Legal Officers Section
2005 IACP Conference
September, 2005
42
Presented by Elliot Spector
Connecticut Criminal Law Foundation, Inc.
Noble, Spector, Young & O’Connor, PC
Contents
Investigative Detention
Turmon v.
Polk v.
Fisher v. Harden, 398 F.3d 837 (6th Cir. 2005)
Denver Justice & Peace
Committee, Inc. v. City of
Excessive Force - Deadly:
Nimely v.
City of
Parks v. Pomery, 387 F.3d 949 (8th Cir. 2004)
Harris v.
Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005)
Young v. City of
Excessive Force - Nonlethal:
McVay v. Sisters of Mercy Health System, 399 F.3d 904 (8th Cir. 2005)
Mercado v. City of
Holmes v. City of
Hanig v. Lee, 415 F.3d 822 (8th Cir. 2005)
Marquez v. City of
Smith v. City of
New v. City of
False Arrest/Malicious Prosecution
Cooper v. Dillon 403 F.3d 1208 (11th Cir. 2005)
Vives v.
City of
Burke v. Town of
Mathies v. Fritton, 128 Fed.Appx. 787 (7th Cir. 2005)
Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005)
Dibella v. Borough of Beachwood 407 F.3d 599 (3rd Cir. 2005)
Johnson v. Lindon City Corporation, 405 F.3d 1065 (10th Cir. 2005)
Search & Seizure
Cummings v. City of
Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005)
Hale v. Kart, 396 F.3d 721 (6th Cir. 2005)
McNeal v. Roberts, 129 Fed.Appx. 110 (5th Cir. 2005)
Harris v. Lee, 127 Fed.Appx. 710 (5th Cir. 2005)
San Jose Charter of Hells Angels v.
City of
McClendon v. Story County Sheriff’s Office, 403 F.3d 510 (8th Cir. 2005)
Failure To
Protect
Kennedy v. City of
Torres-Rivera v. O’Neill-Cansell, 406 F.3d 43 (1st Cir. 2005)
Gray v. City of
Bradich
v. City of
Garretson v. City of
Owensby
v. City of
Sheeler
v.
Municipal/Supervisory Liability
Roberts v. City of
Young v. City of
McCully v. City of North Richmond Hills, 406 F.3d 375 (5th Cir. 2005)
Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005)
DiRicco
v. City of
Mercado v. City of
Stewart v. City of
Schroder
v. City of
Miscellaneous
Fifth
Amendment
Extraordinary
Circumstances Defense
Property
INVESTIGATIVE DETENTION
Turmon v.
At
The Court
found that
The Court also found that the officer’s use of force was unreasonable. It commented that drawing a weapon is an extraordinary measure that can be justified as a reasonable means of neutralizing potential dangers. Applying Graham v. Connor analysis it would be clear to a reasonable officer that he could not point his gun at an individual, jerk him from his room and handcuff him when there was no reasonable suspicion that a crime had been committed, and no indication that the individual posed a threat to the officer, or any indication that the individual was attempting to resist.
Polk v.
Upon
receiving a telephone call from her sister that there was something wrong with
their mother, the plaintiff began to drive to her sister’s house to pick her up
to continue on to their mother’s.
The Appellate Court affirmed the summary judgment on behalf of the officer on the false arrest claim finding the excessive speed was sufficient to establish a “fair probability” that Polk had committed reckless driving, which is punishable by up to 93 days in jail. The Court determined the officer’s actions amounted to an arrest by placing Polk in the police car and handcuffing her, actions which were not reasonably necessary for investigative purposes. The Court reversed the summary judgment on the excessive force claim finding that some of the actions taken occurred after the plaintiff was already lying flat on the ground and after she was handcuffed. At these points there was no evidence that she presented a threat to the officer or to anyone else and there was no governmental interest in using unnecessary force after she had been neutralized.
Fisher v. Harden, 398
F.3d 837 (6th Cir. 2005)
The plaintiff, a seventy-seven year old retired farmer, went out to shoot groundhogs. He positioned himself sitting in a folding chair on an elevated railroad grade. A passerby, thinking he was possibly suicidal, called the Sheriff’s Department. The officers used a microphone and instructed the plaintiff to come toward them. He complied and also complied when the officers told him to put down his gun and, later, when he neared the officers, to lie down on the ground. When the officers handcuffed him, he went into cardiac arrest, which resulted in a permanent disability.
It was argued that the officers violated his Fourth Amendment rights when they arrested him without probable cause required to justify a mental health seizure. The officers argued and the District Court agreed that the officers merely conducted a Terry stop and that they had reasonable suspicion to believe that this individual may have presented a danger to himself or others.
