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(Published as VOLUME 2001 NUMBER 346)
Defenses: Judicial Immunity
Defenses: Release Agreements
Other Misconduct: Foreign Arrestees
Other Misconduct: Dead Bodies
Police Plaintiff: Premises Liability
Search and Seizure: Home
Search and Seizure: Media Presence
Index of Cases Cited
Los Angeles arrestee could pursue federal civil rights claims against present and former city council members and current and former city attorneys, based on their role in allegedly deciding in "bad faith" to indemnify police officers assessed punitive damages by juries in past civil rights lawsuits.
A man arrested by the Los Angeles police department sued 19 current and former members of the Los Angeles City Council, the city attorney, and 17 current or former members of his staff, as well as numerous other defendants for alleged violations of his civil rights. The claims against the legislators and city attorneys individually were based on an argument that they could be held liable under 42 U.S.C. Sec. 1983 based on their role in indemnifying police officers assessed punitive damages by juries in civil rights cases.
"In other words," the trial judge summarized, "plaintiff contends that historical decisions to indemnify police officers--not even the officers involved in the cases before the Court--in prior civil rights lawsuits have caused the constitutional violations that plaintiff alleges in his complaint." The trial court had rejected "this extraordinary contention" previously, but found that a recent decision of the U.S. Court of Appeals for the Ninth Circuit, Navarro v. Block, No. 99-55623, 250 F.3d 729 (9th Cir. 2001), full text: <www.ce9.uscourts.gov/web/newopinions.nsf/>, reported in Liability Reporter No. 343, p. 101 (July 2001), compelled him to amend prior order.
In Navarro, the court ruled that city legislators were not entitled to qualified immunity if they act in bad faith in indemnifying police officers against awards of punitive damages in federal civil rights lawsuits for misconduct. Navarro, the trial court held, "plainly permits plaintiffs to assert section 1983 claims, such as those advanced by plaintiff, against the Los Angeles City Council based on the council members' prior decisions to indemnify police officers against punitive damage awards," and a "fair reading of Navarro also suggests plaintiff may go forward with his claims against the City Attorney Defendants at this time." Blumberg v. Gates, 144 F. Supp. 2d 1221 (C.D. Cal. 2001). [Cross-references: Defenses: Indemnification; Defenses: Qualified Immunity].
DEFENSES: JUDICIAL IMMUNITY
Alabama magistrate's action of mistakenly faxing warrant recall order to police upside down, so that only a blank page was received, was an administrative act not requiring the exercise of discretion, so that she and the city which employed her were not entitled to judicial immunity from false arrest/imprisonment lawsuit arising from subsequent arrest under withdrawn warrant.
Alabama police arrested a man for public intoxication and he was later found guilty of these charges. When he failed to pay a court-ordered fine or show cause for failing to do so, a warrant for his arrest was issued by a magistrate. He subsequently paid the balance of his fine as well as an additional "contempt charge," and a magistrate entered a "warrant-recall order." The magistrate attempted to fax this order to the city police department, but mistakenly placed the order upside down in the machine, so that she only transmitted a blank page instead. Officers subsequently arrested the man on the original warrant, and he remained in custody for 12 hours before his release. He sued the city for false arrest and false imprisonment under Alabama state law.
Upholding the denial of the defendant city's motion for summary judgment, the Supreme Court of Alabama ruled that the magistrate, an agent of the city, was carrying out an "administrative duty" that did not involve the exercise of judgment when she attempted to fax the warrant recall order to the police department. Accordingly, she was not protected by judicial immunity. It further held that the city could be held liable for false imprisonment on the basis of neglect, and that the state legislature had not limited recovery to acts of intentional misconduct.
The plaintiff was therefore "entitled to proceed against the municipality on his claim of negligence that he says led to the deprivation of his liberty, and the magistrate does not have judicial immunity for her acts that did not involve the exercise of judgment in the discharge of her administrative duties." Bayou La Batre, City of, v. Robinson, No. 1990411, 785 So. 2d 1128 (Ala. 2000).
Text: <www.findlaw.com/11stategov/al/alca.html>. [Cross-reference: False Arrest/Imprisonment: Warrant].
DEFENSES: RELEASE AGREEMENTS
Release agreement required in every case where a criminal defendant sought placement in first-offenders program involving dismissal of charges was "unenforceable as a matter of law" even if voluntary when no effort was made to distinguish between frivolous and meritorious civil rights claims being waived.
