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U.S. Code § 1983 Update
by: Elliot B. Spector
Connecticut Criminal Law
Foundation, Inc.
November, 2004
IACP Legal Officers Section
Flowers v. Fiore, 359 F.3d 24 (1st Cir.
2004).
Young v. Prince George’s County, 355 F.3d 751
(4th Cir. 2004).
Kopec v. Tate, 361 F.3d 772 (3rd Cir. 2004).
King v. City of Eastpointe, 86 Fed.Appx. 790
(6th Cir. 2003).
Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004).
Bolton v. Taylor, 267 F.3d 5 (1st Cir. 2004).
Brown v. City of McComb Police, 84 Fed.Appx.
404 (5th Cir. 2003).
Wilkins v. City of Oakland, 350 F.3d 949 (9th
Cir. 2003).
Cunningham v. Hamilton, 84 Fed.Appx. 357 (4th
Cir. 2004).
Robinson v. Nolte, 77 Fed.Appx. 413 (9th Cir.
2003).
Cowan v. Breen, 352 F.3d 756 (2nd Cir. 2003).
Hernandez v. Jarman, 340 F.3d 617 (8th Cir.
2003).
Haugen v. Brosseau, 339 F.3d 857 (9th Cir.
2003).
Lucero v. City of Albuquerque, 77 Fed.Appx.
470 (10th Cir. 2003).
McCurdy v. Dodd, 352 F.3d 820 (3rd Cir.
2003).
Gaddis v. Redford Twp., 364 F.3d 763 (6th
Cir. 2004).
Braun v. Baldwin, 346 F.3d 761 (7th Cir.
2003).
Durruthy v. Pastor, 351 F.3d 1080 (11th Cir.
2003).
Ochana v. Flores, 347 F.3d 266 (7th Cir.
2003).
Renda v. King, 347 F.3d 550 (3rd Cir. 2003).
Lawyer v. City of Council Bluffs, 361 F.3d
1099 (8th Cir. 2004).
Anderson v. Cass County, 367 F.3d 741 (8th
Cir. 2004).
Karam v. City of Burbank, 352 F.3d 1188 (9th
Cir. 2003).
Dorman v. Castro, 347 F.3d 409 (2nd Cir.
2003).
McCullah v. Gadert, 344 F.3d 655 (7th Cir.
2003).
Pena-Borrero v. Estremeda, 365 F.3d 7(1st
Cir. 2004).
Lee v. Gregory, 363 F.3d 931 (9th Cir. 2004).
McCann v. Mangialardi, 227 F.3d 782 (7th Cir.
2003).
Chortek v. City of Milwaukee, 256 F.3d 740
(7th Cir. 2004).
Martin v. City of Oceanside, 360 F.3d 1078
(9th Cir. 2004).
Harajli v. Huron Twp., 365 F.3d 501 (6th Cir.
2004).
Ali Shamaeizadeh v. Cunigan, 383 F.3d 535
(6th Cir. 2003).
Hell’s Angels v. McKinley, 360 F.3d 930 (9th
Cir. 2004).
Storck v. City of Coral Springs, 354 F.3d
1307 (11th Cir. 2003).
Hadley v. Williams, 268 F.3d 747 (7th Cir.
2004).
Duarte v. Robards, 86 Fed.Appx. 270 (9th Cir.
2003).
Doe v. Groody, 361 F.3d 232 (3rd Cir. 2004).
Heft v. Moore, 351 F.3d 278 (7th Cir. 2003).
Hughes v. Lott, 350 F.3d 1157 (11th 2003).
Rivas vs. City of Passaic, 365 F.3d 181 (3d Cir.
2004).
Tremblay vs. McClellan, 350 F.3d 195 (1st
Cir. 2003).
Estate of Allen v. City of Rockford, 349 F.3d
1015 (7th Cir. 2003).
Di Benedetto v. Pan Am World Service, 359
F.3d 627 (2d Cir. 2004).
Gatlin v. Green, 362 F.3d 1089 (8th Cir.
2004).
International Action Center v. U.S., 365 F.3d
20 (D.C. Cir. 2004).
Supervisory
Dunn v. City of Elgin, 347 F.3d 641 (7th Cir.
2003).
Graham v. Co. of Washtenaw, 358 F.3d 377 (6th
Cir. 2004).
Isom v. Town of Warren, Rhode Island, 360
F.3d 7 (1st Cir. 2004).
Campbell v. Miller, 373 F.3d 834 (7th Cir.
2004).
Amnesty America v. Town of West Hartford, 361
F.3d 113 (2d Cir. 2004).
Larkin v. St. Louis Housing Auth., 355 F3d
1114 (8th Cir. 2004).
Kelso v. City of Toledo, 77 Fed.Appx. 826
(6th Cir. 2003).
Floren v. Whittington, 217 F.R.D. 389 (S.D.
West Virginia 2003).
Flowers v. Fiore,
359 F.3d 24 (1st Cir. 2004)
Officer Fiore, of the Westerly Rhode Island Police Department, responded to a call from Nunzio Gaccione, who indicated that an individual with whom the officer was familiar, due to some disturbances and possible drug activity, had threatened to send over two black males with a gun to start some trouble at his house. About five minutes before Officer Fiore’s arrival, Gaccione told him he saw two African-American men in a small gray or black vehicle drive by his home. Approximately thirty minutes later, the officer saw the plaintiff driving a gray vehicle heading in the direction of Gaccione’s residence. He and two back up officers conducted a high-risk felony stop.
On review of the grant of summary judgment, the Court had to determine whether this amounted to an investigative stop or was so intrusive as to constitute a de facto arrest. “Where police actions taken during a detention exceed what is necessary to dispel the suspicion that justified the stop, the detention may amount to an arrest and is lawful only if it is supported by probable cause.” The Court concluded in this close case, the officers’ actions did not go beyond an investigatory Terry stop. Even based on the complainant’s sketchy information, the officers were entitled to draw their firearms because they were faced with a report of an armed threat. Upon restraining plaintiff, they immediately holstered their weapons. The use of handcuffs was reasonably necessary to carry out the legitimate purpose of their stop without exposing themselves, the public or the suspect to undue risk of harm. The use of back up officers and placing the suspect in the back of the cruiser did not convert the stop into a custodial situation.
Here, they had information
that a suspect was currently armed and that a crime involving violence may soon
occur. Also, the detention of no more
than fifteen minutes was reasonable as the officers diligently pursued their
investigation to confirm or dispel the suspicions. The Court cited a Sixth Circuit decision, which was almost
identical, Houston v. Does, 174 F.3d 809 (6th Cir. 1999),
where the plaintiffs, suspected of a shooting, were ordered out of their car by
three officers, handcuffed, placed in the back of a police cruiser and
questioned about the shooting prior to being released thirty minutes
later. In evaluating the reasonableness
of the officers’ actions and the reasonable suspicion for the initial stop, the
Court cited U.S. v. Sharpe for the proposition that it should not
indulge in unrealistic second-guessing in cases where law enforcement officers
must make quick decisions in potentially dangerous situations.
