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(Published as VOLUME 2001 NUMBER 341)
Administrative Liability: Training
Assault and Battery: Handcuffs
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Off-Duty/Color of Law
Other Misconduct: Conspiracy
Other Misconduct: Dead Bodies
Public Protection: Crime Victims
Search and Seizure
Index of Cases Cited
ADMINISTRATIVE LIABILITY: TRAINING
County liable for $767,302 in damages and $77,500 in attorneys' fees to arrestee injured by untrained deputy sheriff during arrest; appeals court upholds liability on the basis of failure to train; plaintiff also awarded $20,000 in punitive damages against deputy.
A "young, inexperienced reserve sheriff's deputy, without the benefit of training or supervision" participated in a car chase and arrest involving the use of force in Oklahoma. Because of the manner in which the arrest was accomplished, the arrestee suffered severe knee injuries.
In prior proceedings, the U.S. Supreme Court ruled that the defendant county could not be held liable on the basis of its decision to hire the deputy, despite his having a record of numerous traffic violations, in addition to an arrest for assault and battery, and one for resisting arrest. Bd. of The County Comm'ns of Bryan County v. Brown, 520 U.S. 397 (1997), reported in Liability Reporter, No. 297, p. 131 (Sept. 1997). (Single hiring decision could not be the basis for municipal liability in absence of evidence that sheriff consciously disregarded high risk that deputy would use excessive force).
On remand, the trial and appeals court have ruled that the county, given notice of the need to train the deputy, and the "obvious" consequences of the failure to train him, could be held liable for deliberate failure to do so. The appeals court ruled that the sheriff's decision not to train the deputy "constituted a policy decision for which the County is liable under Sec. 1983."
The court found that the jury could conclude from the evidence that the county had a policy of "providing no training itself for its regular officers and reserve deputies," but rather hired individuals for full-time positions who had already received training. No funds were available for training, and the deputy involved in this incident testified that he received no training through the county, including a statement that he did not even receive "any written documentation from Bryan County" as to his "duties as a reserve officer."
While the deputy claimed that he had received some training from the state commission on law enforcement education and training, the jury could reasonably have rejected this, since he "could not remember" when he attended, and there was some evidence that he had attended no classes before the incident involved in the lawsuit.
There was also evidence which reasonably supported a conclusion that the county "also failed to provide formal, and very little effective, supervision for its reserve deputies who were 'on the street.'" The sheriff acknowledged that he gave "no explicit instructions to any deputy about his responsibilities to supervise a reserve deputy."
The damages upheld against the county include $36,000 for lost income, $180,000 for lost earning capacity, $5,000 for past physical pain, $10,000 for future physical pain, $1,000 for past mental pain and anguish, $1,000 for future mental pain and anguish, $75,000 for past physical impairment, $300,000 for future physical impairment, $1,000 for past physical disfigurement, $2,000 for future disfigurement, $500 for damage to reputation, $65,802 for past medical expenses, $90,000 for future medical expenses, and $77,500 in attorneys' fees. Twenty thousand dollars in punitive damages was also awarded to the plaintiff against the deputy. Brown v. Bryan County, OK., No. 98-40877, 219 F.3d 450 (5th Cir. 2000).
Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-references: Governmental Liability: Policy/Custom; Negligent Hiring, Retention, Supervision and Training]
ASSAULT AND BATTERY: HANDCUFFS
Officer acted objectively reasonably in handcuffing motorist who eluded capture for thirty-to-forty minutes; motorist's alleged injuries from handcuffing were not significant enough to support an inference of excessive force.
A speeding motorist eluded police during a high-speed pursuit for approximately thirty to forty minutes, before he hid in his vehicle in a haystack and then surrendered under the aimed service revolvers of three officers. The motorist exited his vehicle only after two orders from one of the officers. Once this officer was upon the motorist, he holstered his gun and began handcuffing him. During the handcuffing, the motorist claimed that the officer grabbed his wrists and shoved his arms up into the center of his back, pushing him chest first into his truck.
The motorist sued the officer for excessive use of force. Both parties agreed that the incident concluded in two to three seconds. The trial court ruled that the officer's use of force was not objectively unreasonable under the circumstances. The officer could have objectively believed that the plaintiff was a then-fleeing felon wanted for assault and battery of a police officer as well as for several car thefts, and he had no guarantee that the plaintiff was not armed. The fact that in actuality, the plaintiff was not a fleeing felon and was not involved in a more serious crime than speeding did not alter the result, since the officer could act on his reasonable beliefs at the time.
