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(Published as VOLUME 2001 NUMBER 338)
Arrestee Suicide/Suicide By Cop
Defenses: Official Immunity
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Public Protection: Crime Victim
Public Protection: Informants
Search and Seizure: Home/Business
Search and Seizure: Person
State Constitutional Claims
Index of Cases Cited
ARRESTEE SUICIDE/SUICIDE BY COP
Officer acted reasonably in shooting and killing a man who, having stated that he would kill officers if he was not killed himself, charged at the officer with a metal object held in a threatening position.
Kansas police officers observed a man running from a car which had been reported stolen. He had a large metal object in his hand, and when they told him to drop it, he shouted at them "Fucking shoot me. You're going to have to kill me or I'll kill you. I want to die."
While the officers attempted to subdue the man through the use of a police dog, he stabbed at the dog, which retreated. He then charged towards one of the officers with the large metal object held in a threatening position. When he was eight feet away from the officer, the officer shot him two times and killed him.
His estate sued the officers and the city for excessive use of force. An intermediate Kansas appeals court found that force used was not excessive under the circumstances. The decedent had stated his intention to kill officers and the officer acted in self-defense. Campbell v. City of Leavenworth, No. 83,833, 13 P.3d 917 (Kan. App. 2000).
Text: <www.kscourts.org/kscases/>. [Cross-reference: Firearms Related: Intentional Use].
DEFENSES: OFFICIAL IMMUNITY
Officer was entitled to official immunity against liability for malicious prosecution under Georgia state law for obtaining arrest warrants, in the absence of any proof that he acted with "actual malice" or intent to cause harm.
A police officer believed that two employees of an animal control center had tampered with evidence to be used in prosecuting animal cruelty claims and obtained warrants for their arrest. Charges were later dismissed at trial, and they filed a malicious prosecution lawsuit in Georgia state court against the officer.
Upholding summary judgment for the defendant officer, an intermediate Georgia appeals court ruled that the officer, because he was acting within the scope of his authority, was entitled to official immunity from liability for malicious prosecution, in the absence of any showing that he had acted with "actual malice" or intent to cause harm to the plaintiffs. This was the appropriate legal standard under state law, the court ruled, rather than requiring that the officer have "reasonably objective probable cause" to seek the arrest warrants.
The officer exercised his discretion in deciding to seek the arrest warrants after conducting his investigation. There was no evidence that the officer acted with "actual malice," even if his actions in seeking the warrants "may have been misguided." Todd v. Kelly, No. A00A0712, 535 S.E.2d 540 (Ga. App. 2000). [Cross-references: False Arrest/Imprisonment: Warrant; Malicious Prosecution].
FALSE ARREST/IMPRISONMENT: NO WARRANT
Officers had probable cause to arrest a man for allegedly attacking another man with a hammer when they observed the other man bloody and battered, despite the arrestee's uncorroborated protestations that he acted in self-defense.
"When one person badly beats another, leaving him bloody and battered, may the assaulter escape arrest by simply asserting, without corroboration, that he was acting in self- defense? Common sense suggests otherwise," a New York federal court stated, and ruled that "the law" also "follows the suggestion."
Officers arriving on the scene of a fight between two men, which involved the use of a hammer to inflict blows, decided to arrest one of the men, despite his claim that it was the other man who had attacked him and that the hammer belonged to the other participant in the fight. Charges against him were later dismissed.
Rejecting the arrestee's claims for false arrest and malicious prosecution, the court found that the arresting officers had probable cause to arrest him under the circumstances. They could have believed his version of the incident, but they were not required to do so. Moscoso v. City of New York, 92 F. Supp. 2d 310 (S.D.N.Y. 2000).
Officer had probable cause to make a warrantless arrest for kidnapping based on statements by arrestee's ex-girlfriend that he had seized her by force and taken her to a remote location against her will.
A man's ex-girlfriend came to a police station and claimed that the man had kidnapped her. She told an officer that her former boyfriend had confronted her in a local parking lot, took her car keys, seized her by force and drove her to a remote location against her will. Although she said he later released her unharmed, she was frightened and wanted to press charges. On the strength of these statements, officers arrested the boyfriend without first obtaining a warrant.
The arrestee was subsequently indicted by a grand jury for kidnapping and simple assault. The charges were later reduced to misdemeanor disorderly conduct, to which he pled guilty. He then filed a federal civil rights lawsuit against one of the arresting officers, the one who had taken his ex-girlfriend's initial statement. The lawsuit also asserted claims against the city on the basis of a "failure-to-train" theory.