Young v. Prince
George’s County, Maryland, 355 F.3d 751 (4th Cir. 2004)
Young, an off-duty FBI agent, and his neighbor were stopped because the vehicle they were towing did not have proper lights. Upon complying with the officer’s orders to sit on the curb and place their hands on their heads, Young voluntarily informed the officer that he was an off-duty law enforcement officer, was armed and had his credentials in his automobile. The officer allegedly handcuffed Young, grabbed him by his neck, placed him in a headlock, spun him around throwing him to the ground and kneed him in the back. He then retrieved a 38-caliber firearm from Young’s front pocket and then struck him in the back of the head with his forearm, telling him to shut up when Young complained about the use of force. After confirming Young’s status, he was released twenty-five minutes after the stop. The district court granted summary judgment on the false arrest and excessive use of force claims.
The central issue was whether the officer’s use of excessive force escalated the investigative stop into an unlawful arrest. The court stated that brief deprivations of a suspect’s liberty do not convert a stop and frisk into an arrest as long as the methods of restraint used are reasonable under the circumstances. It then cited prior precedent allowing officers to block an automobile, draw their weapons and handcuff a suspect without transforming a stop into an arrest. In this case they found that the method of restraint used by the officer did not cross the line between a stop and an arrest. As the officer was alone when he stopped two passengers, one of whom stated he was carrying a firearm, Officer Hines was entitled to protect his safety by taking reasonable measures designed to disarm Young.
Even though the officer could not be held liable for a false arrest, the court did find that there were issues of disputed fact as to whether the use of force was actionable under Section 1983. The officer stopped plaintiff for a minor motor vehicle violation, plaintiff and his companion were fully cooperative and the plaintiff immediately volunteered that he was a law enforcement officer with a weapon. It was not readily apparent to the court why Officer Hines, after handcuffing the detainees, needed to grab Young from behind, place him in a headlock and throw him to the ground. Even more questionable was why, after being down on the ground, the officer used the additional force against someone who posed little, if no threat.
Kopec v. Tate,
361 F.3d 772 (3rd Cir. 2004)
Responding to an anonymous call, Officer Tate found plaintiff and his girlfriend trespassing while frolicking on a frozen lake. He did not intend to arrest them, but did want their names for a report after they complied with his demand to get off the ice. Plaintiff Kopec repeatedly refused and instructed his girlfriend not to give her name. Annoyed, the officer arrested and handcuffed him. Kopec claimed that within ten seconds he began to lose feeling in his right hand and asked Tate to loosen the handcuffs, but Tate did not do so. Kopec then asked if “this is what he does when people don’t give him information.” Over the next ten minutes, (officer claims 4 to 8 minutes), Kopec repeatedly told the officer he was in unbearable pain and begged him to loosen the handcuffs.
He claims to now have permanent nerve damage in his right wrist for which a hand surgeon treated him for over a year. The court found that the officer was not entitled to qualified immunity as a citizen has a right to be free from the use of excessive force in the course of handcuffing and a reasonable officer would have known at the time that excessive force in handcuffing violates the Fourth Amendment. In this case, there was no justification for the officer’s failure to respond to Kopec’s pleas. If the officer had been engaged in apprehending other persons, or dealing with other imperative matters, the result may have been different.
King v. City of
Eastpointe, 86 Fed.Appx. 790 (6th Cir. 2003)
Two African-American brothers, ages 14 and 13, claimed they were illegally stopped and searched by an officer. The officer observed them in the parking lot of a high crime area known for thefts, coming and going from fast food restaurants without food and claiming that they were there to buy food without money. The older brother explained that there was a half-day of school, but was uncooperative and refused to provide his name. The officer separated the two by placing the older brother in the police cruiser after frisking him in a manner that was described by the brother as “overly intrusive.” He claimed the officer grabbed his underwear and pulled it back, grabbed his private part and went into his pocket and grabbed his keys.
The Court found that based on the officer’s observation of the brothers’ actions, there was not reasonable suspicion to believe they were involved in a violation of a law, however, his erroneous but reasonable belief that they were truant was sufficient basis for the stop. There was, however, sufficient basis for the plaintiffs to claim that the officer’s ACTIONS were unreasonable. Given the older brother’s claims, even if a frisk was permitted as a precautionary check for weapons, the grabbing of his private parts was highly intrusive and went beyond the purposes of the investigatory stop.
The plaintiffs also claim that the stop was racially discriminatory. As evidence, they submit a memo from the chief to the city manager that included a statement, “My instructions to the officers were to investigate any black youths riding through our subdivisions.” Even if the instructions were discriminatory, there was no evidence of a causal connection between these instructions and the stop conducted by the officer, as he was a recruit studying at the academy at the time the order was issued and there was no evidence indicating he was aware of the order.
Plaintiffs also claim that they were stopped on two prior occasions, however, there was no evidence that they were treated differently than persons of other races or ethnicities. The officer’s statement that “Two black males had come over and stole bikes,” did not show discriminatory intent because it did not show that they were targeted solely because of their race, but also because of their number (2) and their mode of transportation (bikes). The officer’s reference to one of the boys as “boy” could be interpreted as racially derogatory raising an issue of fact as to whether the officer’s actions were based on race.
Plaintiffs’ claim of supervisory liability failed because the order in question was issued by the chief prior to his becoming chief and, therefore, at the time he was not the policy maker. There was also the absence of the aforementioned causal connection. Finally, the Court noted that a failure to act or to make a serious investigation of similar incidents of discrimination can support a claim for municipal liability. In this case, the plaintiffs’ claim of ratification based on a failure to investigate the prior alleged discriminatory bike stops did not succeed because it was not clear that these bike stops were in fact discriminatory and the city did investigate, but simply determined that the plaintiffs’ rights were not violated.
The Court describes several other incidents in which the plaintiffs’ claim that they were unlawfully stopped. In all but one of these incidents, the Court found that the officers had reasonable suspicion for their stops and there was no evidence of racial discrimination. In the one potentially inappropriate stop, the officer claims that he stopped the vehicle based on his observation that the air freshener extended more than 4 inches from the top of the windshield, that there was a crack in the windshield and that the plaintiffs were not wearing seatbelts. The plaintiffs argued that they had seatbelts on, the air freshener was not in an unlawful location and that the officer could not have seen the cracked windshield prior to the stop. Because of these disputed issues of fact, the officers were not entitled to summary judgment.
Draper v. Reynolds,
369 F.3d 1270 (11th Cir. 2004)
Plaintiff, a truck driver who was stopped because his tag light was not appropriately illuminated, was tasered and arrested for obstruction after he complained that the officer was blinding him with his flashlight, repeatedly stated he felt he was being harassed and did not retrieve his paperwork after being asked five times to do so. The appellate court upheld summary judgment for the defendant officer.
Plaintiff first claimed that the reason for his stop was pretextual and was done solely because plaintiff was an African-American. The only question was whether the officer had reason to believe there was a motor vehicle violation. Plaintiff’s claim that when he picked up his truck at midday the tag light was working was insufficient to create a genuine issue of fact contradicting the officer’s position that the light was not working on the night in question.