The motorist's initial disobedience of the officer's orders further gave the officer grounds to worry that he might attempt another "improvident move" before the handcuffs were secured. The court also noted that the plaintiff exhibited no signs of significant injury when the incident occurred, and made no complaints to the officers about his alleged injuries. While the plaintiff and his doctor claimed that he suffered permanent injuries, no "treating physician independently attributed his condition to the handcuffing," and the doctor whose report the plaintiff presented "failed to find to a reasonable degree of medical certainty" that the handcuffing had caused the injuries. Krider v. Marshall, 118 F. Supp. 2d 704 (S.D.W.Va. 2000).
FALSE ARREST/IMPRISONMENT: NO WARRANT
Officers did not violate the Fourth Amendment in carrying out a warrantless arrest of a man for a misdemeanor assault not committed in the officers' presence, federal appeals court rules.
A Chicago man was arrested at his job for misdemeanor assault by officers acting without a warrant, based on a complaint by a customer of the employer that the arrestee had shown him a lead pipe during an argument and stated that "I'm going to kill you." The customer left the premises and filed a complaint three days later. The complainant also told officers that the arrestee had renewed his threats against him through two co-workers on the very day that the complaint was filed.
Charges against the arrestee were later dropped, and he filed a federal civil rights lawsuit against the two arresting officers and the city, claiming that it was unreasonable to arrest him without a warrant for misdemeanor assault under these circumstances. He asserted that city police authorized officers to make a full custodial arrest for a misdemeanor that did not involve a breach of the peace and that had not been committed in the officers' presence.
A federal appeals court, upholding summary judgment for the defendants, ruled that this did not violate the plaintiff's Fourth Amendment rights. The court noted that an Illinois statute, 725 ILCS 5/107-2, authorized warrantless misdemeanor arrests under these circumstances, and found that the officers had probable cause to make an arrest, based on the complainant's statements. The appeals court ruled that the Fourth Amendment does not necessarily require a warrant for a misdemeanor arrest for a misdemeanor allegedly committed outside the officer's presence. Woods v. City of Chicago, No. 99-4069, 234 F.3d 979 (7th Cir. 2000).
FALSE ARREST/IMPRISONMENT: WARRANT
Warrant clerk was not liable for arrest of wrong man after she accidentally transposed criminal complaint numbers in issuing arrest warrant, as she did not intend to cause his detention, but arresting officer might be liable if he had reason to believe that warrant had been erroneously issued.
In operating a computer system to generate an arrest warrant, a warrant clerk transposed two numbers on the criminal complaint, resulting in a warrant being issued for the wrong person. An elected constable in the county arrested the man named in the warrant at his home, despite the fact that the address given in the warrant was different and that the arrestee provided release documents and a driver's license which would seem to indicate that he was no longer on parole for DUI. The constable did not conduct further investigation or call the officer listed on the warrant for further information, but took the arrestee to the sheriff's office, where he was strip-searched, fingerprinted, inoculated, and placed in the county jail, where he remained for approximately five days because the probation services department and local courts were closed for the New Year's holiday.
After he was released when the mistake was realized, the arrestee filed a federal civil rights lawsuit against county, the warrant clerk, and the arresting constable for false arrest.
A federal appeals court ruled that the erroneously issued, but "facially valid" arrest warrant could not supply probable cause for the plaintiff's arrest, since there was no reason to believe he had committed any offense. The warrant clerk, however, could not be held liable, since her mistake was inadvertent and there was no evidence that she intended to cause the plaintiff's arrest.
Further proceedings were required, however, as to whether the arresting constable acted reasonably in going ahead with the arrest despite evidence that he had reason to believe that the warrant might have been erroneously issued. The court dismissed claims against the county, as there was no evidence of any county policy or custom of issuing erroneous arrest warrants. Berg v. County of Allegheny, No. 98-3557, 219 F.3d 261 (3rd Cir. 2000).