The Appellate Court did not agree, stating that in the Circuit, absent criminal activity, an officer may not physically restrain an individual merely to assess his mental health. The Court cited cases from the Second, Fourth, Fifth, Seventh, Eighth and D.C. Circuits, all agreeing that the standard for a seizure of someone with mental health problems is probable cause to believe that the person is dangerous to himself or others. The facts of this case did not demonstrate the requisite probable cause standard. Fisher did not do anything that the officers considered suspicious or threatening and complied with the officers’ requests. There was no danger after complying with the officers’ requests to lay down his gun and the officers never even questioned him with regard to potential depression or suicide. Even if reasonable suspicion were the standard for detaining someone with mental health problems, the rule would not apply in this case because the force used by the officers elevated a seizure from a mere investigative stop to an arrest.
Denver Justice &
Peace Committee, Inc. v. City of
The
After
discussing the law of Terry and Ybarra, the Court
went on to note other cases where they have found pat downs to be invalid,
including the pat down frisk of an individual who was present at the site of a
suspected meth lab, the pat down of an occupant at a
home of an individual with probable cause to believe he was committing a
federal offense. The defendants
attempted to support their actions citing
In distinguishing Ritchie, they noted that the search of that property was related to an armed robbery and Ritchie was suspected as being the armed robber. In this case the warrant was for the search of offices. There was no reason to believe that Espinosa was involved in the incident and the search was for First Amendment protected materials.
Summers authorized officers to detain occupants of a premises during the course of a search but the Court expressly noted that the authorization of a temporary detention did not apply where a warrant authorizes a search for mere evidence at the premises of a party whose possession the materials sought is not a crime. Muehler was also inapplicable since the issue pertained to the detention and handcuffing of an occupant during a search of a house in a gang related shooting. The search in question did not implicate the apprehension of danger or the presence of contraband; rather, the circumstances fell squarely into a factual pattern where a pat down search of an individual would be prohibited, absent reasonable, individualized suspicion.
EXCESSIVE FORCE
Nimely v. City of
Following a shooting at a party outside a rental hall, officers approached plaintiffs in the vicinity of a cabstand. Plaintiff Nimely began to run resulting in a foot pursuit during which the officers claimed he held a gun, which he denied. Nimely apparently hit a fence fell to the ground and began to get up. According to the officers he turned pointing his gun at one of the officers who fired striking him in the chest. Contradictory witness testimony and testimony of medical and procedural experts resulted in a verdict in favor of the shooting officer. Although it was clear Nimely was shot in the back the evidence presented did not exclude the possibility that he may have been turning toward the officer with a gun in his hand at the moment of the shooting.
“An officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officers or others. …the reasonableness of the officer’s decision to use force in effectuating a seizure depends only on the officer’s knowledge of circumstances immediately prior and at the moment that he made the split-second decision to employ deadly force.” (Citations omitted.)
The jury apparently believed the officers contention that the Plaintiff was turning toward them at the time of the shooting in finding for the Defendant officer. The police expert’s testimony as to the tendency of police officers in general and the defendant officers in particular not to lie in excessive force investigations was erroneously admitted resulting in the appellate court ordering a new trial.
Parks v. Pomery, 387 F.3d 949 (8th Cir. 2004)
At about
The Appellate Court reversed the District Court’s denial of summary judgment based on qualified immunity. It found that there was no dispute that Gottstein’s gun was just inches from Parks hand during a physical struggle that was hostile and intense under extremely volatile circumstances that were potentially deadly and the events were evolving rapidly. Given the state of the law at the time and the particular facts of the case Pomeroy did not violate a clearly established Constitutional right.
Harris v.
The Court upheld the denial of qualified immunity for the Defendant Officer who rammed the suspect vehicle. The Plaintiff was pursued for approximately nine miles in 6 minutes. The pursuit started when Harris failed to stop after being observed driving 18 mph above the speed limit. During the pursuit he drove at speeds between 70 mph and 90 mph committing numerous motor vehicle violations but always in control of his vehicle including using his blinkers when turning. At one point his vehicle made minor contact with a police cruiser. The Defendant, Officer Scott, requested and received permission to perform a PIT maneuver. Because the vehicle was traveling too fast, he instead rammed Harris’s vehicle rendering Harris a quadriplegic.
Applying
The supervisor who authorized the PIT maneuver was entitled to immunity because he did not authorize the ramming. The PIT maneuver which was authorized, was described as a driving technique designed to stop a fleeing motorist safely and quickly by hitting the fleeing car at a specific point on the vehicle, which throws the car into a spin and brings it to a stop. It is intended to be performed at low speeds on wide straightaways, on dry pavement by a properly trained driver.
Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005)
At about
According to the plaintiffs, Craighead held the gun over his head, pointed upward, holding the gun away from Scott who was much shorter. They further claimed that Lee knew that one of the two men was a victim and that Lee fired his shotgun within three seconds of exiting his squad car without issuing any warnings or commands under circumstances under which a trained shooter would know that the shot would hit both men.
Accepting the plaintiffs’ version of the facts, the Court affirmed the denial of summary judgment on the issue of qualified immunity. The Court held further that under the facts, they were required to assume that Craighead did not pose a significant threat of death or serious physical injury to Lee because the pistol was continually pointed over Craighead’s head and Lee fired the shotgun in circumstances in which he knew or should have known that he would hit both Craighead and Scott. In addition, the facts indicate that the warning was feasible, but not given.