A federal court upheld summary judgment for the defendants. It found that the officer had probable cause to make a warrantless arrest on the basis of the ex-girlfriend's statement, which was "credible and unsolicited."
Her statements, "although admittedly one-sided, contained sufficient detail to suggest that the complainant spoke truthfully" and based solely on those statements "a reasonably prudent officer would have sufficient grounds to believe" that the plaintiff had "committed a serious criminal offense."
The court also ruled that the municipality could not be held liable for "inadequate training and supervision of its police officers" when the plaintiff has not first established "that the officers' actions were unlawful." Kiser v. City of Huron, #99-3801, 219 F.3d 814 (8th Cir. 2000).
FALSE ARREST/IMPRISONMENT: WARRANT
Officer acted reasonably in basing his affidavit for an arrest warrant on bank tellers' identification of woman in surveillance photo as bank robber and identification of woman in photo as the person named in the warrant by persons who knew her.
Texas police officers arrested a woman for two bank robberies, based on arrest warrants. An officer investigating the first robbery based his affidavit upon the sworn statements of two bank tellers that the woman pictured in an FBI surveillance picture shown to them was the one who had committed the crime, along with statements by people who knew the woman stating that she was the person in the photograph.
The prosecution against the arrestee was later dropped after another suspect was apprehended, charged, and convicted of the two bank robberies, along with a subsequent one. She sued the officer who swore out the affidavit concerning the first bank robbery, as well as a second officer who relied on it in swearing out his own affidavit concerning the second robbery.
Upholding summary judgment for both defendant officers, a federal appeals court found that the various identifications of the plaintiff relied on by the first officer, together with the seizure, from the plaintiff's home, of clothing similar to that worn by the robber in the picture, was sufficient to make the officer's belief that the plaintiff was the robber reasonable, and entitle him to qualified immunity.
The court found that the officer's appeal to initially uncooperative witnesses' civic duty to testify, without telling them to implicate a specific person, was not "coercion" tainting the identifications. The court also rejected the argument that the first officer should have stated, in his affidavit, that the FBI and U.S. Attorney had determined that they did not have probable cause to make an arrest at that time. "This evidence demonstrates little more than that reasonable officers disagreed. It does nothing to show" that the officer acted unreasonably.
Finally, since the first officer's investigation was reasonable, it was reasonable for the second officer to rely on its result in part in swearing out his affidavit concerning the second robbery. Freeman v. County of Bexar, No. 99-50608, 210 F.3d 550 (5th Cir. 2000).
FIREARMS RELATED: INTENTIONAL USE
Oregon jury awards $8 million, including $4.5 million in punitive damages, against state trooper who allegedly attacked female motorist after stopping her for speeding and then shot her in the shoulder after she attempted to drive away.
A female motorist in Oregon was stopped for speeding by a state trooper, and asked to take some sobriety tests. After she failed the tests and was told she was being arrested, she claimed the trooper slapped handcuffs on her and began beating her. She further claimed that he emptied a can of chemical spray in her face, used a steel baton to beat her, and "then threw her down an embankment."
He allegedly followed her down, straddled her, and began "tugging at her jeans." She stated that she kicked him off her and returned to her car where she shot her as she tried to drive away. The bullet struck her shoulder, which was shattered, resulting in permanent disabilities.
The officer's version of the incident differed. He said that he used increased force because he was unable to subdue the motorist, and that he shot her when she pulled out what he believed to be a gun.
The injured woman sued the officer for violation of her civil rights. No gun was found in her car and a can of mace found in her car did not have any fingerprints on it and did not have any blood splatters on it. She also had not been charged with resisting arrest, although she was charged with driving under the influence of alcohol.
The jury awarded her $8 million in damages, $4.5 million of which consisted of punitive damages against the officer. An award of attorneys' fees is also anticipated, as is an appeal of the jury's award. Conroy v. Henry, No. 99-3074-AA, U.S. Dist. Ct. (D. Ore. Feb. 2, 2001), reported in The National Law Journal, p. A12 (Feb. 19, 2001).
Denver Colorado reaches $1.2 million settlement in lawsuit brought by 12 year-old shot and rendered quadriplegic by police officer while burglarizing a house.