A store keeper arrested on misdemeanor charges of obstructing official business requested placement in a court program for first-time offenders. Court practice required him to sign a release promising not to sue the city or police department for any claims arising out of his arrest, and he later did so, although this condition was allegedly not mentioned at his court hearing. He signed it at a meeting with a probation officer, at which time his lawyer was not present.
The store keeper later sought to sue the city and the arresting officer for violation of civil rights, false arrest, assault, battery, defamation and malicious prosecution. The defendants sought dismissal of the lawsuit on the basis of the release.
Under Town of Newton v. Rumery, 480 U.S. 386 (1987) an agreement by a criminal defendant to waive his right to sue for federal civil rights violations in return for the dismissal of charges is enforceable if: 1) it was voluntary; 2) there was no evidence of prosecutorial misconduct; and 3) enforcement of the agreement "would not adversely affect the relevant public interests."
In this case, the court did find that there were factual issues about the release's voluntariness. But ultimately, it ruled that whether or not a jury would ultimately find that the plaintiff had signed the release-dismissal agreement voluntarily, it was "unenforceable as a matter of law." The "relevant public interests do not support enforcement," the court found, because the requirement of the release "made no attempt to distinguish between frivolous and meritorious" claims. The court expressed its belief that Rumery requires a "case-specific showing that the released civil rights claims appeared to be marginal or frivolous at the time the agreement was made and that the prosecutor was in fact motivated by this reason."
In this instance, because the defendants conceded that they apply the requirement of a release-dismissal agreement in every case where admission to the first offender's program was sought, "they cannot possibly show that they required a release because they determined that the Sec. 1983 suit lacked merit (or that other public policies supported a release-dismissal agreement)." Kinney v. City of Cleveland, 144 F. Supp. 2d 908 (N.D. Ohio 2001).
California jury awards $400,000 to boy for unprovoked attack at age three by police dog running loose.
A California jury awarded $400,000 to a boy who was attacked at the age of three by a police dog allegedly running loose in front of the apartment building in which he lived. The lawsuit claimed that his family saw a canine unit officer looking for the dog, but that the dog attacked the child, biting his midsection, before the officer found him. The lawsuit further claimed that the child suffered brain damage, later required placement in special education, and could develop scoliosis, all as a result of the dog bites. Quiroz v. City of Richmond, Nos. C98-00553 c/w C98-02454 (Contra Costa Co., Calif. Super. Ct.), June 29, 2001, reported in The National Law Journal, p. B3 (Sept. 3, 2001).
FALSE ARREST/IMPRISONMENT: NO WARRANT
N.Y.C. police officers had probable cause to arrest store manager for violating city ordinance prohibiting the sale of toy guns that looked like real guns; fact that a portion of the toys were colored red was insufficient to change result when ordinance was ambiguous about how much of toy's surface had to be such a color in order to fall outside prohibition.
A federal trial court ruled that New York City police officers had probable cause to arrest a store manager for violating a city ordinance prohibiting the sale of toy guns that looked like real guns, granting summary judgment to the defendant officers in the arrestee's federal civil rights lawsuit. The plaintiff had argued that the ordinance in question did not cover the sale of the toy guns he displayed, because some of them had red cylinders and red plastic plugs in the barrels.
The ordinance excluded toy guns "colored in colors other than black, blue, silver, or aluminum." But the court noted that only part of the toys in question were colored red, and that red the colored portions of the guns could be removed or covered by the hand holding them in a shooting position, so that, as displayed to a person threatened, they would appear to be real black pistols. The court found that the ordinance was ambiguous because it did not specify how much or what parts of the gun had to be brightly colored to be considered a toy. (A recent revision of the ordinance clarifies this to require that the "entire surface" be colored to reveal that it is a toy, in order to not be a prohibited sale). Given this ambiguity at the time of the arrest, the officers could reasonably believe that they had probable cause to arrest the plaintiff. Khan v. Ryan, No. 99-CV-2142, 145 F. Supp. 2d 280 (E.D.N.Y. 2001).
FIREARMS RELATED: ACCIDENTAL USE
Officer was entitled to "pursuit immunity" under New Jersey statute from liability for accidental discharge of his weapon, which dislodged from his holster, while he was in foot pursuit of a drug suspect; neither officer or department was liable to bystander injured by shot.