Young v. City of
Two
Cornell, an
off-duty
On Appeal the defendants challenged the verdict against Silitro arguing that plaintiff’s expert testimony with regard to leaving cover was erroneously admitted. The Court did not agree, finding that the rule in the 1st Circuit is that once it is clear that a seizure has occurred, the court should examine the actions of the government official’s leading up to the seizure. Police officer’s actions need not be examined solely at the moment of the shooting. The Court upheld the verdict finding that there was evidence that Cornell was identifying himself as an officer, was holding a gun with two hands as an officer would do and was immediately recognized by bystanders as an off-duty officer. There was also evidence that Cornell’s gun was pointed downwards and that the officer shot him extraordinarily quickly, almost immediately after he left the restaurant and without giving him adequate warning.
McVay v. Sisters of Mercy Health System, 399
F.3d 904 (8th Cir. 2005)
Sears, a
police officer, worked as a security guard for
The Court affirmed the District Court’s grant of summary judgment finding that under the circumstances with McVay barreling toward glass doors, that Sears knew would not open, and the risk that McVay in his impaired state might have crashed into the glass potentially injuring himself, that the officer acted in an objectively reasonable manner tackling McVay to the ground.
Officers from the Marijuana Eradication Team (MET) executed a search warrant believing that the plaintiffs, a 35 year old dentist, 5’9” inches tall and weighing 165 lbs, and his wife, 34 years old, 5’5” tall and weighing 125 lbs, were growing marijuana. Five officers executed a para-military style entry, without knocking. They encountered the dentist as he came into the house from the back door, pointed a gun at him and ordered him to lie down. The officer then pushed the gun to the rear of his head and placed his knee in his back. His wife, dressed only in a t-shirt and cotton briefs, opened the bedroom door to be confronted with someone pointing a flashlight at her, pushing their fingers into her throat, forcing her into the bedroom and telling her to get on the floor, with a gun pointed to her head, while an unidentified gunman kneed her in the small of her back and handcuffed her.
The Court ruled that the use of force was not objectively reasonable, that the officers could not have believed that there was any exigency as there was no reason to believe that the plaintiffs would resist or flee, they had no criminal history, nor was there any reason to believe they were armed. Further, poking fingers into the throat of the wife constituted a separate battery. The Court referred to the government’s interest in using handcuffs while executing a warrant authorizing a search for weapons and a wanted gang member, Muehler v. Mena, 125 S.Ct. 1465 (2005), versus the government interest in conducting a search where there is no belief that weapons will be found and the occupants of the house, are in fact, a dentist and his wife.
Mercado v. City of
Upon arrival at the Mercado home in response to a domestic, officers found Mr. Mercado sitting on the kitchen floor, crying, with a knife in both hands pointed toward his heart and a telephone cord wrapped around his neck. After ordering him in English and Spanish to drop the knife, Officer Padilla followed Rouse’s order to hit Mercado with a Sage and then with an SL6 Launcher (less lethal munition, fires polyurethane baton 1.5 inches wide designed to leave bruises), hitting Mercado once in the head resulting in brain injuries.
Applying Graham, the Appellate Court overturned the District Court’s grant of qualified immunity to the officers. The Court determined that he was not committing a crime, resisting arrest or posing an immediate threat to the officers. By aiming at Mercado’s head, Padilla used excessive force because he was trained on how to use the Sage Launcher - the weapon accurately hits targets at distances up to five yards - and Padilla was aware that the launcher was a lethal force if shot at a suspect from close range. Furthermore, the officers were aware that alternative actions such as using a crisis negotiation team were available, and recommended under policy; especially when Mercado was not making any threatening moves toward himself or the officers.
Even though there was no specific case law that would put Padilla on notice that his actions violated clearly established law, the court found that he was not entitled to qualified immunity because he was aware that police policy forbid him from using deadly force under the circumstances. Simply put, he used deadly force in violation of the clearly established principal, that deadly force cannot be used in non-deadly situations. “…this is one of the cases that lie so obviously at the very core of what the fourth amendment prohibits, that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law. The facts in this case are also so far beyond the hazy border between excessive and acceptable force that the official had to know he was violating the constitution even without case law on point.” (citations omitted.)
Note: Under
Holmes v. City of
The Court upheld the District Court’s granting of summary judgment on plaintiff’s excessive force claim. Plaintiff, who was suspected of possessing narcotics, attempted to flee from the officer by jumping on a train. He alleged that the officer used excessive force in grabbing him to prevent his escape, thereby causing him to fall beneath the train severing both his legs. The Court found that the District Court was not bound by the opinion of plaintiff’s expert on his unreasonableness and Holmes did not demonstrate an issue of material fact sufficient to survive qualified immunity.
