these remarks from about 9 feet away, and allegedly closed the office door as he entered, standing between her and the door. While he "raised his voice," she did not claim that he made a fist or any move to strike her, and he left after several minutes.
The next day, the sheriff appeared before a judge and obtained an arrest warrant for the coworker for simple assault, as well as a "good behavior warrant." He told the judge that the coworker blocked his wife's exit from her office and put her in great fear of her own personal safety. During the coworker's brief time in custody, the sheriff allegedly told him that "you found a bigger bully, didn't you?" After the arrestee was released on bond, the prosecutor dropped the warrants.
The arrestee sued the sheriff and the county for violating his federal civil rights. A federal trial court ruled that the sheriff's conduct could not be said to be county policy for purposes of the lawsuit, since, under state law, it "has no say in what actions he takes."
Further, his duties are spelled out by a state statute, and a county may not use its budgetary power to deny the sheriff funds to carry out his law enforcement duties or "dictate how they should be discharged. Georgia sheriffs are subject to investigation and suspension by the governor, rather than by county officials, and his salary, although paid from county funds, is set at a minimum by the state. "In sum, although Georgia law declares sheriffs to be county officers, and directs that counties elect and pay their sheriffs, it cedes to counties no meaningful level of control over a sheriff's law enforcement activities." The court therefore granted the county's motion for summary judgment.
At the same time, the court also denied the sheriff's motion for qualified immunity. It found that a "reasonable" officer would not have thought that the "mere verbal confrontation" that the arrestee engaged in with the sheriff's wife "constituted criminal assault." If it were otherwise, "the police would have probable cause to jail anyone involved in a heated argument." There was uncontradicted evidence that the sheriff knew that the arrestee "had done nothing" to threaten his wife, other than stand near her and "yell at her." While being yelled at is "undeniably hurtful and distressing, no reasonable person would fear immediate, violent injury from such conduct." Fletcher v. Screven County, Georgia, 92 F. Supp. 2d 1377 (S.D. Ga. 2000). [Cross-reference: Defenses: Qualified Immunity].
PUBLIC PROTECTION: CRIME VICTIMS
Montana Supreme Court rules that police officers who transported a suicidal girl to the hospital, and allowed her sister to ride along, entered into a special relationship of custody or control over the sister, imposing a duty to adequately supervise her; court reinstates lawsuit against the city for failure to protect hospital nurse from assault by the sister.
Two police officers in Montana encountered two girls fighting in the street, with blood visible on both girls. They separated them, learned that they were sisters, and also noted that both girls had been drinking. Their police report later characterized both of them as having been "intoxicated." They also learned that one of the girls had cut her wrists in an attempt to commit suicide, while her sister had been trying to restrain her.
The officers decided to place the suicidal girl in protective custody and to transport her to the hospital for medical and psychological evaluation. They decided that they had no basis for taking the other sister into custody. "Although it was not necessary," they also decided to transport the other sister to the hospital. She resisted, however, riding in a separate squad car, so the officers allowed both sisters to ride together in one car.
At the hospital, "although it was contrary to standard police practice," the officers allowed the other sister "to engage in the use of force" to remove her suicidal sister from the squad car. Eventually, when she was unsuccessful, one of the officers succeeded in removing the suicidal sister from the vehicle. A nurse came out to render assistance, and the suicidal sister started screaming profanities at her. The other sister also started yelling, and suddenly and without warning took a swing at the nurse and struck her in the jaw as she attempted to reach out to grab the suicidal sister's arm and inspect her injuries.
The force of the blow caused the nurse to fall backwards against the open door of a squad car, injuring her back. The officers then restrained the other sister and placed her in the squad car. The injured nurse sued the city for negligence in failing to exercise proper control over an intoxicated female (the other sister) they had transported to the hospital. The trial court ruled that, since the assault was not "reasonably foreseeable," the city owed no duty to the nurse. The Supreme Court of Montana disagreed, and ordered a trial of the claim.