The Court also found that the officer had probable cause to make the arrest as it was undisputed that the officer instructed plaintiff to retrieve the documents five times, plaintiff failed to comply and instead accused the officer of harassing him, yelled at him to take him to “fucking jail” and acted in a confrontational and agitated manner, pacing back and forth while repeatedly yelling at the officer. His actions hindered the officer in completing the traffic stop.
Finally, the Court found that the use of the taser without first informing the plaintiff that he was under arrest and commanding him to comply was not objectively unreasonable. Given the plaintiff’s confrontational manner, a verbal arrest accompanied by an attempted physical handcuffing may well have escalated a tense and difficult situation into a serious physical struggle in which either the officer or plaintiff might have been seriously hurt. The one time shocking was reasonably proportionate to the need for force and did not inflict serious injury. In fact, the police video showed plaintiff standing up, handcuffed and coherent shortly after the taser gun stunned and calmed him.
Bolton v. Taylor,
267 F.3d 5 (1st Cir. 2004)
At 10:00 a.m., a prostitute/drug addict was seen getting out of the plaintiff’s car in an area she frequented. Upon seeing the officer, the prostitute gave him a mischievous smile and the plaintiff gave him a quick glance, looked away, appeared to be nervous and left the parking lot at a high rate of speed. After being pulled over, they engaged in an altercation that left the plaintiff with severe injuries. A jury returned a verdict of $175,000.00, which was reduced by remittitur to $17,500.00. The issue on appeal is whether the officer had sufficient facts to justify reasonable suspicion for his stop.
The court, citing Ornelas v. United States, 517 U.S. 690 (1996), determined that when the facts are undisputed, the issue of probable cause or reasonable suspicion is left to the court. The court found no factual basis for the officer’s claim that he had reasonable suspicion to believe that the plaintiff was involved in a drug transaction, driving under the influence or speeding or driving recklessly. This left only the potential crime of soliciting a prostitute. The court found that although the evidence was slim, it was sufficient to amount to reasonable suspicion.
Their one concern was the officer’s
admission that in nine years he never bothered making an arrest for
prostitution and was not interested in doing so in this case as officers in his
town were too busy to get involved in that type of police work. The motivation of the officer was brought
into further question by the prostitute’s statement that officers did not
arrest her clients, but merely stopped them out of humor or malice. Unfortunately for the plaintiff, the
officer’s intent and motivation are irrelevant and the only question is whether
or not he could have had reasonable suspicion for the stop pursuant to Whren.
Brown v. City of
McComb Mississippi Police Department, 84 Fed.Appx. 404 (5th Cir.
2003)
Plaintiff appeals the verdicts in favor of the defendants based on inconsistent responses to special interrogatories by the jury. The jury found that plaintiff was not resisting the officers during the altercation in his driveway. The jury also found that the officers’ use of force, resulting in a serious eye injury, was not excessive. The Court found that these answers were reconcilable in that the officers could have reasonably believed that the plaintiff was attempting to resist them, or to flee as he had done during the eleven mile pursuit, even though plaintiff’s actions may not have constituted resisting in some particular legal sense.
Wilkins v. City of
Oakland, 350 F.3d 949 (9th Cir. 2003)
A plain-clothes narcotics investigator wearing a gray, hooded sweatshirt, apprehended a motor vehicle thief and had him at gunpoint lying on the ground. Two uniformed officers, looking for the same car thief, observed what they believed to be a private individual pointing a gun at the man lying on the street. One of them hollered, “He’s got a gun,” and neither ordered Wilkins to drop his gun. Within seconds, they fired thirteen shots killing the officer.
The issues of disputed fact involve whether or not they knew that this individual was a police officer, since the law is clearly established that the Fourth Amendment bars the use of deadly force against a fellow police officer affecting an arrest. Another officer present said, “He’s a cop,” or, “That’s Will.” There was also evidence that Officer Wilkins pulled off the hood of his sweatshirt, turned towards the officers and said loudly, “It’s me, Willie,” before turning back to the suspect. The court upheld the denial of summary judgment.
Cunningham v.
Hamilton, 84 Fed.Appx. 357 (4th Cir. 2004)
Stating that not every discrepancy creates a triable issue of fact, the Court ruled that the disputed issue of fact as to whether or not plaintiff had his gun pointed at the officer or down by his side at the time of the shooting did not affect the inquiry of whether the officers reasonably and objectively believed that their safety was in danger.
Robinson v. Nolte,
77 Fed.Appx. 413 (9th Cir. 2003)
The appellate court upheld a jury award of $1,000,000.00 in compensatory damages for gunshot injuries inflicted during plaintiff’s arrest. The officer testified that plaintiff was holding a shotgun pointed at the officer at the time that he fired to protect himself. The plaintiff claimed that the shotgun was on his lap while he was lying in bed with his hands up in a surrender position. The forensic and physical evidence supported the plaintiff’s story, as the bullet passed through his hands and there was no blood or other tissue on the gun, which would have been the case had he been shot through the hands while holding the weapon.
Cowan v. Breen,
352 F.3d 756 (2nd Cir. 2003)
As an officer followed a suspicious vehicle, he learned that the vehicle was registered to an individual who had a prior criminal history. He pulled the vehicle over after noticing that the driver was driving erratically. When the male driver, Guerrette, stated that he did not have a license and the female passenger, Cooper, indicated that she was not carrying identification, the officer ordered Guerrette out of the car. Upon patting him down and finding a substance that resembled narcotics, Guerrette ran into the woods. Breen attempted to chase him but lost him. As he walked back to his police cruiser, he observed the Camaro coming towards him with its headlights on. Claiming he waved his arms to signal the vehicle to stop and fearing for his safety, Breen fired twice at the oncoming car. The second shot went through the driver’s side window killing Cooper who was then driving the vehicle.
The Court upheld the denial of summary judgment finding disputed issues of fact. Plaintiff claims that Cooper was driving slowly, that Breen was not in front of the vehicle but substantially off to the side when he fired the second (fatal) shot, that he did not wave his hands and that the vehicle made no sudden turns as it traveled down the road. Plaintiff also claimed that Breen, in his deposition, stated he fired the second shot not because he believed he was in danger, but because he was trained always to fire twice. Further, even if Breen believed he was in grave danger, plaintiff’s expert witness stated that proper police procedure when facing an oncoming vehicle is to get out of the way rather than to shoot, since shooting may disable the car or driver and put the police officer and possibly bystanders in greater danger. Under the plaintiff’s facts, Breen could not have reasonably believed that his conduct was lawful, and therefore he was not entitled to qualified immunity.
The Town was also not entitled to summary judgment, since even if Breen is ultimately determined to be entitled to qualified immunity, if proof that Cooper’s constitutional rights were violated by the Town’s failure to train Breen or because of its “double taps” policy, liability could still attach.
Hernandez v.