A 12-year-old boy in Denver, Colorado broken into a house, accompanied by a 16-year-old friend. A police officer shot the boy, asserting that he did so in self-defense after the youth pulled a gun on him. The shot left the boy, who is now 15, quadriplegic. He also requires a respirator to breathe.
The boy received probation on the burglary charge after pleading guilty, and then filed a federal civil rights lawsuit against the city, claiming excessive force. In the lawsuit, the plaintiff admitted that he had a gun, but further asserted that it was unloaded and broken, and was tucked under his waistband inside his coat. The officer's partner stated that he did not see a gun in the plaintiff's hand, and the gun was found "under his (the boy's) body." A $1.2 million settlement was approved in the case prior to trial, with the city council voting 9-2 to authorize the settlement. Hollis v. City and County of Denver, No. 99N-1545, U.S. Dist. Ct. (D. Colo., Jan. 29, 2001), reported in The New York Times, National Edition, p. A12 (Jan. 31, 2001).
Federal appeals court modifies consent decree on political spying to allow surveillance of possible terrorist groups which advocate violence prior to when there is reasonable suspicion of imminent violent actions.
A federal appeals court has modified a consent decree limiting police surveillance of alleged subversive activities which grew out of a lawsuit filed by a number of individuals and organizations against the city of Chicago more than twenty-five years ago.
The consent decree imposed "detailed and onerous restrictions" on the power to investigate First Amendment related activities, the court stated.
"The core of the decree, which the City does not seek to modify, forbids investigations intended to interfere with or deter the exercise of the freedom of expression that the First Amendment protects, and requires the City to commission independent periodic audits of the City's compliance with the decree," adding "the threat of civil and criminal contempt to the usual sanctions for infringing civil rights."
But the decree also contained a "dizzying array of highly specific restrictions on investigations of potential terrorists and other politically or ideologically motivated criminals," including:
* "Investigations 'directed toward First Amendment conduct,' a defined term referring to any investigation likely to involve the collection of information about protected activity or the investigation of anyone engaged in such activity, may be conducted only for the purpose of obtaining evidence of past, present, or impending criminal conduct and only if the Chicago police already have a reasonable suspicion of such conduct."
* "Unless 'unavoidably necessary to the investigation of reasonably suspected crime,' the police may not collect information about the political group to which the target of an investigation belongs or about other members of the group or people attending the group's meetings. The investigation must terminate as soon as reasonable suspicion of criminal conduct is dispelled and upon termination all information protected by the First Amendment must be purged from the investigatory file."
* "An investigation may not be conducted on the basis of mere advocacy of violent conduct (what the decree terms 'ideological rhetoric'); only a 'brief preliminary inquiry' is permitted on that basis and it must cease unless it generates a reasonable suspicion of criminal conduct."
* "Use of undercover informants is strictly limited along with the gathering of information at rallies or other public assemblies of advocates of violence and other political extremists."
The appeals court found that "the consent decree has done its job," and that the "instabilities of" the era in which allegedly excessive political surveillance flourished "have largely disappeared." Fear "of communist subversion, so strong a motivator of constitutional infringements in those days, has disappeared along with the Soviet Union and the Cold War."
The court further found that "today the concern, prudent and not paranoid, is with ideologically motivated terrorism," and that the consent decree, in its more stringent restrictions, "renders the police helpless to do anything to protect the public" against a terrorist group that forms in or migrates to Chicago "until the group goes beyond the advocacy of violence and begins preparatory actions that might create reasonable suspicion of imminent criminal activity."
"If police get wind that a group of people have begun meeting and discussing the desirability of committing acts of violence in pursuit of an ideological agenda, a due regard for the public safety counsels allowing the police department to monitor the statements of the group's members, to build a file, perhaps to plant an undercover agent," the court stated. Further, "to continue federal judicial micromanagement of local investigations of domestic and international terrorist activities in Chicago is to undermine the federal system and to trifle with the public safety." Alliance to End Repression v. City of Chicago, No. 99-3825, 2001 U.S. App. LEXIS 374 (7th Cir).
Officer's high-speed pursuit of a motorcyclist who he believed had no valid driver's license was an "emergency call" within the meaning of an Ohio state statute providing immunity for accidents arising during such calls; genuine factual disputes as to whether officer acted in a willful and wanton manner in continuing pursuit, however, required further proceedings.