Hanig v. Lee, 415 F.3d 822 (8th Cir. 2005)
Sixteen-year-old Hanig was arrested by Officer Lee for skateboarding in a parking lot. A senior officer testified that Officer Lee improperly applied handcuffs causing pain and severe bruising to Hanig. In the Eighth Circuit Court Appeals an actual injury must be shown to support an excessive force claim under the fourth amendment. Even though Hanig’s surgeon’s opinion that he suffered a 1.3% permanent impairment was based only on Hanig’s subjective complaints, there was no surgeon’s opinion to contradict this testimony. Therefore the Court affirmed the jury’s award of $153,000.00 in damages.
Marquez
v. The City of
Police began to pursue a vehicle that refused to pull over for a non-functional license plate lamp. During the pursuit they learned this vehicle had been involved in a burglary earlier that night. After the vehicle struck a wall the first officer, Defendant Lehocky, testified that the Plaintiff passenger Marlo Marquez exited the car ignoring his command to stop. He ordered his dog to apprehend the suspect and Bart being the obedient servant complied latching firmly onto Marquez. Meanwhile, Cynthia Perkins, the driver, attempted to drive away. Officer Heshley ordered Perkins out of the vehicle and when she complied Lehocky removed Bart from Marquez. A jury returned a verdict for the Defendants.
The Court noted that the first, sixth, and ninth circuit Court of Appeals had ruled that the use of a police dog is not considered deadly force. Because neither party raised this issue, the Court assumed that use of a police dog is not deadly force ipso facto.
The first question was whether the use of the dog was objectively reasonable. The Court found it was because first, it was reasonable for the officer to believe that he was faced with two potentially armed burglary suspects (the officer testified that between one quarter and one half of all robbery suspects are armed). Second, the high-speed chase demonstrated that the driver was a danger to the public and was willing to evade arrest. Third, Marquez attempted to evade arrest by running away and trying to climb a fence. Finally, at the time of the arrest, Lehocky was the only officer at the scene attempting to secure two felony suspects.
The second issue pertains to the exclusion of the Plaintiff’s expert’s testimony. The expert, George Kirkham, intended to testify that the only reasonable use of force is the minimum use of force and as to what constituted well-established law enforcement standards. The Appellate Court found that the District Court did not err in concluding that his testimony was irrelevant and confusing. Testimony regarding the minimum use of force is irrelevant, as the Fourth Amendment does not require police officers to use the least intrusive amount of force. The exclusion of the testimony regarding law enforcement standards was also appropriate as violations of state law and police procedure generally did not give rise to a §1983 claim for excessive force. The only issue before the jury was whether Lehocky acted as a reasonable officer when he ordered his police dog to apprehend Marquez, therefore, the Court did not abuse it’s discretion in excluding the testimony of Kirkham.
Finally, the Court did not err in refusing to have evidentiary ruling on the “expert juror issue.” One of the jurors was accused of holding herself out as an expert in police dog training asserting that police dogs did not bite unless the suspect is fleeing. The injuries suffered by Marquez were not serious and police dogs do not bite the first part of the body they come across. The Court agreed with the District Court that the juror only referred to her own personal experiences, which are not generally considered extraneous prejudicial information. Regarding such issue, the proper inquiry is whether the jurors discussed specific extra – records facts related to the Defendant, and if they did, whether there was a significant possibility that the Defendant was prejudiced thereby.
Smith v. City of
Smith’s wife called the police reporting that her husband had hit her, but had no weapons and was dressed in pajamas. Officer Reinbolt approached Smith standing on his front porch, told him to take his hands out of his pajamas, but was met with expletives. After several more refusals to remove his hands from his pockets, he entered his home. He then reemerged onto the porch, complied with further instructions to remove his hands, but refused to put his hands on his head and walked toward the officer. Another officer arrived and requested additional assistance including a canine unit. At least four officers were present when Smith, still refusing to turn around and place his hands on his head, was pepper-sprayed. The officers grabbed him from behind, slammed him against the door, threw him down on the porch and the canine was ordered to attack him. “Quando” bit Smith on his right shoulder, and the neck area and arm. Smith then agreed to comply and curled up in a fetal position in an attempt to shield himself from the dog. He was dragged off the porch face down followed by another order to Quando to bite Smith, to which she complied by biting Smith’s buttocks. While this was occurring Smith was sprayed at least four times. The officers washed out his eyes, but not his wounds. Smith plead guilty to willfully resisting and obstructing an officer.
Defendants moved for summary judgment arguing that plaintiff’s allegations were barred by Heck v. Humphrey, and that their use of force was objectively reasonable.
Heck v. Humphrey:
The Court denied the motion, which argued that the conviction for resisting barred the use of force claims. First, the Court determined that excessive force used by a police officer at the time of the arrest is not within the performance of the officer’s duty. Second, the Court determined that success in the civil suit would not invalidate the conviction since Smith committed the crime prior to the use of excessive force. The Court determined that by refusing to take his hands out of his pockets, reentering his home, repeatedly refusing to put his hands on his head, and coming down off the porch and finally refusing to put his hands on his head and turn around, that each of these acts constituted a violation of the criminal statute. Since there was nothing in the record to inform the Court as to the factual basis of the plea, they determined that the lawsuit did not necessarily imply the invalidity of his conviction and therefore the suit was not barred by Heck.