The court found that based upon the other sister's "combative and agitated demeanor on the day in question, a reasonably prudent defendant would have foreseen that a failure to adequately restrain or otherwise control" her "could pose an unreasonable risk of harm to others in her vicinity." Further, both officers stated that the "standard police practice of separating reported combatants, from which they departed in this case, is designed in part for the protection and safety of bystanders who happen to be in the vicinity of the incident." While the assailant was not under arrest, "by voluntarily assuming custody of" her and transporting her to the hospital, "the officers assumed the 'ability to control' her actions to prevent harm to bystanders" who fall within "the scope of the risk which negligent supervision would foreseeably entail." This created a special relationship between the officers and the sister, which "gave rise to a duty of care to foreseeable plaintiffs" like the nurse.
The court also found that reasonable persons could differ as to whether the assailant presented a foreseeable risk of injury to persons in her immediate vicinity, so that summary judgment was improper. Even though her actions were the "intervening criminal act of a third party," the jury could still determine whether these actions were ones which the defendants might "reasonably foresee." LaTray v. City of Havre, No. 99-286, 999 P.2d 1010 (Mont. 2000).
SEARCH AND SEIZURE: HOME/BUSINESS
Officers' warrantless entry into a home where unsupervised underage drinking was going on was justified by exigent circumstances of possible escape of intoxicated teenagers and destruction of evidence while a search warrant was being obtained, along with the danger to the public of intoxicated driving; officers were entitled to qualified immunity.
A woman and her son brought a federal civil rights lawsuit against three police officers and the town that employed them, challenging the legality of a warrantless entry into their private residence to end an underage, unsupervised drinking party. An officer began surveillance of the home, where the woman lived with her two sons, both of whom were under twenty-one, based on his suspicion that an underage drinking party might be taking place at the house that evening.
Massachusetts state law makes it a misdemeanor for any person under twenty-one years of age and not accompanied by a parent or legal guardian to knowingly possess any alcoholic beverages. The officer's suspicion was based on numerous complaints received over the past several years, including one received just a few days earlier, from neighbors concerned about noise, traffic, and possible illegal activity associated with the home. The neighbors told the officer that the woman frequently left her sons alone, and the boys, unsupervised, threw "wild parties." The woman's ex-husband, who was also the boys' father, told the officer that he was concerned that "drinking and drug abuse" were occurring on a regular basis at the home.
The officer observed large numbers of teenagers entering the house and cases of beer being transported to the garage. He did not obtain a search warrant. When he believed he had probable cause to conclude there was underage drinking, he summoned a number of other officers. In response to a knock on the door, the boys told officers their parents were not there and that no one in the house was over twenty-one. Officers then entered without consent.
Nineteen teenagers were arrested, including some who allegedly attempted to climb out an open bedroom window. A search warrant was obtained thirty minutes later, and the boys' mother was charged with drug-related offenses and with contributing to the delinquency of a minor. One of her sons was also charged with a drug offense and with illegal possession of alcohol. These charges were dismissed after the state court suppressed the evidence on the ground that the officers had initially entered the residence without consent or exigent circumstances.
In the federal civil rights lawsuit, the plaintiffs conceded that the officers had probable cause to believe illegal underage drinking was taking place, but argued that they needed a warrant to enter. The jury returned a verdict for the defendants.
The federal trial court refused to set aside the jury's decision, declining the plaintiff's motion for judgment as a matter of law. "Although the Framers of the Constitution did not carve teenage drinking parties out of the Fourth Amendment's protection against warrantless home entries, the potential threat to life and safety posed by a large underage drinking party with no parent home, and concerns for destruction of evidence, were exigent circumstances permitting the warrantless entry here." The court found that an objectively reasonable officer in these circumstances could conclude that, once they spoke to the boys who answered the door, some intoxicated teenagers would have fled if they had paused to obtain a search warrant, while others "would have attempted to destroy or at least conceal evidence" of the drinking. Additionally, the officer watching the house had observed some teenagers driving to the residence and leaving in their vehicles, so the officers could conclude that there was a "risk to public safety" if more were allowed leave.
The judge concluded that the officers were entitled to qualified immunity, since an objectively reasonable officer could have believed that their warrantless entry into the home was lawful under the circumstances. The court also rejected the claim that the town was liable for a Fourth Amendment violation. Howes v. Hitchcock, 66 F. Supp. 2d 203 (D. Mass 1999). [Cross-references: Defenses: Qualified Immunity].