Jarman, 340 F.3d 617 (8th Cir. 2003)
At around 3:00 a.m., Wyoming officers began to pursue Six Feathers who was driving erratically. After a highway pursuit of 45 miles at speeds reaching 100 miles per hour, the pursuit entered South Dakota. During the course of the subsequent pursuit, the officers requested road spikes and a highway patrol airplane monitored the pursuit, Six Feathers successfully evaded several roadblocks, including a rolling roadblock. One of the officers’ vehicles became disabled and another spun out after it collided with Six Feathers’ vehicle. The pursuit continued until Six Feathers entered a pasture. He then turned his vehicle around and came back in the opposite direction towards the officers. One grabbed a shotgun and either before, during or after colliding with an officer’s vehicle, fired four shots killing Six Feathers.
The district court found disputed issues of fact as to Six Feathers’ intent and the sequence of the shots. The court stated that the reasonableness of use of deadly force is not judged from the unknowable intentions of the victim, but what a reasonable officer could conclude the intentions were. The officer claimed he fired two shots as Six Feathers’ car drove into the other officer’s vehicle, and another two shots after Six Feathers backed up and started to drive toward him. The plaintiff claims that all four shots were fired after Six Feathers collided with the officer’s vehicle. This and other minor factual discrepancies would not change the result that Six Feathers was continually alluding the officers, took them on a lengthy and dangerous chase and near the end of the pursuit, intentionally drove his car directly at the officers thereby giving officers reason to believe that Six Feathers posed a significant threat of death or serious physical injury.
Haugen v. Brosseau,
339 F.3d 857 (9th Cir. 2003)
Haugen and Tamburello were in the business of selling drugs and occasionally fixing cars. When their partnership dissolved, Haugen allegedly stole his partner’s tools resulting in an investigation by Brosseau. During the investigation, she learned that Haugen was wanted on felony no-bail warrants based on drug and other offenses. Two days later, Brosseau responded to an altercation in which Tamburello was beating Haugen. A pursuit ensued and Brosseau saw Haugen running toward his jeep. Brosseau ordered him, at gunpoint, to get out of the jeep. As he attempted to start the vehicle, Brosseau began to bang on the window with her handgun. Just after she broke through the window, Haugen succeeded in starting the jeep. Before he pulled away, or just after he started to pull away, she shot him in the back.
The Court determined that the use of deadly force was objectively unreasonable and denied Brosseau’s motion for summary judgment. The Court responded to Brosseau’s many justifications including:
Plaintiff’s Prior Crimes: Drug crimes and burglary are serious offenses, but the question is whether the officer has probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm. Brosseau had no such probable cause.
Plaintiff’s Potential Possession of a Weapon: Brosseau stated that she thought plaintiff was running to the vehicle to retrieve a weapon and while in the car he reached down on the floorboard and just as he started the car, dived forward as if to grab something from the floorboard, which she feared might be a weapon. Other witnesses did not see any diving motion and the Court concluded that the movements were not sufficient to justify deadly force.
Impending Escape: The fact that she shot the plaintiff when he was either stopped or had barely moved a number of feet contradicted her claim that his escape in the vehicle included his driving in an erratic manner. The officer provided no specific evidence to support her fear for the safety of fellow officers.
Need to Prevent High Speed Pursuit: The objective facts were insufficient to show that the plaintiff posed a significant threat of death or serious physical injury to the officer or others. He had already remained at large for several months while the warrant was outstanding and there was no reason to believe that his freedom would result in immediate threat to public safety. “A ruling that allowed officers to use deadly force to prevent all vehicular escapes would have the paradoxical result that officers could reasonably shoot to kill even when, under state law, they could not reasonably initiate or continue a chase.” The Court went on to describe a number of Circuit Court cases involving use of deadly force during pursuits in extreme circumstances. The Court also determined that there were insufficient facts to support a ratification theory against the municipality. St. Louis v. Traprotnik, 45 U.S. 112 (1988).
Lucero v. City of
Albuquerque, 77 Fed.Appx. 470 (10th Cir. 2003)
Plaintiff is a mentally retarded, six foot tall, 200+ pound man, housed in a mental health care facility due to significant behavioral problems including violent outbursts and attacks on caregivers. One incident was so bad that police responded, finding staff members complaining that they were tired of restraining Mr. Hildebrandt in fear of injury if they released him. The officer applied handcuffs. Shortly thereafter, CIT officers arrived and replaced the standard cuffs with flex cuffs. They were told the doctor was on the way and that the plaintiff would be transferred to another medical facility within forty-five minutes. After that time, they were told the doctor would be another forty-five minutes. The officers decided to leave and based on the request of staff members, left Mr. Hildebrandt in the flex cuffs.
As it turned out, the doctor did not arrive until even later and it was determined that Mr. Hildebrandt should not be transported until the next morning. Family members called police who, contrary to staff’s request, removed the flex cuffs. The district court found that the officers’ use of cuffs did not amount to unreasonable use of force, however, leaving him unattended and unmonitored and restrained for a prolonged period of time was constitutionally unreasonable. The appellate court rejected this abandonment theory, determining that there was no Fourth Amendment issue in that during the first forty-five minutes the application of the flex cuffs was reasonable. After the officers left and the plaintiff was in the control of trained mental health workers, there was no longer a Fourth Amendment issue. The officers’ discretionary decision to leave was not then found to be shocking to the conscience under the Fourteenth Amendment substantive due process test.
McCurdy v. Dodd,
352 F.3d 820 (3rd Cir. 2003)
Nineteen year old Donta Dawson was sitting alone in a parked car with the engine lights running and the radio, headlights and interior lights on. Officers pulled up in their cruiser and asked why he was parked in the street and whether he needed assistance. Dawson looked at them and then looked away without responding. The officers exited their car and approached, again asking if he needed help, to which he shrugged his shoulders and turned away.
The officers then demanded that he raise his hands, yelling obscenities, with their weapons drawn. When he did not respond, one of the officers reached in removing the ignition key and pointed his weapon directly at Dawson demanding that he show his hands. Dawson remained silent. One of the officers attempted to pull Dawson’s left arm out without success and then retreated, telling his fellow officers that Dawson had a gun. After further demands, Dawson began to move his left arm and the officers fired, fatally shooting Dawson in the head. Dawson was unarmed.
This case raises the typical questions about how to communicate and deal with an apparently emotionally disturbed individual. The Court did not address this issue because the matter settled for $712,500.00. The issue that remained on appeal was the distribution of these funds as Dawson’s mother and his unwed birth father, who did not participate in his upbringing, fought over the distributions. Even after they settled and releases were drawn up, the father continued his constitutional claim against the police.
Fortunately, the Court found that the father did not have due process rights because the Supreme Court’s ruling in Stanley v. Illinois, 405 U.S. 645 (1972), provided him with a liberty interest in the companionship, care, custody and management of his children. This right has never been expressly extended to the companionship of independent adult children. The Seventh and Tenth Circuits have recognized the parental interests in an adult son, however, the Third Circuit joins the district and First Circuit in holding that the due process protections do not extend to parent’s liberty interests in their relationship with his or her adult child. Another non-stated lesson in this case is to ensure that all parties who may potentially be entitled to damages sign complete releases at the time of settlement.