Excessive Force:
In applying Graham under the investigative facts, the court determined that Smith was not a particularly dangerous criminal. Although domestic violence is reprehensible, at the time Officer Reinbolt arrived, he was standing on his porch alone, separated from his wife, had no guns or other weapons and the nature of the crime (hitting his wife and grabbing her breast very hard) provided little basis for the officer’s use of force.
Second, the record does not reflect that he posed an immediate threat to anyone’s safety. For most of the incidents he was in plain view and before the force was used, he did remove his hands from his pajama pockets. The defendants conceded in depositions that Smith did not pose a significant threat of death or serious physical injury and one officer stated that he made no threats, verbal or physical, toward him or anyone else. With regard to his act of resistance, he continually ignored the officer’s requests, reentered his home for only a brief period, and did not attempt to run from the officers. To the extent that he did physically resist, this lasted for only a brief time. There was no evidence that he attacked the officers or their dog, nor did it appear that his resistance was particularly bellicose.
Definition of Deadly
Force / Use of Canine:
The 9th
Circuit reversed itself and adopted the use of deadly force used in the 7th
Circuit (3rd, 5th, 6th, 7th, 8th, 10th, 11th Circuits and 50 states plus the
Finally, the court did not determine whether the use of a police dog to subdue a suspect constituted deadly force generally, nor did it determine under what circumstances the dog might constitute deadly force. Instead, the Court left this determination to the District Court.
New v. City of
Officer Wang observed three males turn into a driveway of a known crack house. He believed he saw the driver make a quick drug transaction and stopped them for questioning. The driver’s name came through with two outstanding warrants. While handcuffing the operator, the plaintiff, Allen New, began digging into his back pockets. He complied when the officer told him to place his hands on the dashboard, but when the officer looked away, he again reached into his back pockets. After his second command was ignored, Wang jumped into the front seat to attempt to restrain Allen. Trumaine, Allen’s son, joined in on the struggle, resulting in a call for backup and a subsequent subduing of the father and son. Allen and Trumaine characterized the beating as being unprovoked leaving one with a swollen eye and broken nose and the other with compacted teeth.
After denial of summary judgment, a jury returned a verdict in favor of Officer Wang. The court set aside the judgment and ordered a new trial based on the manner in which evidence with regard to the finding of cocaine in the vehicle was presented to the jury.
Wang claimed to the Appellate Court that the District Court’s grant of a new trial negated the jury’s finding of qualified immunity and therefore the Appellate Court had jurisdiction. The Appellate Court determined that because a discretionary call is not a pure matter of law, the appeal had to be dismissed.
FALSE ARREST/MALICIOUS PROSECUTION
Cooper v. Dillon 403
F.3d 1208 (11th Cir. 2005)
The
publisher of a free weekly newspaper in
Any person who is a participant in an internal investigation, including the complainant, the subject of the investigation and the subject’s legal counsel or a representative of his or her choice, the investigator conducting the investigation, and any witness in the investigation, who willfully discloses any information obtained pursuant to the agency’s investigation, including, but not limited to, the identity of the officer under investigation, the nature of the questions asked, information revealed, or documents furnished in connection with a confidential internal investigation of any agency, before such complaint, document, action , or proceeding becomes a public record as provided in this section commits a misdemeanor of the first degree….”
The Plaintiff was arrested for writing a commentary in his paper about the investigation.
Constitutionality of
Statute
The Court began its discussion by citing a number of cases stressing the importance of freedom of the press in guarding against the miscarriage of justice by subjecting government officials to extensive public scrutiny and criticism. The Court then held that the statute was not a prior constraint of free speech because the thread of criminal sanctions was imposed after the publication. However, the Court did determine that the statute was content-based because the purpose of the statute was to stifle speech of a particular content, specifically, speech about pending investigations of law enforcement officers. In order for the statute to be constitutional it must be narrowly tailored to promote a compelling government interest. The Chief argued there were three compelling interests at stake.
1) There is an interest in maintaining the integrity of the investigative process by shielding potential witnesses from information that could alter their testimony. This interest was rejected as a sufficiently compelling justification for content-based restrictions under Landmark Communications, Inc. v. Virginia 435 U.S. 829 (1978).
2) The interest in protecting wrongfully accused officers from defamation was found to be insufficient to sustain the statute. The Supreme Court noted in Landmark that injury to official reputation is an insufficient reason for repressing speech that would otherwise be free. Rather, the proper remedy would be the State’s liable laws.
3)
The Chief cited safeguarding the privacy interests of
targets, witnesses, and complainants in the investigation as a compelling state
interest. The Supreme Court precedent
also rejected this claimed interest in support of criminal sanctions for the
publication of lawfully obtained information.
Chief’s Liability in
His Individual Capacity
Under a qualified immunity analysis, the Court determined that the Chief should not be held liable as he relied on a statute that he was entitled to assume was free of constitutional flaws. “…police officers on the street are ordinarily entitled to rely on the assumption that legislators have considered views of legal counsel and concluded that the ordinance is a valid and constitutional exercise of authority.”