A bystander in New Jersey was shot in the hip when an officer's weapon discharged while he was in foot pursuit of a drug suspect. The weapon dislodged from the officer's holster during the pursuit, fell to the ground, and fired. The injured man filed a personal injury lawsuit in state court against the officer and the department.
The Supreme Court of New Jersey upheld judgment for the defendants on the basis of "pursuit immunity" provisions of the state's Tort Claims Act. Under N.J.S.A. 59:5-2b(2), "neither a public entity nor a public employee is liable for [...] any injury caused by [an escaping or escaped person."
The court found that the conduct the plaintiff alleged on the part of the officer was, at most, negligence in leaving the safety switch on his weapon in the fire position following an earlier, unrelated encounter. This, however, was not enough to remove the pursuit immunity provided by the statute--instead, willful misconduct was necessary, which was more than simple negligence, if possibly less than intentional infliction of harm.
In this case, the officer's conduct in commencing his foot pursuit of the drug suspect without first checking his gun to ensure that the safety switch was not in a fire position was objectively reasonable. The officer therefore had good faith immunity under the Tort Claims Act against liability for the gunshot wound. Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693 (N.J. 2001).
FIREARMS RELATED: INTENTIONAL USE
Deputy's use of deadly force against occupants of fleeing auto theft suspects was illegal seizure of passenger struck and paralyzed, so county was not entitled to summary judgment in civil rights lawsuit, but appeals court panel rules, by 2-1, that shooting deputy was entitled to qualified immunity and could have reasonably believed that fleeing suspects posed a threat of serious harm to other motorists.
A county sheriff's department received an early morning report that a red pickup truck with a silver tool box in its bed had been stolen from a service station along a highway, and that the suspect, a white male wearing a white t-shirt, was believed to be heading north on the highway. In response, two deputies headed to the northbound lanes of the highway in separate vehicles, and ultimately observed a red pickup.
While tracking the truck, the deputies made efforts to determine whether the vehicle was indeed the stolen truck. When the truck started to speed away, after one deputy had clearly indicated to the occupants that he wanted them to stop, the deputies gave chase, and one deputy ultimately fired three shots into the truck, which struck a passenger in the truck, leaving him paralyzed.
A federal appeals court overturned summary judgment for the defendant county, finding that a reasonable jury could find the shooting to be in violation of the passenger's constitutional rights. The alleged crime was auto theft, and there was no claim that the officers believed the occupants to be armed, or that any shots had been fired at the officers. The shooting of the passenger could be found to be an illegal seizure in violation of the Fourth Amendment.
At the same time, a 2-1 majority of the three judge appeals panel ruled that the defendant deputy was entitled to qualified immunity because a reasonable officer could have believed that the suspects in the truck, fleeing down a major highway at speeds in excess of eighty miles per hour, and apparently not about to stop, posed a threat of serious harm to the drivers and occupants of other vehicles. While the deputy may have been mistaken in the belief that he had grounds to use deadly force, "we cannot say that a reasonable officer" in his position "could not have believed" that such grounds existed, the majority wrote.
The dissenting judge disagreed, stating "(I)t was known to any reasonable Coweta County, Georgia sheriff's deputy in 1998 that it was contrary to the constitution of the United States to shoot three times in broad daylight into a vehicle carrying two human beings, who were probably thieves in flight but who certainly had lives more valuable than the property the policeman was so dangerously and so stupidly and so unconstitutionally seeking to protect." Vaughan v. Cox, No. 00-14380, 2001 U.S. App. LEXIS 19417 (11th Cir.).
Text: <www.law.emory.edu/11circuit/index.html>. [Cross-references: Defenses: Qualified (Good- Faith) Immunity].
Officers reasonably used deadly force in response to suspect who had told them he had a gun, attempted to evade arrest, and emerged from his house displaying a staple gun under a towel which they reasonably could have believed was a firearm.
A bail bondsman went to a man's residence in Colorado, seeking to place the man into custody for a bail bond violation. The man put his right hand behind his back and said that he had a gun, so the bail bondsman retreated and called police. Numerous officers arrived on the scene, and the suspect refused to leave the house, instead staying indoors and beginning to use cocaine and drink rum. In a phone conversation with an officer who was seeking to have him leave the house peacefully, he told the officer that he "needed time," and that he had a gun.