Gaddis v. Redford
Township, 364 F.3d 763 (6th Cir. 2004)
Plaintiff, an emotionally disturbed man, was seen swerving within his lane and apparently leaning to one side. After several failed attempts, the defendant officer finally stopped the plaintiff who stated that his license was suspended and handed the officer an expired license. When ordered to get out of the car, the officer told him to remove his hands from his pockets. The video shows the officer jumping back, visibly alarmed. The officer claims he had a knife in his hand, which cannot be seen in the video.
Three officers were present during the succeeding two or three minute standoff. Plaintiff said to the stopping officers, “Why are you doing this to me, Chris, like you did to me in California?” None of the officers were named Chris or had ever encountered Gaddis in California. Plaintiff then said he wanted to leave, at which point the stopping officer sprayed him with pepper spray. The second officer clambered over the trunk trying to grab the plaintiff. In the videotape, plaintiff appears to be swinging his arms in what the Court interprets to be a stabbing motion toward the officer. Two officers then fired a total of 16 shots at the plaintiff.
The first issue was whether the initial stop of the plaintiff was reasonable. Based on the above-stated facts, the majority determined that the officer had reasonable suspicion that plaintiff was intoxicated.
The next question was whether Bain’s grabbing of Gaddis as he got out of the car was unconstitutionally excessive force. Even minor use of force is constitutionally excessive if totally gratuitous. This force was not gratuitous as the officer intended on preventing the plaintiff from fleeing and was going to conduct a pat down. Such action was reasonable when dealing with a suspect who had previously refused to stop and appeared to be disoriented. The next three use of force issues depend on whether or not there was an issue of fact as to whether or not the plaintiff had a knife. Three of the officers saw plaintiff with a knife, one did not and the videotape did not show a knife. The Court explained, given the position of the non-viewing officer and the poor quality of the videotape, there was no disputed issue of fact regarding the presence of the knife.
The next issue was whether or not the use of pepper spray was reasonable. The Court noted that the main purpose of non-lethal, temporarily incapacitating devices is to give police options short of lethal force to take a person into custody. Since plaintiff was armed with a knife and refusing to submit to the arrest, the use of pepper spray was objectively reasonable. An expert testified that the use of pepper spray as well as the officers’ attempt to grab the plaintiff after the spray amounted to inappropriate tactics in dealing with an emotionally disturbed person.
He claimed that the officers should have acted in a non-confrontational manner that would ensure the plaintiff would not be provoked to violence. The Court agreed that the apparent mental state is one of the facts that officers should take into consideration in using force and cited a prior holding in which inadequate training of the Cincinnati Police Department may have contributed to the shooting death of a mentally ill decedent. In this case, the Court found that the expert’s affidavit was not sufficient to create a material issue of fact as to the reasonableness of these uses of force.
Finally, the officers’ use of deadly force was objectively reasonable in that they saw the plaintiff strike a fellow officer with a knife. The use of a single volley of 16 shots from two officers did not make this use of force unreasonable.
The dissenting opinion noted that the stopping officer’s credibility should have been taken into consideration as he was subsequently convicted of criminal sexual conduct. They also indicated that there were problems with the collection of evidence, which bore on whether or not there were issues of fact in the case including the failure to secure a second knife found on the plaintiff’s front seat, failure to fingerprint the knife found outside of the scene, and the failure to preserve the officer’s allegedly bloody T-shirt. The Court also noted that prior to the use of deadly force, the officer who had allegedly been stabbed was far enough away so that he was no longer in danger.
Braun v. Baldwin,
346 F.3d 761 (7th Cir. 2003)
The plaintiff accompanied William “Whistleblower” Currier at the courthouse to hand out pamphlets and speak out on the advocacy of jury nullification. They had permission to do so by the sheriff. A deputy sheriff, Frank Franckowiak, knowing that someone had called with regard to a disturbance at the courthouse, approached Braun and asked him what his business was. When Braun refused to answer, Franckowiak told him to step aside. When Braun refused, he was arrested for disorderly conduct.
Braun’s free speech claim failed for two reasons. First, there was a lack of evidence that the sheriff even knew that Braun was there to assist Currier in advocating jury nullification. Therefore, his arrest could not have been intended to curtail Braun’s freedom of speech. Second, First Amendment rights are not absolute and “A state may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559 (1965).
The Court stated that it could not think of a more reasonable regulation of time, place and manner of speech than to forbid the advocacy of jury nullification in a courthouse. The Court found that his conduct in refusing to explain his actions to the officer, threatening to sue him, refusing to step aside, continuing his argument in front of a courthouse’s clientele, where it is important to preserve a calm atmosphere and in light of the importance of protecting federal buildings after the Oklahoma City bombing, the officer had adequate probable cause to make an arrest for disorderly conduct. The dissenting opinion did not agree.
In situations like this, even when there is arguable probable cause or even if there is actual probable cause, officers should attempt to resolve such situations without arrest.
Officers should:
Ø Maintain control;
Ø Be patient;
Ø Don’t argue;
Ø State the official position clearly and succinctly;
Ø Advise the citizen of available options;
Ø Allow the citizen limited time and opportunity to state their position;
Ø Give the citizen reasonable time to comply with your lawful orders.
Arrests should be made when:
Ø After the above actions, there appears to be no indication of compliance;
Ø Actions of the citizen(s) cause a disorderly conduct or breach of the peace;
Ø The situation seems to be escalating to the point of potential violence.
This is not a weak response. It is practical and recognizes the difference in perspective between officers and certain citizens.
Reasons to take the above actions are:
1. Police Image – The public perception of an officer patiently trying to reason with a citizen who may honestly but erroneously believe they are complying with the law is better than a knee jerk, tough guy enforcement action, which may be seen as unnecessary.
2. Time - The time it takes an officer (5 minutes) to attempt to reason and peaceably resolve such a situation is far less that the time it takes to arrest, write a report and deal with the subsequent prosecution of such a case.
3. Government Cost – The cost of law enforcement and judicial personnel in processing and dealing with a criminal case is far greater than the writing of a three-paragraph incident report or no report at all.
4. Liability Risk – There is no liability risk in reasoning with a citizen, however, an arrest and possible use of force may lead to liability claims against the officer and the department costing taxpayers tens of thousands of dollars.
5. Potential Injury – There is no potential injury in talking to a citizen, however, physical contact is a necessary component of an arrest sometimes leading to the injury of the citizen and/or officers with all the resulting costs.
In conclusion, attempting to reason and peaceably resolve a situation serves everyone’s interest, while making an immediate arrest, absent the above arrest factors, serves no one’s interest.
Durruthy v. Pastor,
351 F.3d 1080 (11th Cir. 2003)
Following the removal of Elian Gonzalez, Miami experienced a number of violent street protests, which were covered by the media. The plaintiff, a cameraman, had filmed a number of these protests and contended that on other occasions, officers had allowed him to conduct his shoot in the street before complying with their instructions to remove himself from the area. On this occasion, the plaintiff was filming the arrest of an NBC cameraman when he was told by an officer to get out of the street. He backpedaled toward the sidewalk, continuing to film the arrest when defendant officer Pastor grabbed him from behind and with another officer, pulled him to the ground, pinning his arms behind him and handcuffing him.