Chief’s Liability in
His Official Capacity Claim
Under Pembaur, a municipality may be held liable for a single decision by a municipal policy maker under appropriate circumstances. It was not disputed that the Chief, under the City Code, was the ultimate policy maker for police procedures in the City. His decision to enforce an unconstitutional statute was sufficient for § 1983 liability. “Proof that a municipality’s… authorized decision maker has intentionally deprived the Plaintiff of a federally protected right necessarily establishes that the municipality acted culpably.”
The Chief argued that the City could not be held liable for enforcing an unconstitutional statute which the municipality did not promulgate or adopt. The Court rejected this argument because the City’s Ordinances provided that it was unlawful for any person to commit within the City limits any act, which is or shall be recognized by the laws of the State as an offense. The Chief’s decision to enforce an unconstitutional statute constituted a deliberate choice that ultimately deprived the Plaintiff of constitutional rights and therefore triggered municipal liability.
Vives v. City of
Vives brought an action claiming, amongst other things, a violation of his First and Fourth Amendment rights in an arrest for aggravated harassment pursuant to the New York Penal Law in connection with his mailing of non-threatening religious and political materials to a political candidate and other people of the Jewish faith which he claimed he sent with the intent to alarm the recipients about current world events prophesized in the Bible. He also challenged the constitutionality of the statute.
New York Penal Law § 240.30 provides in relevant part:
A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: (1) Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.
The District Court ruled that although the statute had “never been declared unconstitutional on its face that a declaration of the sections unconstitutionality was inevitable and under the circumstances the officers would have been on fair notice that the arrest of Vives was unconstitutional.
The Appellate Court did not agree stating, “absent contrary direction state officials… are entitled to rely on a presumptively valid state statute… until and unless [statute is] declared unconstitutional… ‘the enactment of a law forecloses speculation by enforcement officers concerning [the law’s] constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’”
In 1982
Williams was raped and murdered, stabbed 38 times and left for dead with her
two young children in the apartment.
Before she died, she identified her attacker as a black man with a
beard. Approximately a year later,
The inquiry
was whether
Burke v. Town of
The plaintiff was arrested for the murder of a seventy-five year old woman whose body was mutilated in a wooded area. Burke claimed that the police officers violated his Fourth Amendment rights by arresting him in his home without a valid warrant, by arresting him without probable cause, and claiming the arrest was based on misleading warrant application information with intentional and reckless disregard for the truth.
The warrant was issued under the paperless computerized Warrant Management System. In lieu of a signed arrest warrant accompanied by an affidavit describing the facts, the police presented other documentary evidence and testimony indicating that a warrant was properly issued. Because the plaintiff was unable to produce any evidence demonstrating that no warrant was issued apart from his affidavit stating that he never saw one, the Court determined that the record failed to support his allegation that he was deprived of his constitutional right to be arrested at home only upon issuance of the warrant.
The plaintiff claimed that the arrest was made without probable cause. At the arraignment the day following the plaintiff’s arrest, a trooper called a sergeant who was at the courthouse to tell him that the DNA analysis results excluded the plaintiff as a source of male DNA on the victim’s left breast. The sergeant alerted the District Attorney who represented to the arraigning judge that the DNA analysis had shown “ambiguous” results and that further testing was required. He then sought detention without bail. While Burke was awaiting release on conditional bail, a comparison of palm prints found on the victim’s body against his showed that he was not the source of the print. He was released forty-one days after his arrest. Contrary to this evidence, at the time of the arrest a police canine tracked from the body to the plaintiff’s front door, and two independent witnesses saw him outside his house and described the clothing he was wearing. He denied owning such clothing and also changed his story several times with regard to being in the park where the victim was murdered. Also, a national expert in forensic dentistry determined to a reasonable scientific certainty that the plaintiff’s teeth matched the bite marks on the victim’s breast. The Court determined that this evidence was sufficient to amount to probable cause for the arrest. The Court noted that forensic evidence relied on by police to establish probable cause for arrest need not be unassailably accurate. In many types of forensic analyses, an examiner can do no more than speak in terms of probability.
The misleading warrant application allegation was based on the plaintiff’s claims that the warrant included inculpatory bite mark evidence that they knew or had reason to know was inaccurate and excluded exculpatory DNA evidence that would have eliminated probable cause. Because the plaintiff did not dispute the forensic expert’s credentials, he failed to establish that the officers had any reason to doubt his opinion, and the plaintiff also failed to establish circumstances that evinced an obvious reason to doubt the veracity of the inculpatory bite mark evidence.