The suspect finally emerged from the house with his left hand in a cup and his right hand wrapped in a towel concealing a staple gun, which he intended as a representation of a weapon. While officers ordered him to stop, and first used non-lethal beanbag rounds and an attack dog to try to stop him, he kept going and dropped to the ground, exposing the staple gun. One of the officers, believing the staple gun to be a firearm, and believing that he and the other officers were in the line of fire, fired a three-round burst from his automatic weapon, hitting the suspect in the stomach. A second officer fired two shots at the center of the suspect's body.
The suspect, who survived and needed hospitalization, sued the officers for excessive use of force. A federal appeals court rejected these claims, finding that the officers had not used excessive force under the circumstances, and were entitled to qualified immunity. Under the situation as the officers saw it, they could reasonably believe that he had a weapon and was posing a threat to their lives and safety.
The plaintiff himself had "communicated he had a gun, emerged from the house covering what could reasonably be interpreted as a weapon, and began walking away from the house into the street. The officers' response in attempting to stop" him "was reasonable under the circumstances." Medina v. Cram, #00-1153, 252 F.3d 1124 (10th Cir. 2001).
$5.05 million settlement in lawsuit by estate of motorist struck by car being pursued by sheriff's deputies.
A motorist stopped at a red light in Florida was killed in a collision with a speeding rental car being pursued by sheriff's deputies which was traveling in the opposite direction. The pursued vehicle ignored the red light before striking the decedent's car. His estate sued both the sheriff, claiming that the deputies continued the pursuit in violation of applicable departmental policies, and the rental car company, claiming it was responsible for the accident under a state statute concerning "dangerous instrumentalities."
The plaintiff was awarded summary judgment by the trial court on liability, and the parties then reached a $5.05 million settlement, with the rental car company paying $3.95 million and the sheriff the remainder of the amount, $1.1 million. Carboni v. Enterprise Leasing Co., Fla., Palm Beach County 15th Jud. Cir. Ct., No. 98-006647, Dec. 1, 2000, reported in 44 ATLA Law Rptr. No. 5, p. 167 (June 2001).
Federal appeals court rules that plaintiff did not have a constitutional claim for malicious prosecution separate from his Fourth Amendment false arrest, false imprisonment and unreasonable seizure claims; elements of a constitutional claim for malicious prosecution "cannot depend" on state law.
An Ohio man was arrested for felony assault, disorderly conduct and resisting arrest following an altercation with two police officers. After a jury acquitted him of these charges, he filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 against the village, its police department, and one of the officers. The complaint included allegations of unreasonable seizure, arrest without probable cause, the use of excessive force, false imprisonment, and malicious prosecution.
The defendant officer moved for summary judgment on the basis of qualified immunity and the trial court denied his motion. He then appealed, arguing that he was entitled to qualified immunity from the claim of malicious prosecution. A federal appeals court denied the request for qualified immunity on this claim, on the specific reason that the plaintiff "does not have a cognizable constitutional claim for malicious prosecution, distinct from his Fourth Amendment claims still pending" in the trial court.
The appeals court noted that the trial court, in deciding the issue of qualified immunity on the malicious prosecution claim, had "looked to the elements of a claim for malicious prosecution under Ohio law." This analysis, the court stated, "was not proper. We hold that the elements of this constitutional claim cannot depend on state law."
It reasoned that the U.S. Supreme Court, in Albright v. Oliver, 510 U.S. 266 (1994), in rejecting a "due process" right under the Fourteenth Amendment to be free from malicious prosecution, had "muddied the waters rather than clarified them," and that since Albright, federal courts have "struggled with malicious prosecution cases and have reached different conclusions. It summarized that the First, Third, Fourth, Tenth and Eleventh Circuits "have analyzed causes of action for malicious prosecution under Sec. 1983 based upon Fourth Amendment principles," while the Fifth, Seventh, and Ninth Circuits "require that a Sec. 1983 cause of action be based on state-law elements of malicious prosecution." It also stated that "squarely in the middle is the Second Circuit, which has reached contradictory holdings on what constitutes the cause of action."