The entire incident was filmed, including plaintiff’s pleading that he would go peacefully. Plaintiff was charged with resisting, obstructing or opposing an officer, but after viewing the videotape, the State’s Attorney dropped the charges asking for a liability release, which was refused. The district court’s denial of summary judgment on the false arrest and excessive force claims was overturned by the appellate court.
The appellate court found that the officer was entitled to qualified immunity as she had probable cause to arrest the plaintiff for violating the Florida statute, which prohibited persons from walking in a roadway where there are sidewalks and no circumstances requiring the citizen to be in the roadway. The district court and dissenting opinion did not agree that an officer should be entitled to qualified immunity when no probable cause exists for the offense charged and the offense, which is claimed to justify the arrest, is raised only after the civil suit is brought.
The appellate court found that plaintiff’s argument that he had had prior permission did not diminish the probable cause, especially since he did not name any officers, locations or circumstances under which he had been given permission. The dissenting opinion stated that this did create an issue of fact with regard to notice of the unlawfulness of the plaintiff’s actions.
The City of Miami policy stated, “No warrantless arrest of media personnel for non-felonious acts arising out of the pursuit of the news gathering function will be made without the express authority of the senior on-duty commanding officer or the staff duty officer.” The appellate court found that the policy did not vitiate probable cause citing prior precedent holding that a Department of Justice’s dual prosecution policy did not confer enforceable rights on a criminal defendant. It also stated that it could not find any case that even remotely suggested that a possible violation of an internal law enforcement guideline strips an officer of qualified immunity for an arrest founded on sufficient cause.
The dissenting opinion noted that Chief Martinez explained that the policy granted a higher degree of courtesy to members of the media and that if a member of the media complies with a police officer’s request to move, such compliance should be the end of the incident. The dissenting opinion concluded that this policy should be applied in evaluating the officer’s actions, agreeing with the district court, which stated, “When an obvious member of the media approached a police officer in a cleared street, is instructed to return to the sidewalk, and complies with the instruction, a police officer should be aware that a custodial arrest based on interference with a police officer is illegal.” It is undisputed that the officer knew plaintiff was a newsman and that put her on notice that she was not supposed to make an arrest without permission from a supervising officer.
Finally, the appellate court found that the use of force was not excessive. Any arrest justifies some use of force and the application of force in this case was de minimus. Forcing the plaintiff on the ground and placing handcuffs may have been unnecessary, but it was not unlawful. The Court cited Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000), in which it found force to be de minimus where an officer grabbed the plaintiff from behind by the shoulder and wrist, threw him against the van three or four feet away, kneed him in the back and pushed his head into the side of the van, searched his groin area in an uncomfortable manner and handcuffed him. (This writer suggests that such de minimus force should not be attempted outside of the Eleventh Circuit.)
In a footnote, the Court addressed the aggravation of a pre-existing shoulder injury. “What would ordinarily be considered reasonable force does not become excessive force when the force aggravates, ‘however severely,’ a pre-existing condition, the extent of which was unknown at the time.” Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th Cir. 2002).
Ochana v. Flores,
347 F.3d 266 (7th Cir. 2003)
Around 6:00 p.m., the plaintiff was found blocking traffic in an intersection, either asleep or passed out. He did not awaken until officers had made several attempts to wake him. After the plaintiff was out of the vehicle, one of the officers saw a white substance in a clear, unlabeled plastic sandwich bag sticking out from a backpack and believed it was either cocaine or heroine. He also found a brown bottle that appeared to be a prescription drug labeled in Spanish. Plaintiff claimed the powder was creatine (a muscle builder) and the brown bottle contained his thyroid medication. Plaintiff was arrested for obstruction of traffic, possession of a controlled substance and forging or altering a prescription. He spent two nights in jail. The charges were dismissed against him except for the obstruction of traffic for which he received a fifty-dollar fine. He claimed his vehicle was searched and he was arrested without probable cause.
The Court found that the officers’ first justification for a search incident to an arrest did not justify the search because plaintiff was not under arrest at the time of the search and even if he was going to be issued a traffic citation, a search incident to an arrest could not be conducted. The Court did find that the search was justified under the probable cause theory. Finding the plaintiff passed out at 6:00 p.m. at an intersection would give officers probable cause to believe he was intoxicated and that the intoxicating agents would be found in the vehicle. The false arrest claim failed since the presence of probable cause to arrest for any offense would bar the unlawful arrest claim. He could have been taken into custody for just the obstruction and given his condition, the reality was that it was unlikely that he would not have been taken into custody.
Renda v. King,
347 F.3d 550 (3rd Cir. 2003)
Plaintiff complained over the phone that her boyfriend, a state trooper, had slammed her into a wall, however, she did not want to give a statement or file charges, but just wanted to be left alone. Defendant troopers went to her friend’s apartment where she was interviewed, gave a written statement, but did not mention the assault. The defendant troopers stated that when they asked why she didn’t mention the assault, and said she had been lying in the earlier phone conversation. She was subsequently arrested for filing a false complaint. After her statement was suppressed because defendants did not provide her Miranda warnings, her case was nolled. She sued claiming her interrogation without Miranda subjected her to an unlawful search, arrest, imprisonment and malicious prosecution. A jury returned a verdict in her favor in the amount of $80,000.00 on the malicious prosecution claim.
The
appellate court vacated the judgment finding that evidence regarding Trooper
King’s good character for truthfulness should not have been excluded. Her challenge to Trooper King’s credibility
was made during an argument that he would lie and engage in illegal police
investigative techniques and frame an innocent person. This was suggestive of corruption and
improper performance of official duties.
The Trooper should have been allowed to contradict this claim with
evidence of good character and truthfulness.
Relying in part on Chavez v. Martinez, the Court found that the
troopers’ failure to advise the plaintiff of her Miranda warnings during her
custodial interrogation could not serve as the basis for her Section 1983 claim
unless the confession was used against the plaintiff. They noted room for argument as to whether or not such a
statement need be used at trial, or whether using it to obtain an indictment
may suffice.
Lawyer v. City of
Council Bluffs, 361 F.3d 1099 (8th Cir. 2004)
The Lawyer brothers, Michael, the driver age 17, and Timothy, the passenger age 21, were driving through Iowa on their way home to Wisconsin after a ski trip to Colorado. Upon being stopped for speeding, defendant officer shined his flashlight into the vehicle and saw Timothy zip up a small red pouch and place it in the glove compartment. He asked what was in the bag, to which Timothy replied it was nothing important. He asked if he minded if he took a look at it and Timothy replied that he’d rather not. Officer Clark then repeatedly stated that the bag looked like drug paraphernalia and asked if he could be permitted to look at it. Eventually, he commanded that the bag be handed to him, but Timothy repeatedly refused. Only after the officer threatened to start spraying pepper spray into the car and repeatedly demanding that Timothy get out of the car, did the officer finally reach over and open the passenger side door, stating to Timothy, “It’s entirely up to you. Open it up.”