With regard to the exclusion of the exculpatory DNA evidence, the Court found that, given the greater certainty of the DNA analysis, this information was known to the officers prior to the arrest, a reasonable jury could determine that this evidence vitiated probable cause. Forensic lab notes indicated a call to Trooper McDonald regarding the DNA evidence over an hour before he called the arresting sergeant informing him of the dental office approximately four hours before the arrest. Trooper McDonald was not entitled to summary judgment. He argued that he had no constitutional duty to disclose exculpatory evidence prior to Burke’s arrest because he was neither an affiant for the arrest warrant nor technically an arresting officer. The Court did not agree, finding that he had a constitutional duty to fully disclose exculpatory evidence to his fellow officers seeking a warrant based on probable cause. However, the record failed to support any reasonable inference that the officers were not informed of the exculpatory DNA results and would not be entitled to qualified immunity. The Court also found that the private consulting forensic dental expert was both acting under color of law and entitled to qualified immunity. The record revealed no evidence to support an inference that the doctor’s methodology or judgment were so clearly flawed that he harbored serious doubts about the reliability of his resulting opinion.
Mathies v. Fritton, 128 Fed.Appx. 787 (7th Cir. 2005)
The District Court denied defendant’s motion for summary judgment in a malicious prosecution claim. Defendant officer claimed that he was absolutely immune from suit because the acts for which plaintiff sought to hold him liable were intimately related to the judicial process and taken at the direction of the prosecutor insofar as they consisted of testimony before the grand jury. The Court disagreed, finding that the actions of the defendant pre-dated grand jury testimony, and even if the grand jury testimony was the primary basis for plaintiff’s claim, the officer still would not be entitled to absolute immunity.
The Court did find that because the plaintiff never claimed the officer lied before the grand jury, the presumption of probable cause to prosecute raised in the grand jury indictment was not rebutted by Matheis. Holding there was probable cause to prosecute the plaintiff, the Court determined that the officer was entitled to qualified immunity.
Tanberg v. Sholtis, 401
F.3d 1151 (10th Cir. 2005)
Two women sued the defendant officer for false arrest and excessive force. The jury found in favor of the officer, on the excessive force and assault and battery claims, and the Court directed a verdict on the false arrest claims. The Court determined that the officer’s violation of the department’s off-duty arrest policy was irrelevant to the false arrest claim. Plaintiff argued that the evidence related to the department’s policy was relevant as to the excessive force and assault and battery claims. He appealed the Court’s grant of the defendant’s motion in limine for exclusion of evidence of the department’s policies, because they were irrelevant to the federal claims and likely to cause jury confusion regarding the state claims.
Plaintiff attempted
to introduce two types of evidence related to the policies;
First, they attempted to admit portions of the policies to solicit their expert’s opinion as to whether the officer’s actions conformed to the department policy. In particular, the use of force policy stated, “where force is warranted, officers should assess the incident and are to determine which technique or arrest will reasonably de-escalate the incident and bring it under control safely. Officers shall use only that force which is reasonable and necessary to effect lawful objectives.” The Court found to the extent that the first half of the policy requires an assessment of an officer’s choice between various techniques for de-escalation that this test is beyond the scope of the inquiries mandated by state and federal law. Under law, officers are required to use reasonable force. “The reasonableness standard does not require that officers use alternative less intrusive means… to rule otherwise would be evaluating the officer’s conduct from the 20/20 perspective of hindsight rather than from the perspective of an officer making split-second judgments on the scene.” The second half of the policy merely implicated the applicable legal standards.
The Court
noted that another reason to exclude the policy was the Supreme Court’s
recognition that local police regulations should not be a standard for
evaluating the constitutionality of police conduct, because to do so would
invalidate actions in jurisdictions with different practices. (citing Whren v.
Plaintiffs also sought to admit evidence regarding the department’s internal evaluation and response to Officer Sholtis’ conduct. The Chief followed the recommendation of internal affairs to discipline the officer for making an impermissible off-duty arrest, and for excessive force. A committee subsequently reversed his decision. The Court ruled that to admit this evidence would be confusing to the jury and require needless testimony.
The plaintiff also argued that because the officer’s expert testified repeatedly that he conformed to his training, the door was open to test the expert’s opinion on cross-examination regarding the department’s policies. Although the court initially agreed with this in the morning, by the afternoon it changed its mind and determined that the introduction of such evidence also presented a significant danger for jury confusion. In a footnote, the court recognized that the record did not show that the policies formed part of the officer’s training.
Finally, the plaintiffs sought to introduce evidence of other incidents including three other occasions where the officer allegedly arrested individuals without probable cause or used excessive force. The trial court granted the officer’s motion to preclude this evidence on the ground that it was both irrelevant and highly prejudicial. Plaintiffs’ argument was that the evidence was relevant to show the officer’s intent. Because the officer’s state of mind is irrelevant to both the false arrest and excessive force claims, which are determined on an objective standard, this evidence was properly excluded.
Dibella v. Borough of Beachwood 407 F.3d 599 (3rd
Cir. 2005)
An officer contended that while they were politically campaigning on public property, the plaintiffs were improperly approaching automobiles and their signs were blocking the views of motorists, causing a dangerous condition. The officer issued them summonses for trespass. Their convictions were reversed and all charges dismissed. The plaintiff’s claim that their political opponent pressured the chief to have them stop their campaigning. Their action for malicious prosecution under 42 U.S.C. Section 1983 resulted in the award of $78,237 in compensatory damages and $75,000 in punitive damages against Chief Wagner, and $20,000 against Officer Zuppa. After the jury verdict, the judge entered judgment for the defendant’s ruling that having to attend pretrial and trial hearings did not constitute a government seizure in a malicious prosecution action predicated on the Fourth Amendment.