County was not liable for alleged failure to allow mother of children to contest county's obtaining of permanent custody of her children, when there was no showing that it was a county policy or custom to deny parents a hearing; county social worker who allegedly failed to notify state court that mother wanted to assert her parental rights, however, was not entitled to absolute immunity, as she was not a "legal advocate" or prosecutor in the case.
The mother of several children brought a federal civil rights lawsuit against a county and a county social worker involved in proceedings that terminated her parental rights and put her children in foster care. The lawsuit claimed that the social worker effectively denied her a hearing and misinformed her about the status of the proceedings, telling her that the county already had permanent custody of her children when that was not the case.
A federal appeals court ruled that the county could not be held liable, even if the allegations were true, since there was no showing that there was any official county policy or custom of disposing of child custody issues without hearing from each of the child's parents. Further, the social worker and the prosecutor involved in the case were not final decisionmakers for the county.
At the same time, the court rejected the social worker's claim that she was entitled to absolute prosecutorial immunity for her role in allegedly failing to notify a state court that the children's mother had made contact and wished to assert her parental rights. The appeals court noted that the social worker was not acting in the capacity of a "legal advocate" in taking those actions, and was not a "prosecutor" in the case, making decisions to bring legal proceedings or how to conduct them. Holloway v. Brush, No. 96-3732, 220 F.3d 767 (6th Cir. 2000).
Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-references: Defenses: Absolute Immunity; Governmental Liability: Policy/Custom].
FIREARMS RELATED: INTENTIONAL USE
Jury had to determine whether officer who broke passenger window in pursued vehicle once it stopped had reason to believe that passenger, who may have been only reacting to breaking of window, was reaching for a weapon, justifying officer's shooting and killing of passenger; no qualified immunity granted.
Police officers engaged in a high-speed chase of a vehicle that came to a stop only after it hit a chain link fence at the end of a vacant lot. An officer used his flashlight to break the passenger window in the vehicle, telling the passenger in the vehicle to raise his hands. The passenger did so, but then allegedly shifted his eyes to his left, dropped his hands, and reached to the floor in the area between his legs and the console.
Thinking that the passenger was reaching for a weapon, the officer shot him in the back and killed him. No weapon was found in the vehicle, and the family of the deceased passenger asserted that his movement to the left was a reaction to the breaking of the passenger window.
In a lawsuit against the officer by the decedent's family, a federal appeals court denied qualified immunity to the defendant officer, finding that it was possible for a jury to conclude that the officer either did or did not have probable cause to believe that the passenger was reaching for a weapon and therefore posed a serious threat of death or serious physical harm to the officer or others. Further proceedings were therefore justified. Ribbey v. Cox, No. 99- 4022, 222 F.3d 1040 (8th Cir. 2000).
Text: <www.wulaw.wustl.edu/8th.cir>. [Cross- references: Defenses: Qualified Immunity].
Animal rights activist could lawfully be barred from premises of city animal shelter when she engaged in "rude and disruptive conduct" interrupting the shelter's business.
An "animal rights" activist repeatedly visited a city's animal shelter, engaging in arguments with staff members as they attempted to provide service to members of the public. On one occasion, while a member of the public was attempting to see if his lost dog was present, she intervened in the conversation, accusing a shelter staff member of being a liar and falsely telling the man that the dog was not present. On another occasion, she attempted to convince another man not to leave an abandoned dog at the shelter, because the shelter would "kill it."
She was ushered out of the shelter by police on three occasions based on a shelter rule prohibiting "insolent, profane, or derogatory language." Rejecting the activist's argument that her banning from the shelter was a violation of her First Amendment rights, a federal appeals court ruled that it was not unlawful to remove her when shelter officials were "confronted with what they perceived was rude and disruptive conduct" by her. Mcafee v. Deale, #99-2361, 2000 U.S. App. LEXIS 21411 (4th Cir.).
Motorist's statement to officer who stopped him that "I'll see you out" could be protected First Amendment expression if not meant as a threat of immediate harm; statement did not need to be on a matter of "public concern" to be protected speech.
New York officers stopped a motorist for a number of traffic violations. During the stop, the motorist accused one of them of harassing him because of a prior incident involving the officer and motorist. An argument ensued, during which the motorist said, "You know you f---ed with the wrong person, pal. Okay, because I didn't do nothing wrong" and "I'll see you out and, um, and we'll have drink together, pal."