Officers were entitled to qualified immunity for making a warrantless search of a woman's residence based on consent given by a non-resident part-time caretaker for the resident, but not for entering and searching her bedroom.
Officers responded to a report of a fight and were told by a man that he had fought with someone named "George," who had ran down the street and possibly into a "little white house" on the other side of the street. Two officers went to the residence and saw a man standing in the doorway. They told him they were looking for "George," and the man identified himself as "Pete," telling the officers that he "didn't think no George ran into" the residence. "Pete" denied living in the house, but said that he "stays there sometimes, taking care of the lady that lives at the house."
The man allowed the officers into the house, and a search of the house followed, which allegedly included looking into drawers, cabinets, and other places where a person could not hide. The owner of the house, who was present and in bed, claimed she was "shocked and distressed" by the search, and by the officers entry into her bedroom. She sued the officers for violation of her federal civil rights.
Acting on the plaintiff's motion for summary judgment, a federal trial court ruled that the man, the woman's occasional caretaker, did not have actual authority to consent to the search of the house, as he did not live there, have any property there, or ever enter the residence without the owners permission or in her absence. The court also found that the officers could not reasonably have believed that the caretaker had "actual authority" to consent to the search, based on what he told them, since he lacked control over the house for most purposes. He was not the owner's roommate and was not involved in a romantic relationship with her.
At the same time, the court ruled that the officers were entitled to qualified immunity for searching the common areas of the house (the living room and kitchen), based on the caretaker's consent, since it was not "completely established" whether there are no circumstances under which a nonresident caretaker could authorize such a search. Finally, the court found that the officers were not entitled to qualified immunity for searching the woman's bedroom, where she was in bed, since they could not have reasonably believed that the caretaker had even the "apparent authority" to authorize a search of the bedroom. A reasonable officer, the court found, would have inquired further before searching the bedroom, so the plaintiff was granted summary judgment against the defendant officer who searched it.
Further proceedings will be held on claims against the city regarding the search. Kaspar v. City of Hobbs, 90 F. Supp. 2d 1313 (D.N.M. 2000).
U.S. Supreme Court strikes down federal Violence Against Women Act (VAWA) as unconstitutional; some plaintiffs were attempting to use statute to assert claims arising out of alleged sexual assaults by law enforcement personnel.
In 1994, Congress enacted into law the Violence Against Women Act of 1994, 42 U.S.C. Sec. 13981. This statute declared that "all persons within the United States shall have the right to be free from crimes of violence motivated by gender," and provided, in part that a person who is the victim of such an assault could bring a lawsuit for compensatory and punitive damages in federal court, as well as seeking injunctive and declaratory relief. A number of lawsuits were brought under the law, including lawsuits for sexual assaults alleged to have been engaged in by law enforcement personnel. See Williams v. Board of Cty. Com'rs of Unified Gov., 192 F.R.D. 698 (D. Kan. 2000) (suit brought under VAWA against officer and board of county commissioners alleging rape by officer; court declined to order plaintiff to answer interrogatories about her sexual history finding that answers were of marginal relevance). [Cross-reference: Procedural: Evidence].
The stated constitutional authority for passage of the VAWA was the commerce clause and section 5 of the 14th Amendment (granting Congress the power to enforce the provisions of the 14th Amendment, including the guarantee of equal protection). The U.S. Supreme Court, upholding a decision of a federal appeals court, Brzonkala v. Virginia Polytechnic Institute and State University, #96-1814, 169 F.3d 820 (4th Cir. 1999), full text: <http://www.law.emory.edu/4circuit>, has struck down this law as an unconstitutional exercise of power by Congress.
The Court held that the Commerce Clause of the U.S. Constitution did not give Congress the authority to pass the law. Congress may not, the Court ruled, "regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce." The "regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States." United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).
Text: <http://www.law.vill.edu/Fed-Ct/sct.html> [Cross-reference: Supreme Court Actions].
Strip search of entire fifth grade elementary school class in an attempt to find $26 collected for a class trip which was allegedly missing was "disproportionate" to the harm of missing the money and therefore an unreasonable search; police officer and teacher, however, were entitled to qualified immunity for conducting search in 1996, when the law on the subject was not "clearly established."