Timothy then removed the red pouch and emptied its contents, which contained only candy. With a second officer present, Clark wrote Michael a citation and repeatedly asked him to get out of the car to sign the citation, to which Michael refused. Michael said that he was very willing to sign the citation, but he was cold, did not want to be filmed, (the cruiser video was operating), was afraid of traffic and felt threatened by the officer. After repeatedly asking Michael to get out of the car to sign the citation and telling him that he would be arrested if he refused to exit the vehicle, the officer reached into the open window, at which point Michael began to roll the window up resulting in a threat to break the window and the officers pepper-spraying Michael and accidentally hitting Timothy in the face. The boys then got out of the car. They were both placed on the ground, handcuffed and arrested.
The Court found that the search of the pouch was lawful as the officer stated he thought he saw a marijuana pipe in the pouch. “Once it is accepted that Clark reasonably thought he saw a marijuana pipe in the red pouch, then there was probable cause to search the pouch, even though Clark turned out to be mistaken.”
The use of pepper spray was also found to be objectively reasonable, as at the time, Clark could believe that he was in immediate danger and faced the possibility that he could be dragged down the road with his arm trapped in the window. The pepper spraying of Timothy was accidental and therefore did not amount to excessive use of force under the Fourth Amendment.
The arrest
of Michael was found to be lawful, as he had committed a motor vehicle
violation. The arrest of Timothy was
also found to be lawful, as during the course of the encounter, Timothy
repeatedly was coaching his younger brother not to comply with the police
officers’ lawful orders. “The purpose
of criminalizing conduct that interferes with official police action is to
enable officers to execute their peace-keeping duties calmly, efficiently and
without hindrance.” Timothy’s efforts
to cause Michael to defy the officers’ orders obstructed the officers by
putting obstacles in the paths of officers completing their duties and
hindering their efforts towards an orderly conclusion of the traffic stop.
Anderson v. Cass
County, Missouri, 367 F.3d 741 (8th Cir. 2004)
Two bail bondsmen and a bounty hunter entered Shamp’s home to inform her they were revoking her bond and were taking her into custody. There was an altercation when she attempted to flee and neighbors called regarding the disturbance. When officers arrived, they found the bondsmen standing over Shamp, who was crying and handcuffed. She told the officers they forced their way into her home, handcuffed her and slapped her several times. She appeared to have been handled roughly and the officers observed redness around her face and neck. Officers initially arrested the bondsmen for assault, but later the charge of burglary was added.
Charges were dropped against one bondsman while the other pled under Alford. In determining that the officers had probable cause for the arrest, the Court found that the bond revocation did not negate the criminal intent. Civil disputes do not always negate the elements of criminal intent. While the bondsmen claimed that they entered based on their bond contract, a reasonable officer could have seen their conduct as potentially criminal in nature. The bondsmen also claimed that Shamp was not trustworthy and therefore they could not rely on information she supplied to develop probable cause. The Court found that her past criminal history, officers’ past response to her residence on police business and her attempt to flee from the bondsmen did not establish that on the night of the alleged assault, she was untrustworthy.
Karam v. City of
Burbank, 352 F.3d 1188 (9th Cir. 2003)
Officer Sindle provided a report to Detective Miranda that Karam had entered the city council chambers and was told by him that she was trespassing. Miranda spoke to Karam, interviewed others and based on the advice of city attorneys issued a misdemeanor complaint for trespassing and delaying or obstructing a police officer. Karam appeared in court, was released on her own recognizance with a restriction that she not leave the state and appear in court in three weeks.
After the charge was dismissed, she brought a Fourth and First Amendment action against defendants. The Ninth Circuit adopted the position of the Fourth, Seventh and Fifth Circuits that a Fourth Amendment seizure only occurs when there is an actual detention. The Court went on to discuss and distinguish other circuit courts, (Second, Third and Fifth), that have found, under some circumstances, a pretrial release restriction may qualify as a seizure. Those circuits’ cases involved significantly more restrictive conditions involving felony charges.
Noting the Second Circuit’s opinion which relied on Albright v. Oliver, 510 U.S. 266 (1994), in which the plurality noted, “A person facing serious criminal charges is hardly freed from the state’s control upon his release from a police officer’s physical grip. He’s required to appear in court at the state’s command. He’s often subject… to the condition that he seek formal permission from the court…before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense.”
The Court also
upheld the dismissal of the First Amendment claim in that there was no evidence
to contradict the officer’s statement that he was unaware of Karam’s statement
or her history of criticizing the city or its officials, therefore, without
such knowledge, his actions could not be construed as retaliatory.
Dorman v. Castro,
347 F.3d 409 (2nd Cir. 2003)
Plaintiffs were given appearance tickets after entering a beach by boat for swimming in violation of a state policy prohibiting individuals from accessing the beach by means other than designated land-based entrances. The Court declined to determine whether a pre-arraignment summons constitutes a Fourth Amendment seizure as there was ample probable cause for the issuance of the summonses based on the plaintiffs’ admitted manner of entering the beach and their refusal to leave.
McCullah v. Gadert,
344 F.3d 655 (7th Cir. 2003)
Following an altercation in a bar during which off-duty officer Gadert broke up the fight, the State’s Attorney’s office brought felony charges against McCullah, which were dismissed. The State’s Attorney then substituted a misdemeanor charge of obstructing a police officer, which was also dismissed. McCullah claimed officer Gadert violated his Fourth Amendment right by providing false information about him in his incident report and through testimony offered at a preliminary hearing.
The first question addressed by the Court, was whether the Parratt rule foreclosed all constitutional claims when there is a parallel remedy under state law. The Court noted the broad reading in the First Circuit, which does foreclose claims of false arrest under the Fourth Amendment because there is an available action under state law. It rejected this position following the Tenth, Fifth and Second Circuit Court of Appeals, which allow constitutional claims even when common law torts may closely parallel the same interests protected by the constitutional rights.
The Court stated that on remand, the question should be resolved as to whether or not the summons is equivalent to a seizure within the meaning of the Fourth Amendment, and whether Gadert is individually immune from suit because McCullah appeared in court pursuant to a summons rather than a custodial arrest.
Pena-Borrero v.
Estremeda, 365 F.3d 7(1st Cir. 2004)
On November 10th, plaintiff was arrested on a valid warrant and posted a $300.00 bond. On December 21st, he was awakened at home in the middle of the night and again arrested on the same warrant. Despite his protests and display of documents including evidence that he had been arrested on the same warrant and posted bond on November 10th, officers took him into custody and transported him to police headquarters. The Court found that the allegations were sufficient to state a claim for false arrest and false imprisonment and that the officers were not entitled to qualified immunity. “If any doubts remained after appellant displayed the stamped warrant, a quick phone call to the precinct presumably would have resolved them.”
The Court granted the motion to dismiss on the excessive force complaint, which alleged that the officers used harsh language and handcuffed the plaintiff with his arms behind his back, exacerbating a prior non-obvious injury. The Court found that the allegations demonstrated no more than the degree of physical coercion typically attendant to an arrest. The fact that the arrest was unlawful did not automatically render the use of force unreasonable.