While the officers issued the tickets and allowed the motorist to proceed, they then stopped him a second time and placed him under arrest for "harassment in the second degree and resisting arrest." The motorist was later acquitted of both charges and sued the officers for false arrest and imprisonment, and violation of his First Amendment rights.
The trial court refused to grant summary judgment to the defendant officers, finding tat there was a genuine issue of material fact as to whether the officers had probable cause to make the arrest, and concerning whether the motorist's words could reasonably be viewed as a threat to the officer. The court also rejected the argument that the motorist's statements could not be protected under the First Amendment, since they did not concern a matter of "public concern."
The court noted that the First Amendment "guarantees all persons freedom to express their views," and protects "a significant amount of verbal criticism and challenge directed at police officers," citing City of Houston v. Hill, 482 U.S. 451 (1987). Unless such speech is shown "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest," it is protected. "Pure, non-obscene speech is protected unless the words, by their very utterance, inflict injury or tend to evoke immediate violence or other breach of the peace." The court found, viewing the evidence in the light most favorable to the plaintiff, that the plaintiff was not threatening immediate harm to the officer. Naccarato v. Scarselli, # 98-CV-1115, 124 F. Supp. 2d 36 (N.D.N.Y. 2000).
Officer was not entitled to qualified immunity for engaging in high-speed pursuit of driver operating a stolen vehicle, including pursuit of vehicle once it began to go the wrong way on an interstate highway; further proceedings ordered in lawsuit by family of deceased motorist struck by pursued vehicle.
A police officer in Minnesota engaged in a high-speed pursuit of a driver operating a stolen vehicle. At one point, the pursued vehicle began to go the wrong way on an interstate highway, and crashed into another motorist's vehicle, killing the driver. The decedent sued the officer for violation of civil rights.
A federal appeals court noted that the appropriate inquiry to determine whether the officer's conduct rose to the level of a "due process deprivation under the Fourteenth Amendment" was whether the officer acted in a manner "so egregious, so outrageous" as to serve to "shock the contemporary conscience," citing County of Sacramento v. Lewis, 523 U.S. 833 (1998). The appeals court ruled that the officer was not entitled to qualified immunity, and would have reasonably known that his actions might give rise to liability.
Throughout the chase, the court noted, that officer "had no reason to suspect" that the pursued driver was "guilty of anything other than the low-level felony of unauthorized use of a motor vehicle. The court further noted that the officer had "ample time to deliberate and weigh these considerations" of the balance between the need to stop the suspect and the "high-speed threat to everyone within stopping range."
There was some evidence which "suggests he made a deliberative decision to continue the chase and to be indifferent to the dangerous obviously inherent in his conduct." Under these circumstances, there was a genuine issue of fact for trial as to whether the officer acted improperly in continuing the chase. Feist v. Simonson, No. 99- 1687, 222 F.3d 455 (8th Cir. 2000).
Text: <www.wulaw.wustl.edu/8th.cir>. [Cross- reference: Defenses: Qualified Immunity].
City's use of regulation barring any "obstruction" on city streets to arrest homeless man for sleeping in a cardboard box on public property is upheld by a N.Y. federal court.
A New York federal trial judge has upheld as constitutional the city's application of a regulation prohibiting any "obstruction" on city streets to arrest homeless persons for sleeping in cardboard boxes on public property. The lawsuit against the regulation was brought by a homeless man taken into custody for sleeping in a box, held 27 hours, strip-searched, and given a summons. The federal judge dismissed all of the plaintiff's claims except those related to the strip-search. The court found that the police had probable cause to make the arrest and that the section of the city's administrative code in question was not unconstitutionally vague. Betancourt v. Giuliani, No. 97 Civ 6748 (JSM), 2000 U.S. Dist. LEXIS 18516 (S.D.N.Y.).
OFF-DUTY/COLOR OF LAW
City liable for $400,000 to motorist shot by off-duty Colorado officer; department adopted a policy requiring officers to always be on duty and always be armed, but provided no training on how to handle police response when off-duty, and without police vehicle, uniform, or radio.