In this case, a 2-1 majority of a three judge panel of the U.S. Court of Appeals for the Sixth Circuit held that Albright means that there is no constitutional claim for malicious prosecution, when there are Fourth Amendment claims pending in the case, such as for arrest without probable cause and unreasonable seizure, etc. It also commented that Albright may leave open the question of whether there can be a substantive due process claim for malicious prosecution in cases where a plaintiff's Fourth Amendment rights are not implicated.
A dissenting judge in the panel argued that the majority had effectively interpreted Albright as "totaling eliminating the Sec. 1983 cause of action for malicious prosecution in our circuit." Frantz v. Village of Bradford, No. 99-4186, 245 F.3d 869 (6th Cir. 2001).
EDITOR'S NOTE: The cases from other circuits cited by the majority panel decision above are:
"Fourth Amendment analysis": Britton v. Maloney, #98-2092, 196 F.3d 24 (1st Cir. 1999); Gallo v. City of Philadelphia, #98-1071, 161 F.3d 217 (3d Cir. 1998); Brooks v. City of Winston-Salem, #94-7063, 85 F.3d 178 (4th Cir. 1996); Taylor v. Meacham, #95-4008, 82 F.3d 1556 (10th Cir. 1996); Whiting v. Traylor, #95-4268, 85 F.3d 581 (11th Cir. 1996).
"State law elements analysis": Kerr v. Lyford, #97-41553, 171 F.3d 330 (5th Cir. 1999); Reed v. City of Chicago, #95-1606, 77 F.3d 1049 (7th Cir. 1996); Haupt v. Dillard, #92-15966, 17 F.3d 285 (9th Cir. 1994); and (illustrating the two different approaches the majority said the Second Circuit took): Cook v. Sheldon, #94-7282, 41 F.3d 73 (2d Cir. 1994) (state law elements analysis) and Singer v. Fulton County Sheriff, #94-9093, 63 F.3d 110 (2d Cir. 1995) (Fourth Amendment analysis).
OTHER MISCONDUCT: FOREIGN ARRESTEES
City could be sued for violation of civil rights for failure to allow a German visitor arrested to contact the German consulate as required by treaty.
A federal trial court in New York has ruled that a German national arrested for alleged drunk driving could sue the city for violation of his right under the Vienna Convention on Consular Relations to contact the German consulate after his arrest. The U.S. is a party to that treaty, which does not, in its own text, address the issue of a remedy for damages. The court ruled that the arrestee could sue for violation of civil rights under 42 U.S.C. Sec. 1983. This was apparently the first court decision allowing such a lawsuit.
The plaintiff arrestee was stopped at a sobriety checkpoint and placed under custody after he failed a sobriety test. One officer at the scene claimed that the arrestee became abusive, saying "Heil Hitler." At the police station, the arrestee's Breathalyzer test did not show intoxication. When arrested, he had a "gay pride" rainbow flag hanging from his rear- view mirror, and he claimed he was subjected to anti-gay remarks by officers, and then transferred to a hospital as an "emotionally disturbed person." A nurse at the hospital found that he was not disturbed, and helped him to contact the German consulate, a request the officers had allegedly denied. Standt v. City of New York, No. 99-Civ-110008, 2001 U.S. Dist. LEXIS 9954 (S.D.N.Y.).
OTHER MISCONDUCT: DEAD BODIES
California jury awards $75,000 for emotional distress to family of deceased woman whose body was autopsied, without authorization, during "Scared Stiff" program for youthful drunk drivers.
The alleged unauthorized use of a woman's body by a county coroner's office in an autopsy performed during its "Youthful Drunk Driver Visitation Program," also called "Scared Stiff," prompted a $75,000 California jury verdict in a lawsuit by the decedent's mother, daughter, and brothers. The decedent had died of an accidental drug overdose and was used in the program because there were no DUI-accident victim bodies available at the time. The lawsuit sought damages for negligent infliction of emotional distress. Garza v. County of Fresno, No. 644182-8, (Fresno Co., Calif., Super. Ct.)., reported in The National Law Journal, p. B3 (August 13, 2001). [Cross References: Emotional Distress].
Motorist's claim that city and its officers seized his car in order to side with auto shop that claimed he owed money for repairs stated a claim for violation of his Fourth Amendment and Fourteenth Amendment due process rights.