A police officer engaged in high-speed pursuit of a motorcyclist who he believed did not have a valid driver's license, and who fled from the pursuit. The motorcycle eventually crashed into a guardrail, with a passenger riding in back of the motorcyclist thrown aside. The officer's vehicle then ran over the motorcyclist and crashed into the motorcycle and guardrail. The motorcyclist was pronounced dead at the scene.
The motorcyclist's estate filed a wrongful death lawsuit against the officer and the village which employed him. An intermediate Ohio appeals court found that the officer's suspicion that the motorcyclist did not have a valid driver's license, combined with the motorcyclist's actions of running a red light and fleeing at a high speed, was sufficient to constitute an "emergency call" for purposes of a state statute granting immunity to municipalities for accidents occurring during emergency calls.
This immunity, however, does not protect against liability in instances of willful or wanton misconduct by officers. The court found that there were genuine issues of material fact as to whether the officer's conduct in continuing the pursuit was "willful and wanton" misconduct. The court noted that the officer was familiar with the motorcyclist (which was the basis for his suspicion that he had no valid driver's license). Accordingly, the officer could have discontinued the pursuit and obtained an arrest warrant for him, enabling him to apprehend him under safer circumstances.
There were also disputed facts about how fast the officer was traveling, and the distance the officer maintained between himself and the motorcyclist. The court ordered further proceedings, overturning summary judgment for the defendants. Wagner v. Heavlin, No. 704, 737 N.E.2d 989 (Ohio App. 2000).
Full text: <www.sconet.state.oh.us/>.
NEGLIGENT HIRING, RETENTION, SUPERVISION, & TRAINING
Male officer, shot and injured by female officer he was living with in a romantic relationship, could not recover damages from New York City on theories that it negligently retained the female officer or negligently allowed her to possess her weapon.
Two New York City police officers, one male and one female, were living together and engaged in a romantic relationship while assigned to the same precinct. The male officer was separated from his wife. The female officer shot and seriously wounded the male officer with her service revolver and then committed suicide.
The injured officer sued the city and its police department, claiming that it negligently retained the female officer and/or negligently permitted her to retain her service revolver. An intermediate appellate court upheld the dismissal of the lawsuit, finding that the plaintiff failed to show the existence of a factual question requiring trial, while the defendants demonstrated, as a matter of law, that they neither negligently retained the female officer nor negligently permitted her to keep her weapon. Kopec v. City of New York, 711 N.Y.S.2d 505 (A.D. 2000).
POLICE PLAINTIFF: FIREFIGHTER'S RULE
Police officer injured while trying to rescue fellow officers from a mob could sue an alleged member of the mob for negligence in creating the situation; Massachusetts appeals court rules that the firefighter's rule has "no continuing" application in the state.
A police officer responded to a radio call from fellow officers indicating that they needed assistance. When he arrived on the scene, he found a crowd of men surrounding the officers, punching and kicking them. He positioned himself between the officers and the violent semicircle of men, and attempted to subdue them. He was injured in the process, and sued man who allegedly helped create the disturbance for negligence and wanton and reckless conduct.
A jury returned a verdict in favor of the defendant. An intermediate Massachusetts appeals court ruled that the plaintiff officer was entitled to a new trial because the trial judge erroneously refused to instruct the jury that under the "rescue" doctrine, the defendant may have owed a duty not to negligently create a dangerous situation in which it was foreseeable that the plaintiff officer would be injured while trying to rescue his fellow officers.
The appeals court rejected the defendant's argument that the plaintiff officer was barred from recovering damages under the "firefighter's rule," an exception to the rescue doctrine, under which firefighters and police officers are considered to have assumed the risk of injury arising from the dangers which they face in the performance of their duties.
Noting that there were two statutes in the state that grant police officers the right to file suit against persons such as the defendant, the court found that the state legislature has "thereby expressly chosen not to immunize such individuals from suit," and it concluded that "the firefighter's rule has no continuing vitality in Massachusetts." Hopkins v. Medeiros, #97-P-1369, 724 N.E.2d 336 (Mass. App. 2000).
California police officer's lawsuit for injuries suffered when he was bitten by another officer's dog while engaged in apprehending a suspect was barred by "firefighter's rule" under state law.
During the apprehension of a suspected felon following a vehicular pursuit, a city police officer was bitten by a California Highway Patrol officer's dog, who mistook the officer for the suspect as he held the arrestee at gunpoint. The bitten officer, arguing that the dog was negligently handled, filed a lawsuit for damages in state court against the Highway Patrol officer and his agency.