An off-duty Colorado police officer, not in uniform and driving his own car, became involved in an argument with another motorist. He walked up to the other motorist's vehicle, and drew his service revolver out of his jacket. He allegedly pointed the gun at the motorist's face and shouted that he was a police officer, but did not display a badge or other identification. The other motorist drove away and the officer followed, eventually firing several shots into the car, hitting the motorist three times. The officer later claimed that the other motorist had brandished a weapon at him, and that he fired because he feared that the other motorist was both reaching for a weapon and attempting to flee.
The injured motorist sued the officer and the city. The claims against the city alleged deficiencies in the municipality's police officer training. Claims against the officer were settled for $150,000, and a jury awarded the plaintiff $400,000 in damages against the city for violating the plaintiff's civil rights by providing inadequate training to the officer.
A federal appeals court upheld this award, based on failure of the city to train its officers adequately with respect to department policies stipulating that officers were considered to always be on duty and were required to be armed at all times. The plaintiff had argued that police officers were not instructed how to take "police action" when they were off-shift and without their uniforms, police vehicles, radios, "and other accoutrements of law enforcement."
Indeed, there was testimony that officer training programs "purposefully did not distinguish between on-shift and off-shift scenarios." In this case, the officer believed that he was required to take police action after thinking he saw the other motorist brandish a gun, but he could not properly pull him over "because he was not in his patrol car, failed to adequately identify himself as a police officer because he was not in uniform, and inappropriately escalated the violence level of the encounter because he was unable to call for back-up."
There was expert witness testimony in the case that if departments adopt an always armed/always on duty policy, it is "imperative that officers be trained on how to take police action in the different circumstances presented when they are off-shift." The officer himself stated that he felt "ill-equipped" to handle the incident and had "never received training in how to handle this type of situation when he was off-shift." Brown v. Gray, No. 99-1134, 227 F.3d 1278 (10th Cir. 2000).
Text: <www.kscourts.org/ca10/>. [Cross-references: Administrative Liability: Training; Firearms Related: Intentional Use; Governmental Liability: Policy/Custom].
OTHER MISCONDUCT: CONSPIRACY
Officers could not be liable for conspiracy to violate arrestee's rights when no evidence showed that they "formed an agreement to purposely violate" his rights.
Officers were summoned to a hotel restaurant where restaurant personnel were having an argument with a patron in a wheelchair. The officers later stated that patron initially refused to leave the premises, as requested, and then agreed to leave, asking that the officers assist him into his wheelchair, but that he then began violently resisting them as they attempted to do so. They arrested him for unlawful entry and disorderly conduct, but no conviction followed. The patron, in his version of the incident, claimed that the officers assaulted him without provocation, despite his voluntary agreement to leave the restaurant.
He and his wife sued the officers and hotel/restaurant personnel for false arrest/imprisonment, and also attempted to state a claim against the officers for "conspiracy" to violate his constitutional rights. While the trial court allowed the false arrest/imprisonment claims to proceed, it ruled that the conspiracy claim should be dismissed, since there were no alleged facts which, if true, would show that the officers "formed an agreement to purposely violate the rights of the plaintiffs." Parker v. Grand Hyatt Hotel, No. CIV.A.98-2453 (RMU), 124 F. Supp. 2d 79 (D.D.C. 2000).
OTHER MISCONDUCT: DEAD BODIES
Jury awards $3.75 million against village for police chief's failure to recover bodily remains of murder victim after dogs alerted officers to the presence of human remains at the edge of a pond in a junkyard.
An Ohio woman was beaten to death by her boyfriend, who was later convicted of her murder. Approximately five days after her death, a village police department conducted a search for her body in a local junkyard.
During the search, two dogs allegedly alerted officers to the presence of "retrievable human remains" at the edge of a pond at the junkyard. Despite this, according to the woman's family, the police chief announced, "we're done for the day" and called off the search, despite a suggestion from a county police lieutenant that the pond be drained. When officers returned the next day, it looked like something had been dragged out of the water, and there were footprints at the bottom of the pond. The junkyard in question was owned by relatives of the murderer, and the body was never recovered.
The surviving family of the murder victim sued the village, alleging that the police chief interfered with the "property interest the family had in preserving the remains of their loved one." They asserted that, at the time of the first search, the police chief had effective "control over and effective possession of the remains," but "abandoned those remains, permitting them to be removed and hidden from discovery."