A motorist took his car to a mechanic to check a leak, but told the shop not to do the work when informed that costly repairs were required. When he arrived to retrieve his car, however, he was told that the work was done anyway, and that the bill was more than $950. When he refused to pay, he was allowed to drive home after agreeing to resolve the dispute in court. Five days later, however, the shop allegedly had someone "steal" the car from him. (Illinois law, as an appeals court later noted, does not allow auto mechanics to "repossess" cars, as secured lenders may do under the Uniform Commercial Code).
With the vehicle in its possession, the shop phoned the motorist and demanded $1,937 for repairs and "storage fees" as the price of its return. The motorist called police, who allegedly took the mechanic's side, refusing to prosecute any of the shop's employees, refusing to accept the motorist's written complaint, and forbidding the shop from returning the vehicle. When the auto shop began to doubt its authority to retain the car, and was about to hand it back to the motorist, the police department allegedly took custody of the car itself, while leaving it with the shop "for safekeeping," and prohibiting the motorist from even removing personal belongings from the car.
The motorist filed a civil rights lawsuit against the city and its officers. A federal appeals court, reversing the dismissal of the suit by the trial court, found that the alleged facts stated a claim for violation of the Fourth Amendment and Fourteenth Amendment due process.
The court found that it did not matter that the police seized the car from the auto shop rather than the owner. "This would be plain enough if the police had seized the swag from a bank robber; they could not defeat a claim by the bank for the return of its money by observing that the thief laid hands on the cash first." The court also found that the Plaintiff had adequately alleged that the officers acted pursuant to a municipal policy of backing up merchants' claims without regard to the facts.
The city and its officers could not seize the plaintiff's property without probable cause to do so. "The Constitution's requirements are as applicable to the police when they choose sides in a dispute among citizens as when they seize evidence for use in criminal prosecutions." Johnson v. City of Evanston, Illinois, #00-4207, 250 F.3d 560 (7th Cir. 2001).
Tennessee Supreme Court rules that state statute authorizing claims against state for negligent care of personal property does not allow claims for personal injuries caused by such negligence, but merely claims for loss or damage to the property; state was not liable for injuries to county deputy hit by a motorist while assisting passenger with nonoperating car at scene of state trooper's arrest of speeding motorist.
After a Tennessee highway patrolman arrested a motorist for speeding, he released the arrestee's vehicle into the custody of a passenger in the car. The vehicle slipped out of a gear and began to roll backwards down an incline towards the patrolman's vehicle, but a sheriff's deputy, also on the scene, leaped into the car and applied the brake, preventing a collision. At the request of the passenger, a number of deputies present at the scene, along with the passenger, pushed the car, which now would not start, to the shoulder of the road at the bottom of a downward slope. One of the deputies then started walking back across the road, when he was struck by a pick-up truck traveling on the road.
The injured deputy suffered permanent and irreversible brain damage, as well as a severe fracture to his spine and significant kidney injuries. The trooper summoned an ambulance for him. Less than six minutes had elapsed from the time of the release of the vehicle to the accident. The injured deputy filed a claim against the state, asserting that his injuries were proximately caused by the trooper's negligence in not calling a tow-truck for the disabled car and in failing to properly control traffic around the arrest scene.
The Supreme Court of Tennessee has held that state was not liable, overturning an award of 10% liability against the state. It found that the trooper had no legal duty, under either common law or state statutes to exercise reasonable care in the care, custody, and control of county deputies at the scene of the trooper's arrest of the speeding driver, and that the trooper did not voluntarily assume any such duty. The court noted that the trooper had not summoned the deputies to the scene or request their assistance, and did not order or request that they perform any specific duties.
Further, once the trooper released the vehicle to the passenger's custody, he had no legal duty concerning its control. When county deputies sought to assist the passenger, therefore, they alone assumed a duty of reasonable care, precluding the deputy from bringing a personal injury claim against the state under a statute authorizing claims for the negligent care, custody or control of personal property, T.C.A. Sec. 9-8-307(a)(1)(F). The court further held that this section only authorizes claims for the damage or loss of particular items of personal property in the control of state employees, and does not permit claims for personal injury caused by the alleged negligent care, custody or control of personal property. Stewart v. State of Tennessee, 33 S.W.2d 785 (Tenn. 2000). [Cross-references: Police Plaintiff; Vehicle Related; Public Protection: Motorists].