An intermediate appeals court has ruled that the "firefighter's rule," concerning assumption of risk, barred the plaintiff officer from recovering damages for his injuries. Both officers "shared the objective to effect an arrest" under dangerous conditions. "The duty of care the officers owed to the public under these circumstances precludes their owing a duty of care to each other.
The hazard posed by the police dog is inherent in the activity the public hired plaintiff to perform," so he assumed the risk of being bitten in these circumstances. Farnam v. State of California, No. G021552, 101 Cal. Rptr. 2d 642 (Cal. App. 2000).
PUBLIC PROTECTION: CRIME VICTIM
Officers and city could not be held liable for failure to make forcible entry into woman's apartment following neighbors' 911 call reporting screaming and dog barking coming from inside in the early morning; no liability for murder of woman, allegedly after officers left, when apartment was quiet when officers arrived.
Philadelphia police officers went to a woman's home in response to a 911 call from her neighbors reporting screaming and dog barking coming from her apartment at 4:21 a.m. At the time they arrived, the woman's murderer was allegedly inside the apartment. The officers knocked on the door and received no response, they did not make a forcible entry, and the murderer allegedly killed the woman after they left. Her surviving family members sued the city and the officers, claiming that her constitutional rights were violated by the failure to enter the apartment when responding to the call.
The trial court dismissed the lawsuit. It ruled that the officers and city did nothing to place the decedent in jeopardy, and could not be liable under a "state-created danger" theory. At the time the officers arrived, the apartment was peaceful, and the officers had no contact with the victim herself. Her murder, the court ruled, was not a foreseeable result of their failure to make forcible entry into the apartment.
The court also ruled that the officers were entitled to qualified immunity because the decedent did not have a "clearly established" due process right to be rescued in response to her neighbors' emergency call. Finally, the court ruled that the city did not have any affirmative obligation under the due process clause of the 14th Amendment to "provide the public with adequate emergency rescue services" and could not be held liable for "failing to train officers to perform adequate rescue services." White v. City of Philadelphia, 118 F. Supp. 2d 564 (E.D. Pa. 2000).
PUBLIC PROTECTION: INFORMANTS
UPDATE: Federal appeals court reduces jury award of $98 million for failure to protect informant from being murdered to $1.1 million, while upholding determination that officers should have constantly monitored informant as he faced dangerous situation in attempting to purchase crack cocaine; punitive damages were not available against D.C. and informant's mother had no constitutional claim based on loss of companionship of adult non-dependent son.
A lawsuit by the family of a murdered District of Columbia police informant asserted that they should have provided better protection for him and should have constantly monitored him when he made a dangerous attempt to return to a crack house to purchase additional drugs. Testimony in the case also indicated that the officers involved in the operation did not alert the department about their plan or write it up before the incident. A jury awarded a total of $98 million in damages to the plaintiff, made up of $70.5 million in compensatory damages and $27.5 million in punitive damages against four officers involved in the operation and the District of Columbia police department. The award was reportedly the largest ever returned against the D.C. government. Butera v. District of Columbia, 83 F. Supp. 2d 25 (D.D.C. 1999), reported in Liability Reporter, No. 325, p. 12 (Jan. 2000).
A federal appeals court upheld the jury's finding of negligence in the way the drug buy was handled, finding that this negligence contributed to the informant's death. It upheld a $530,000 compensatory damage award under the D.C. Survival and Wrongful Death Act and a total of $570,000 in punitive damages against the four officers. It overturned, however, $70 million in compensatory damages and $27 million in punitive damages on constitutional claims, reducing the total award from $98 million to $1.1 million.
On the constitutional claim, the court ruled that the "state endangerment" theory of liability argued by the plaintiffs was not "clearly established" prior to the informant's death, so that the individual officers were entitled to qualified immunity. The court also ruled that there was no "parental due process right to the company of an adult child who is independent," so that the informant's mother had "no grounds for asserting a constitutional violation. Finally, the court also ruled that, pursuant to City of Newport v. Facts Concerts, Inc., 453 U.S. 247 (1981), and subsequent D.C. law, punitive damages may not be awarded against the District in the absence of "extraordinary circumstances," such as "where a municipality or its policymakers have intentionally adopted the unconstitutional policy that caused the damages in question."