A jury awarded the family $3.75 million against the village, and an appeal is expected in the case. Culberson v. Doan, No. C-1-965, U.S. Dist. Ct. (S.D. Ohio), reported in The National Law Journal p. A14 (March 19, 2001).
Audio tape of police radio, including sound of siren in unmarked car being activated, was properly admitted into evidence and shifted the burden to the motorist plaintiff to show the inauthenticity of the tape; his mere assertion that he had heard no siren did not create a genuine issue of fact in his lawsuit over the stop and search of his vehicle.
Two plainclothes officers patrolling in an unmarked police vehicle saw a motorist commit what they believed was a traffic violation. They activated their vehicle's siren and signaled to the motorist to pull over. He did not do so, and instead continued driving away, within the speed limit, for twelve blocks, until some marked police vehicles blocked his path. During the pursuit, a dispatcher checking the vehicle's license plate number informed the officers, erroneously, that the driver had 13 different aliases.
The officers allegedly pulled the motorist out of his vehicle, pulled his arms behind his back, and then pushed him against the hood of his car, handcuffing him. A search of the motorist and his vehicle, including the glove box, passenger compartment, and trunk was conducted, but no contraband was found. The motorist did lack proof of valid insurance. He subsequently claimed that the stop and search of his vehicle and person violated his Fourth Amendment rights, and that excessive force was used against him.
At trial, the judge rejected the plaintiff's argument that the officers had not activated their siren and that he had no reason to know that they were officers. The defendant city and officers introduced into evidence an audio recording of the police radio, which showed that the siren had indeed been activated. Upholding this result, a federal appeals court noted that the defendants had introduced an affidavit by one of the officers that he had listened to the tape, recognized the voice as his own, and that the siren sounded like the one in the unmarked squad car. The city also submitted an affidavit from an employee of its officer of emergency communications, who stated that he listened to the tape, and that it did not have "gaps" or unexplained pauses. He also stated that the siren in the tape came from the officers' unmarked car.
The appeals court upheld summary judgment for the defendants. The plaintiff did not create a genuine issue of fact merely by saying that he had not heard the siren. The evidence presented by the defendants "shifted the burden" to him to show "inauthenticity, because once the foundation is laid by clear and convincing evidence, the opponent of admission has the burden to rebut."
The appeals court also found the searches in question reasonable as incident to arrest for lack of a valid insurance card. The lack of proof of insurance, combined with the motorist's refusal to pull over and the erroneous information about his 13 aliases provided a basis for the searches in question. The court also rejected his claim that the officers should have decided that a search was unnecessary based on his status as a physician and a minister, and found that any force used was reasonable under the circumstances. Smith v. City of Chicago, No. 99-2965, 242 F.3d 737 (7th Cir. 2001). [Cross-references: Search and Seizure: Vehicle].
PUBLIC PROTECTION: CRIME VICTIMS
UPDATE: $26 million award against city for failure to protect woman against alleged murder plot by killers hired by her boyfriend overturned; no city policy alleged increased the danger to her, at most it left her in the same danger she was already in.
A woman was shot four times by two men in Houston, resulting in her paralysis from the chest down. She alleged, in a lawsuit, that the men had been paid, along with a number of others, by her former boyfriend, a wealthy "health spa magnate" who purportedly wanted her dead. She was awarded $32.1 million in the suit against him, but this award was overturned on appeal.
She then filed a lawsuit against the city in federal court, claiming that the city police department had violated her constitutional rights by failing to protect her and, indeed, taking actions that interfered with her possible protection. The suit claimed that a man who had been offered money to kill her had spoken to officers and offered to be her bodyguard to prevent her being murdered. The suit claimed that officers told him that an investigation would be conducted and that he should not protect her since this might have the effect of fouling up the investigation.
The suit further asserted that no investigation of this was conducted, even though the woman complained to officers about a prior attempt on her life and other incidents. She also asserted that whatever investigation was conducted on prior complaints was assigned to officers who had connections of some sort to her former boyfriend, including officers allegedly hired off-duty for various jobs by an "unsavory private investigator" who worked for the boyfriend.
A jury in the case awarded the woman $22.3 million in damages against the city on a "state-created danger" theory. With the addition of attorneys' fees and costs, the award grew to over $26 million. Piotrowski v. City of Houston, H-95-4046, 1998 U.S. Dist. LEXIS 10079 (S.D. Tex.), reported in Liability Reporter No. 307, p. 78 (May 1998).