POLICE PLAINTIFF: PREMISES LIABILITY
City drainage ditch located on homeowner's property, obscured by bushes, was not a "mantrap or pitfall"; no liability to officer who fell into ditch after coming onto the property while chasing a suspect.
An off-duty police officer, while working a security job, heard a police radio transmission that suspects had just abandoned a stolen car at a nearby intersection. He abandoned his off-duty job and went to help retrieve the stolen auto. While en route, he saw a car run a red light and began following that car. The car drove into a homeowner's front yard, and the driver jumped out and began to run onto a neighboring yard. The officer gave chase and ran through some bushes, falling into a seven-foot city drainage ditch, injuring his left wrist and his pelvis.
The officer sued the property owner, claiming that the drainage ditch constituted a "mantrap or pitfall," violating their duty to him as a licensee (his status under Georgia state law) not to wantonly and recklessly expose him to hidden perils. Granting summary judgment for the defendant landowner, an intermediate Georgia appeals court ruled that the officer had not showed that the drainage ditch was a mantrap or pitfall. "Examples of mantraps or pitfalls include spring guns, traps deliberately set to do injury, or other perils which have been hidden by an owner intended to inflict injury. If a peril is not so close to a traveled path to pose a danger to those accidentally stepping off that path, it is not a mantrap."
In this case, the landowner did not construct, control or maintain the drainage ditch, but it was located on their property under an easement granted to the city by a prior owner. While the foliage surrounding it was planted by the landowner, "presumably to obscure the view of the drainage ditch, there is no evidence that it was planted with any intent to injure or with any conscious indifference as to infer an intent to injure." Further, it was 35 feet from the street and 25 feet from the edge of the public sidewalk. Aldredge v. Symbas, No. A01A0025, 547 S.E.2d 295 (Ga. App. 2001).
SEARCH & SEIZURE: HOME/BUSINESS
Officers were not entitled to qualified immunity for arresting homeowner for obstructing justice for objecting verbally to their proposed search of the curtilage of his home, where they did not have probable cause or a warrant to do so; his holding of a beer bottle on his own property also did not support an arrest for "public" intoxication.
Officers investigating a complaint of "loud" music at a party at a private residence pulled into its driveway in front of the house, where they observed the homeowner holding a bottle of beer. He told the officers that any "noise" problem had ended, and they did not hear any music, but heard the sounds of people talking at the residence loudly enough to be heard in the road. They arrested the homeowner for public drunkenness and also charged him with impeding an officer, allegedly based on his objection to their presence on his property and insistence that they should have a search warrant. They did not conduct any further investigation on the premises.
The homeowner sued the officers, alleging false arrest, assault, false imprisonment and malicious prosecution. The officers' motion for summary judgment on the basis of qualified immunity was denied by the trial court, a decision upheld by a federal appeals court.
The court stated that when the officers responding to the noise complaint spoke to the homeowner and were asked to leave, after the music complained of had stopped, they no longer had a legitimate reason unconnected with a search of the premises to be on the "curtilage" of the house, and would have exceeded the legitimate reason for their initial presence if they had proceeded, as they stated they wanted to, to conduct a general search of the curtilage for sound equipment, underage drinkers and persons who might cause a noise violation to recur.
The court further noted that the homeowner's right to be free from a search of the curtilage of his home "premised only upon reasonable suspicion, without probable cause plus either a warrant or exigent circumstances" was clearly established in August of 1997, the time of the incident. Accordingly, the plaintiff did not act in obstruction of justice in verbally objecting to the officers' proposed "plainly unlawful search," the court held.
Additionally, even if the officers could have perceived the homeowner to be intoxicated (which he disputed), they could not have reasonably perceived him to be "in public" as required by the public intoxication statute, when he was standing in his private driveway, connected to a marked private road. Indeed, he owned the portion of the private road in front of his property and his seven and one-half acre residence/farm was surrounded by a wooden fence and a privacy hedge blocking the visibility of his private road, and he could not be seen by the public from where he was standing.
While the officers' initial entry to investigate the noise complaint was not unlawful, the "wrongfulness" of their contemplated search of the curtilage for evidence of alcohol and noise violations was relevant to the homeowner's false arrest claims. "The police do not have a right to arrest citizens for refusing to consent to an illegal search," the appeals court summarized. Rogers v. Pendleton, No. 00-2130, 249 F.3d 279 (4th Cir. 2001).