The court found no such circumstances in this case. Butera v. District of Columbia, No. 00-7008, 235 F.3d 637 (D.C. Cir. 2001).
Text: <www.ll.georgetown.edu:80/Fed- Ct/cadc.html>. [Cross-references: Damages: Punitive; Defenses: Qualified (Good-Faith) Immunity; Family Relationships].
SEARCH AND SEIZURE: HOME/BUSINESS
Broad generalizations that drug addicts are "prone to steal," contained in affidavit for a search warrant, were insufficient to provide probable cause for the search and seizure of methadone clinic patient records during investigation of theft from nearby jewelry store; no showing, however, that county policy or custom caused search.
A police detective investigating a theft from a jewelry store noticed that there was a methadone clinic nearby the store. He decided that it would aid his investigation if he could establish the identities of the patients who had been receiving treatment at the clinic during or near the time of the theft. The clinic refused to disclose any information in the absence of a court order.
The detective obtained a search warrant to search the clinic and its records, based on an affidavit he submitted to a magistrate judge, which stated his belief, on the basis of his training and experience, that "it is common for people who have addictions" to narcotics, including heroin, cocaine, and methadone "to engage in" criminal activities to support their addiction, and that the clinic's records, therefore, held information on "possible suspects." After a search of the clinic, and the seizure of files containing information about and photographs of 79 patients, one of the patients sued the detective and the county which employed him.
The lawsuit alleged violation of the patient's Fourth Amendment rights to be free of unreasonable searches and seizures, as well as of 42 U.S.C. Sec. 290dd-2, a federal statute regulating the disclosure of drug treatment medical records. A federal appeals court upheld the denial of qualified immunity to the defendant detective. While the federal statute protecting the confidentiality of drug treatment records did not give the patient a private right of action for its violation, the court ruled that the search and seizure of the records violated clearly established Fourth Amendment rights.
The patient had a reasonable expectation of privacy in his medical records and the search warrant affidavit, which contained only "broad generalizations" that drug addicts are "prone to steal things" to support their addictions was insufficient to provide probable cause for a search warrant. No reasonable officer could have believed otherwise, and the magistrate's issuance of the warrant in these circumstances was not a "reasonable mistake," but rather an "unacceptable error" showing "gross incompetence or neglect" which could not excuse the officer's own actions.
At the same time, the court found no evidence that the search warrant was obtained or the search was conducted pursuant to any official policy or custom, so there was no basis for liability on the part of the county. Doe v. Broderick, Nos. 99-1893, 99-1894, 225 F.3d 440 (4th Cir. 2000).
Text: <www.law.emory.edu/4circuit>. [Cross-reference: Governmental Liability: Policy/Custom].
SEARCH AND SEIZURE: PERSON
Officer's "deceptive" use of a civilian, allegedly identified as an officer although he was only an unauthorized "ride-a-long", to detain two persons entering a hotel lobby, if true, violated clearly established law, so that he was not entitled to qualified immunity.
A man and a woman were staying in a District of Columbia hotel while attending a conference on Native American health services. As they entered the hotel lobby, they were stopped and questioned by two men dressed in plainclothes who allegedly identified themselves as city police officers. The second man, in fact, was not an officer or even a police department employee, but rather a "civilian ride-a-long" accompanying an officer on his tour of duty that evening. Further, while he had accompanied the officer several times in the past in this manner, he had never completed the department's proper "ride-a-long" authorization forms.
The officer later explained that he stopped the two individuals because the woman appeared to fit the description of a prostitute whom the police department suspected of a robbery. After interviewing the two, however, he was satisfied that she was not the suspect sought.
The two individuals questioned filed a federal civil rights lawsuit alleging that the officer's actions--"effectuated with the assistance of a civilian but without probable cause, reasonable suspicion, or a warrant"--constituted unlawful search and seizure. The woman asserted that she was accused of being a prostitute solely because of her race being African- American (the man stopped and questioned with her was Native American).
A federal trial court ruled that the defendant officer was not entitled to qualified immunity. The officer "did not have a right to share the power of his badge with an unauthorized civilian in order to effectuate a stop." The court ruled that the right of the plaintiffs to be protected under the Fourth Amendment from using a civilian to "deceptively" stop and detain them was clearly established.
The court pointed to Wilson v. Layne, 526 U.S. 603 (1999), noting that in that case, officers relied on a policy of the federal Marshal's Service that explicitly "contemplated that media who engaged in ride-alongs might enter private homes," so that it was "not unreasonable for the officers to rely on a formal policy of their department."