A federal appeals court has overturned this award, finding that the plaintiff had failed to prove that any of the alleged municipal policies or customs were the "moving force" causing her injuries. Even if the city did have a policy, for instance, of acquiescence in police officers' moonlighting for the private investigator, despite his prior criminal record, this was insufficient to show that it was the "moving force" that caused the plaintiff to be shot or that it "resulted in a 'state created danger' to her life."
None of the private investigator's prior "misdeeds were contract killings," so there was no evidence that the city could have been deliberately indifferent to the likelihood that officers moonlighting" for the investigation "would get involved in murder for hire," or that the officers "knew of or had any role" in the investigator's "attempt to have" the plaintiff killed. Other policies argued by the plaintiff, including failure to adequately investigate and discipline officers, failure to prosecute individuals harassing her, or allegedly affirmatively assisting the murder plot, were either not proved, or, in the case of failure to prosecute, could not be the basis for municipal liability.
The appeals court, noting that it had never previously adopted the "state-created danger" doctrine, further stated that "even if we were to adopt it," the plaintiff could not recover" in this case, since it requires that the plaintiff show that "the state actors increased the danger to her" and acted "with deliberate indifference. In this case, the plaintiff "knew" that her boyfriend "was trying to kill her." Unlike "other cases in which government officials placed persons in danger, the City at most left her in an already dangerous position." The "affirmative assistance" she claimed that municipal employees gave to the plot consisted of allegedly providing a police mug shot to help identify her and failure to warn her of a tip about the murder plot. "Neither of these circumstances, however, actually increased the danger to her." Piotrowski v. City of Houston, No. 98-21032, 237 F.3d 567 (5th Cir. 2001), full text: <www.law.utexas.edu/us5th/us5th.html>. rehearing & rehearing en banc denied, 2001 U.S. App. LEXIS 5076. [Cross-reference: Domestic Violence].
SEARCH AND SEIZURE: BUSINESS/HOME
Sheriff's department was not liable for execution of "no knock" search warrant on the wrong residence when city police officer who obtained the warrant stated the wrong address in the application; city officer, however, was not entitled to immunity and will face trial on whether his error rose to the level of incompetence; court finds that no municipal policy or custom was shown, hence no municipal liability.
A New York city police officer applied for a "no knock" search warrant for a residence where he believed drugs were being sold. He asked another officer to check the address, and this officer mistakenly gave him an address two numbers off from the residence intended. The warrant, when issued, had an accurate and specific physical description of the correct residence, but the wrong address.
City officers and deputies from the county sheriff's department together executed the warrant against the improper residence, using battering rams to crash through the front door of the house. The occupants of the residence brought a federal civil rights lawsuit against city police officers and personnel of the county sheriff's department.
An intermediate New York appellate court found that the search warrant was "facially valid," and that the "technical error" of having listed the wrong address did not alter this. The county further demonstrated that the sheriff's department played no role in the events leading up to the issuance of the warrant with the error, so that sheriff's personnel had an objectively reasonable belief that they were acting in a lawful manner in entering the residence.
The court reached a different conclusion as to the city police officer who obtained the warrant. "The same City police officer conducted the investigation, applied for the warrant, supplied the description of the premises and directed the raid. Whether his conduct constituted a mistake that rose to the level of incompetence is a factual determination warranting a trial." The court did further hold, however, that the plaintiffs had failed to demonstrate that any official municipal custom or policy caused the claimed violation of their rights. Claims against the city were therefore dismissed. Rossi v. City of Amsterdam, 712 N.Y.S.2d 79 (A.D. 2000).
SEARCH AND SEIZURE: VEHICLE
Officers acted reasonably in making investigatory stop of vehicle driving at half the allowable speed limit at 4 a.m. through a neighborhood which had been an area of recent violent criminal activity; motorist's initial refusal to stop justified officers' conduct, including approaching stopped vehicle with guns drawn.
It was reasonable for officers to make an investigatory stop of a vehicle that was driving through an area of recent violent criminal activity at 4 a.m. and traveling at approximately half of the allowable speed limit. A federal appeals court found the officer's conduct, which included approaching his stopped vehicle with guns drawn, ordering the motorist out of the vehicle, handcuffing him, patting him down for weapons, and placing him in a police vehicle for questioning were all justified by the circumstances of the stop, including the fact that the motorist initially refused to stop when officers signaled for him to do so.