Text: <www.law.emory.edu/4circuit>. [Cross-reference: False Arrest/Imprisonment: No Warrant].
SEARCH & SEIZURE: MEDIA PRESENCE
Officer was entitled to qualified immunity for subjecting arrestee to "perp walk" displaying him to the media in 1997, as the right not to be displayed in this manner was not then clearly established.
A man arrested in New York City in 1997 sued the arresting officer, the city and a television network, claiming, among other things, that he was forced to submit to a staged "perp walk" in which he was allegedly instructed by the officer to stand on the steps of the police station and pull a jacket over his head while the television network videotaped him for broadcast on the evening news.
The federal trial court noted that a federal appeals court last year ruled that such "perp walks," parading arrestees for the sole purpose of having them photographed, violates the Fourth Amendment. Lauro v. Charles, #99-7239, 219 F.3d 202 (2nd Cir. 2000). Full Text: <www.tourolaw.edu/2ndCircuit>, reported in Liability Reporter No. 337, p. 12 (Jan. 2001). At the same time, it held that it was "obvious" that the defendant officer was entitled to qualified immunity, since the "perp walk" in question took place three years before the appeals court decision, so that the legal principles at issue were not "clearly established." It further noted that the appeals court ruling did not mean that all "perp walks" are unconstitutional, merely those in which there is no "legitimate law enforcement justification" for transporting the suspect at that time, as opposed to a "staged" "perp walk" in which media photographing is the sole purpose of "walking" the arrestee.
The claims against the city, however, were allowed to stand, since the complaint alleged that the city engaged in a custom of such unconstitutional walks. The principles of qualified immunity apply only to individual defendants. Lyde v. New York City, 145 F. Supp. 2d 350 (S.D.N.Y. 2001). [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Aldredge v. Symbas,
No. A01A0025, 547 S.E.2d 295 (Ga. App. 2001).[156-157]
Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693 (N.J. 2001).
Bayou La Batre, City of, v. Robinson, No. 1990411, 785 So. 2d 1128 (Ala. 2000).[147-148]
Blumberg v. Gates, 144 F. Supp. 2d 1221 (C.D. Cal. 2001).
Carboni v. Enterprise Leasing Co., Fla., Palm Beach County 15th Jud. Cir. Ct., No. 98-006647,
Dec. 1, 2000, reported in 44 ATLA Law Rptr. No. 5, p. 167 (June 2001).
Frantz v. Village of Bradford, No. 99-4186, 245 F.3d 869 (6th Cir. 2001).[152-153]
Garza v. County of Fresno, No. 644182-8, (Fresno Co., Calif., Super. Ct.).,
reported in The National Law Journal, p. B3 (August 13, 2001).
Johnson v. City of Evanston, Illinois, #00-4207, 250 F.3d 560 (7th Cir. 2001).
Khan v. Ryan, No. 99-CV-2142, 145 F. Supp. 2d 280 (E.D.N.Y. 2001).[149-150]
Kinney v. City of Cleveland, 144 F. Supp. 2d 908 (N.D. Ohio 2001).[148-149]
Lauro v. Charles, #99-7239, 219 F.3d 202 (2nd Cir. 2000).[158-159]
Lyde v. New York City, 145 F. Supp. 2d 350 (S.D.N.Y. 2001).[158-159]
Medina v. Cram, #00-1153, 252 F.3d 1124 (10th Cir. 2001).[151-152]
Navarro v. Block, No. 99-55623, 250 F.3d 729 (9th Cir. 2001).
Quiroz v. City of Richmond, Nos. C98-00553 c/w C98-02454 (Contra Costa Co., Calif. Super. Ct.),
June 29, 2001, reported in The National Law Journal, p. B3 (Sept. 3, 2001).
Rogers v. Pendleton, No. 00-2130, 249 F.3d 279 (4th Cir. 2001).[157-158]
Standt v. City of New York, No. 99-Civ-110008, 2001 U.S. Dist. LEXIS 9954 (S.D.N.Y.).[154
Stewart v. State of Tennessee, 33 S.W.2d 785 (Tenn. 2000).[155-156]
Vaughan v. Cox, No. 00-14380, 2001 U.S. App. LEXIS 19417 (11th Cir.).[150-151]
Page numbers in [brackets] refer to the print edition.
© Copyright 2001 by AELE, Inc.
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