In this case, in contrast, the officer's actions were in direct violation of police department policy which required officers to receive approval before allowing a civilian to ride along. Polk v. District of Columbia, 121 F. Supp. 2d 56 (D.D.C. 2000). [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].
STATE CONSTITUTIONAL CLAIMS
New York court rules that arrestee whose conviction was overturned on the basis of a defective affidavit for search warrant was not entitled to pursue a state constitutional claim for unreasonable search and seizure; exclusion of the evidence was an adequate remedy when the arrestee was prosecuted, so no damage remedy was required.
As a result of a search warrant issued on the basis of information provided by a confidential informant, a woman's residence was searched by New York police officers. A quantity of cocaine was found and she was convicted of drug charges. On appeal, the conviction was overturned, with the highest court in New York ruling that the affidavits submitted in support of the warrant application did not sufficiently establish the reliability of the informant, so that the evidence seized should be suppressed.
After the arrestee was released from prison, she filed a lawsuit in state court asserting a state constitutional claim for violation of the New York state constitutional prohibitions on unreasonable search and seizure. An intermediate New York appellate court ruled that the plaintiff could not pursue her state constitutional claim. While the state of New York recognized a state constitutional claim for unreasonable search and seizure in Brown v. State of New York, 674 N.E.2d 1129 (N.Y. 1996), that was a case in which none of the persons stopped and questioned were prosecuted, so that neither injunctive, declaratory, nor exclusionary relief was "adequate to protect against the invasion of personal liberty interests suffered by the claimants," so that "damages would be the appropriate remedy."
In this case, the plaintiff was prosecuted and her "suppression motion was ultimately granted, her conviction reversed and the indictment was dismissed." In these circumstances, "exclusion was a meaningful deterrent and, therefore, plaintiff received an adequate remedy for the invasion of her personal liberty interests," so that a "damage remedy for constitutional tort is unavailable to her." Martinez v. City of Schenectady, 714 N.Y.S.2d 572 (A.D. 2000). [Cross-references: Search and Seizure: Home/Business].
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Alliance to End Repression v. City of Chicago,
No. 99-3825, 2001 U.S. App. LEXIS 374 (7th Cir).[23-24]
Butera v. District of Columbia, No. 00-7008, 235 F.3d 637 (D.C. Cir. 2001).[27-28]
Campbell v. City of Leavenworth, No. 83,833, 13 P.3d 917 (Kan. App. 2000).
Conroy v. Henry, No. 99-3074-AA, U.S. Dist. Ct. (D. Ore. Feb. 2, 2001),
reported in The National Law Journal, p. A12 (Feb. 19, 2001).
Doe v. Broderick, Nos. 99-1893, 99-1894, 225 F.3d 440 (4th Cir. 2000).[28-29]
Farnam v. State of California, No. G021552, 101 Cal. Rptr. 2d 642 (Cal. App. 2000).
Freeman v. County of Bexar, No. 99-50608, 210 F.3d 550 (5th Cir. 2000).
Hollis v. City and County of Denver, No. 99N-1545, U.S. Dist. Ct. (D. Colo., Jan. 29, 2001),
reported in The New York Times, National Edition, p. A12 (Jan. 31, 2001).[22-23]
Hopkins v. Medeiros, #97-P-1369, 724 N.E.2d 336 (Mass. App. 2000).[25-26]
Kiser v. City of Huron, #99-3801, 219 F.3d 814 (8th Cir. 2000).[20-21]
Kopec v. City of New York, 711 N.Y.S.2d 505 (A.D. 2000).
Martinez v. City of Schenectady, 714 N.Y.S.2d 572 (A.D. 2000).[30-31]
Moscoso v. City of New York, 92 F. Supp. 2d 310 (S.D.N.Y. 2000).
Polk v. District of Columbia, 121 F. Supp. 2d 56 (D.D.C. 2000).[29-30]
Todd v. Kelly, No. A00A0712, 535 S.E.2d 540 (Ga. App. 2000).
Wagner v. Heavlin, No. 704, 737 N.E.2d 989 (Ohio App. 2000).[24-25]
White v. City of Philadelphia, 118 F. Supp. 2d 564 (E.D. Pa. 2000).
Page numbers in [brackets] refer to the print edition.
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