Lee v. Gregory,
363 F.3d 931 (9th Cir. 2004)
Defendant, FBI agent Gregory, was assigned to speak to Julian Christopher Lee, plaintiff, the brother of a fugitive, (Robert Q. Lee), who had a warrant issued out of New Jersey. When Gregory told Julian over the phone that the law did not require him to speak with Gregory, Julian angrily told Gregory to stop harassing him, cursed and hung up. Gregory had the Dade County Sheriff’s Department fax a copy of a warrant for Christopher Lee described as a black male, 6 feet 1 inch tall and 200 pounds with a Florida address and driver’s license.
The date of birth and social security number on the warrant were the same as Julian’s. The FBI file contained information indicating that Robert was living in Alabama under the name Christopher Lee and was using Julian’s birth date and social security number. Gregory passed the warrant on to the San Diego Sheriff’s Department, which executed the warrant on Julian, who was 6 feet 3 inches tall and 270 pounds, even though he stated that he had never been to Florida and was not the man named in the warrant. Four days later, after prompting by Julian’s attorney, Gregory sent photographs of Robert to Florida. Officials confirmed that they matched Christopher Lee.
Julian claimed that Gregory knew he was not the man sought by the Florida warrant, but arrested him in order to obtain information about Robert. Gregory moved for summary judgment claiming he had probable cause to arrest Julian and that no clearly established law prohibited him from executing a facially valid warrant.
The Court ruled that Gregory was correct in claiming that ulterior motives cannot invalidate police conduct that is justified by probable cause. However, knowingly arresting the wrong man pursuant to a facially valid warrant issued for someone else violates the Fourth Amendment. Qualified immunity will not protect an officer in such a situation even if there is no analogous case law. Some wrongs are self-evident and every officer knows, or should know, that he needs a warrant that correctly identifies the arrestee, or probable cause, to arrest a particular individual.
McCann v.
Mangialardi, 227 F.3d 782 (7th Cir. 2003)
Deputy Chief Mangialardi was on the payroll of a cocaine trafficker protecting his operation and investigating and arresting his competitors. At some point, they agreed that they needed to get rid of a federal informant. Otis Moore, the drug trafficker, planted drugs in plaintiff’s car, then called Mangialardi and told him that McCann was in a certain area with drugs in his car. Mangialardi contacted the police to stop, search and arrest the plaintiff. The plaintiff sued Mangialardi for false arrest and due process violations claiming, among other things, that he created false evidence for the purpose of procuring a criminal conviction and failed to disclose exculpatory evidence.
The court discussed whether Brady v. Maryland required disclosure outside of the context of a trial. United States v. Ruiz, 536 U.S. 622 (2002). The due process clause does not require pre-guilty plea disclosure of impeachment information, however, “Ruiz indicates a significant distinction between impeachment information and exculpatory evidence of actual innocence.”
In a request for admissions, defendants stated that plaintiff has no evidence from any source that Mangialardi, or any other police officer, withheld any exculpatory evidence. Failure to respond to this admission created conclusively that there was no evidence that the defendant withheld exculpatory evidence. Even if Mangialardi concocted a scheme to have the plaintiff arrested, there was no evidence that he conspired with Moore to have plaintiff “falsely” arrested, entitling him to summary judgment. There was no evidence indicating he knew the drugs were planted.
Chortek v. City of
Milwaukee, 256 F.3d 740 (7th Cir. 2004)
Fifteen plaintiffs were among a large group of ticket scalpers arrested by the Milwaukee police. They claimed that the manner of treatment was unreasonable, that the length of their detention was unreasonable and that the policy on how to handle such arrestees was unconstitutional. The conduct of officers in handling arrestees will be judged under Atwater v. City of Lago Vista and Whren v. United States, which stated respectively, “When a defendant makes a colorable argument that an arrest, with or without a warrant, was conducted in an extraordinary manner, unusually harmful to ‘his’ privacy or even physical interest,” review may be appropriate. “When probable cause exists, only searches or seizures conducted in an extraordinary manner require a balancing analysis.”
The court found that the plaintiffs’ complaint that they spent an unnecessarily long time in handcuffs in police vehicles, were subjected to thorough body searches, were unable to make phone calls and had to share holding cells with other prisoners, was not “unusually harmful” to physical interests or privacy. The arrests may have been humiliating, but they were no more harmful than the normal custodial arrest.
The plaintiffs complained that their detention between three and fourteen and one half hours was excessive. In County of Riverside v. McLaughlin, the Supreme Court noted that examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual or delay for delay’s sake. The defendants explained that the length of detention was based on a backlog resulting from the arrest of large groups of people on a busy night during which officers processed the paperwork as quickly as they could. The court found that, in the absence of evidence of improper purpose for the delay, the government provided sufficient explanation.
Finally, the manner in which the arrests were executed was determined by a lieutenant and deputy chief, neither of whom was a policy maker sufficient to establish Section 1983 liability.
Martin v. City of
Oceanside, 360 F.3d 1078 (9th Cir. 2004)
Doctor Trotman phoned the Oceanside Police Department to report that he was extremely concerned about his daughter’s welfare. He provided the address, a description of his daughter and her vehicle. At approximately 4:30 p.m., Officer Kelly knocked on the door and rang the doorbell but no one responded. The daughter and plaintiff were inside, but did not answer because they mistakenly believed it was the plaintiff’s ex-wife who had called the police. After the dispatcher unsuccessfully phoned the daughter, the officer found an unlocked garage door and upon entering, discovered an unlocked door to the main house.
He exited the garage and spoke with a next-door neighbor who had seen a woman there three days before, and a man there the day before, and stated that both occupants’ vehicles were in the driveway and they should be home. Kelly and his back up officer entered the home with their guns drawn and finding no one downstairs, they went upstairs where they encountered the daughter exiting a bedroom. After an argument about the officers not having a warrant, she produced her identification and the officers having confirmed that she was safe, left the home.
The appellate court ruled that the entry was constitutional under the “emergency aid” exception to the warrant requirement. The Circuit required three prongs for this exception:
1. The police have reasonable grounds to believe that there is an emergency and an immediate need for assistance for the protection of life or property;
2. The search must not primarily be motivated by an intent to arrest or seize evidence; and
3. There must be some reasonable basis, approximating probable cause, to associate the emergency with the area to be searched.
Having determined that the facts supported this test, the Court moved on to the claim that the officers violated the knock and announce requirement.
The district court had found that the officers had substantially complied with the knock and announce rule and that the entry was justified by the emergency aid exception. The appellate court added to this that there was simply no violation of the Fourth Amendment. The officers knocked on the door, were in uniform and plaintiff heard and observed the officers, but chose not to answer the door. Instead he went upstairs, called his lawyer and secreted himself. “To see this set of facts as a violation of the Fourth Amendment’s knock and announce rule is utterly incomprehensible. The prophylactic purpose of the rule is not served when the occupants of the home know that it is the police knocking at the door and simply leave the area and choose not to answer.”
The Court chastised the plaintiff stating he was the victim of his own faulty judgment and behavior. He alone was responsible for the officers’ entry after he chose to play hide-and-go-seek with the authorities. Finally, the Court stated that the citizens of Oceanside would have been justifiably outraged if