The motorist was briefly questioned and then released after receiving a ticket for disobeying a police officer's signal. Watkins v. City of Southfield, No. 98-2336, 221 F.3d 883 (6th Cir. 2000).
Officer was entitled to qualified immunity for making checkpoint stop of hunter's vehicle to conduct a deer tag and weapon safety check; appeals court expresses no opinion on whether checkpoint was actually unreasonable, but holds that the law on the subject in November of 1997 was not "clearly established."
During hunting season, a hunter's vehicle was stopped at a vehicle checkpoint conducted by a state Department of Environmental Conservation officer for the purpose of making a deer tag and weapon safety check. The checkpoint was set up on a dirt road providing access to a State-owned hunting ground, and all vehicles leaving the hunting ground were stopped. The motorist refused to consent to any search when he was stopped. After the officer's partner, a deputy sheriff, shone his flashlight into the motorist's vehicle and determined that he had no deer, he told the motorist he could go. The hunter sued conservation officer, claiming that the stop violated his Fourth Amendment rights.
A federal appeals court rejected this claim, granting qualified immunity to the defendant officer. It held that it had not been clearly established in November 1997, the date of the incident, whether such a checkpoint was unreasonable.
Having reached this result, the appeals court declined to express a view on the issue of whether the checkpoint was in fact unreasonable. The court did note, however, that "hunters, having chosen to participate in a highly regulated activity, have a lesser expectation of freedom from such intrusions than citizens not engaged in regulated activity." Mollica v. Volker, No. 99-9287, 229 F.3d 366 (2nd Cir. 2000).
Text: <www.tourolaw.edu/2ndCircuit>. [Cross-reference: Defenses: Qualified Immunity].
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Berg v. County of Allegheny,
No. 98-3557, 219 F.3d 261 (3rd Cir. 2000).[69-70]
Betancourt v. Giuliani, No. 97 Civ 6748 (JSM), 2000 U.S. Dist. LEXIS 18516 (S.D.N.Y.).[72-73]
Brown v. Bryan County, OK., No. 98-40877, 219 F.3d 450 (5th Cir. 2000).[67-68]
Brown v. Gray, No. 99-1134, 227 F.3d 1278 (10th Cir. 2000).[73-74]
Culberson v. Doan, No. C-1-965, U.S. Dist. Ct. (S.D. Ohio),
reported in The National Law Journal p. A14 (March 19, 2001).[74-75]
Feist v. Simonson, No. 99-1687, 222 F.3d 455 (8th Cir. 2000).
Holloway v. Brush, No. 96-3732, 220 F.3d 767 (6th Cir. 2000).
Krider v. Marshall, 118 F. Supp. 2d 704 (S.D.W.Va. 2000).
Mcafee v. Deale, #99-2361, 2000 U.S. App. LEXIS 21411 (4th Cir.).
Mollica v. Volker, No. 99-9287, 229 F.3d 366 (2nd Cir. 2000).[78-79]
Naccarato v. Scarselli, # 98-CV-1115, 124 F. Supp. 2d 36 (N.D.N.Y. 2000).[71-72]
Parker v. Grand Hyatt Hotel, No. CIV.A.98-2453 (RMU), 124 F. Supp. 2d 79 (D.D.C. 2000).
Piotrowski v. City of Houston, No. 98-21032, 237 F.3d 567 (5th Cir. 2001),
rehearing & rehearing en banc denied, 2001 U.S. App. LEXIS 5076).[76-77]
Ribbey v. Cox, No. 99-4022, 222 F.3d 1040 (8th Cir. 2000).[70-71]
Rossi v. City of Amsterdam, 712 N.Y.S.2d 79 (A.D. 2000).[77-78]
Smith v. City of Chicago, No. 99-2965, 242 F.3d 737 (7th Cir. 2001).[75-76]
Watkins v. City of Southfield, No. 98-2336, 221 F.3d 883 (6th Cir. 2000).
Woods v. City of Chicago, No. 99-4069, 234 F.3d 979 (7th Cir. 2000).[68-69]
Page numbers in [brackets] refer to the print edition.
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