A fifth grade student brought an envelope containing $26 to his teacher. This was money he had collected by selling candy to enable the class to take a field trip to another state. The envelope disappeared from a table shortly thereafter, and could not be found in a search around the classroom. A police officer involved in the Drug Abuse Resistance Education (DARE) program arrived to teach the students a drug awareness lesson, and the teacher left the room, leaving the officer with the children.
The teacher consulted with other school officials and then returned to the room. She looked through the students' personal belongings, including bookbags, desks, and decorative pumpkins on each desk. She also had each student remove his or her shoes, allowing her to pat down their socks, asked them to turn out their front pockets and allow her to pat down their back pockets, etc.
The officer suggested that some children might be wearing an extra set of pants and that the money might be located in a lower layer of clothing. The male children were broken into groups of four and five and sent to the boys' bathroom with the officer. Some of the children claimed that the officer, in the bathroom, pulled down his pants and underwear to his ankles to demonstrate what the children were required to do (which the officer denied, stating that he only unfastened his pants and belt and dropped his pants to his upper thigh). They also stated that the officer told them that if they did not pull down their pants and lift their shirts, they would be suspended from school or "taken to jail," and that they dropped their pants, and some boys dropped both their pants and their underwear.
A student from another classroom entered the bathroom while this was taking place and was allegedly also searched, despite protesting that he was not in the class. Similar searches were allegedly conducted of female students in the girls' bathroom by the female teacher. The missing money was not found.
A lawsuit was brought against the officer, the county, and various school authorities alleging that this was an unconstitutional strip search of the fifth graders.
A federal trial court ruled that a strip search of the entire class was "disproportionate" to the harm sought to be remedied, and therefore constitutionally unreasonable. However, the court also held that the school authorities and police officer were entitled to qualified immunity from liability since the law on the subject was not "clearly" established at the time of the search, in 1996. The court also found no evidence that an alleged "failure to train" the officer adequately resulted in the incident. Thomas v. Clayton County Bd. of Education, 94 F. Supp. 2d 1290 (N.D. Ga. 1999). [Cross-reference: Defenses: Qualified Immunity].
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Brzonkala v. Virginia
Polytechnic Institute and State University, #96-1814,
169 F.3d 820 (4th Cir. 1999).[141-142]
Dutton v. Montgomery County, MD., 94 F. Supp. 2d 663 (D. Md. 2000).[135-136]
Fletcher v. Screven County, Georgia, 92 F. Supp. 2d 1377 (S.D. Ga. 2000).[137-138]
Howes v. Hitchcock, 66 F. Supp. 2d 203 (D. Mass 1999).[139-140]
Jacobs v. Littleton, 525 S.E.2d 433 (Ga. App. 1999).[133-134]
Jones v. City of St. Louis, No. 4:98 CV 2158 DDN, 92 F. Supp. 2d 949 (E.D. Mo. 2000).
Kaspar v. City of Hobbs, 90 F. Supp. 2d 1313 (D.N.M. 2000).[140-141]
LaTray v. City of Havre, No. 99-286, 999 P.2d 1010 (Mont. 2000).[138-139]
Myers v. City of West Monroe, No. 98-30729, 211 F.3d 289 (5th Cir. 2000).[132-133]
Nolin v. Isbeli, #99-10040, 207 F.3d 1253 (11th Cir. 2000).[131-132]
Ramos v. Roman, 83 F. Supp. 2d 233 (D. Puerto Rico 2000).
Resendiz v. Miller, No. 99-30593, 203 F.3d 902 (5th Cir. 2000).
Rodriguez v. City of New York, No. 17422/96 (Sup. Ct., Kings Co., New York), May 18, 2000,
reported in The National Law Journal, p. A16 (June 26, 2000).[136-137]
Ruszala v. Walt Disney World Company, 93 F. Supp. 2d 1323 (M.D. Fla. 2000).[134-135]
Thomas v. Clayton County Bd. of Education, 94 F. Supp. 2d 1290 (N.D. Ga. 1999).[142-143]
United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).[141-142]
Williams v. Board of Cty. Com'rs of Unified Gov., 192 F.R.D. 698 (D. Kan. 2000).[141-142]
Page numbers in [brackets] refer to the print edition.
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