The Appellate Court agreed citing Albright v. Oliver, 510 U.S. 266 (1994). The Supreme Court rejected Albright’s Section 1983 malicious prosecution claim based on the Fourteenth Amendment’s due process clause finding that the appropriate constitutional claim would be found under the Fourth Amendment. “Where a particular amendment provides an explicit textual source of a constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of substantive due process must be the guide for analyzing these claims.” at 813. In this case the plaintiffs were only issued summonses; they were never arrested, never posted bail, were free to travel, and did not have to report to pretrial services. Their liberty was restricted only during the trial and the Fourth Amendment does not extend beyond the period of pretrial restrictions.
Johnson v. Lindon City Corporation, 405 F.3d 1065 (10th Cir. 2005)
Defendant and off-duty sergeant, Michael Smith, had his mother-in-law temporarily living with him due to medical problems. When the mother-in-law froze the marital bank account, her husband came to the Smith house to question her. When he and his son arrived at the Smith residence to discuss the matter, Smith attempted to move them, which resulted in a fight. Sergeant Smith placed them under arrest and ordered them to wait until an on-duty sergeant arrived. The plaintiffs signed Pleas in Abeyance and executed statements admitting unlawful use of force to do bodily injury to Sergeant Smith and to assault. In exchange the state agreed to dismiss the charges as long as no laws were violated within the next six months. After six months, the plaintiffs sued for false arrest. The Court recognized the plaintiffs’ arguments that they had valid reasons for pleading; however, it found that for the plaintiffs to accept the benefits of the program and to sue for civil damages, would clearly undermine the integrity of the judicial system.
SEARCH & SEIZURE
Cummings v. City of
Responding
to a domestic disturbance,
In the criminal proceedings, Cummings pleaded no contest to a charge of misdemeanor assault on one of the officers. Cummings sued the officers for allegedly illegally seizing him, unlawfully entering his home and excessive force. The Appellate Court affirmed the District Court’s ruling that the excessive force claim was barred by Heck v. Humphrey. It did not agree that the other claims were barred by Heck.
It was
undisputed that the officers had no warrant to arrest Cummings or search his
residence when Cummings did not consent to the entry. The other issue was whether or not the
officers had exigent circumstances to enter the home. They claimed that when Cummings closed the
door on the officer’s foot, he was committing a felony assault, which justified
the officers entering the home to arrest him.
The Court did not agree. Citing
In contrast
to Warden v. Hayden Cummings did not commit a crime in a public place or
attempt to flee into his house and, contrary to Santana, he never fully exposed
himself to public view given that he opened the door very slightly and only
upon the request of the police. Further,
it is highly questionable whether Cummings’ act of closing the door on
Under Payton and Welsh the officers’ seizure of Cummings’ person and entry into his home, while unsupported by warrant, consent or exigent circumstances, the officers deprived Cummings of his constitutionally protected right to refuse entry into his home and to be free from an unreasonable seizure of his person.
Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005)
Deputy
Jacobs volunteered to respond to an incomplete 911 call. Upon his arrival at
Entry into the
Apartment
The
District Court found that there was a question of fact whether Deputy Shelnutt had announced his purpose before entering the
apartment. The Appellate Court
disagreed. A warrantless is permissible
when police have a reasonable belief that exigent circumstances require
immediate action and there is no time to secure a warrant. In this case it was objectively reasonable
for the officers to believe that a burglary was occurring and that people
inside the apartment were in danger. The
Court also noted that it had previously determined that a 911 call itself can
be enough to support a warrantless search under exigent circumstance exception,
particularly when the caller identifies himself.
“Knock and Announce”
Rule
The court
next considered the officers failure to comply with the “knock and announce”
rule. In order to justify a no-knock
entry, the police must have reasonable suspicion that knocking and announcing
their presence would be dangerous, futile or it would inhibit effective
investigation of a crime by allowing the destruction of evidence. Citing Richards v.
The Protective Sweep
Although the protective sweep has generally been justified for the search of accomplices, the primary purpose is to ensure officer and bystander safety. This purpose was deemed reasonably necessary in this case as the officers had reason to believe that they might be faced with an ongoing crime or an individual in danger. The three-minute sweep of the apartment to look for persons other than Mr. Leaf, even before they woke Mr. Leaf, was reasonable.
Illegal Seizure
The Supreme
Court found in
An officer with the Marijuana Eradication Team (MET) applied for a search warrant for the residence of the plaintiffs claiming that a citizen informant, had, on an unknown date, given him information that the plaintiffs were growing marijuana, at an unknown time. The affidavit further stated that the plaintiffs’ trash was searched resulting in the discovery of marijuana leaves and stems recently cut from a mature marijuana plant which was fresh, green and still moist, as well as marijuana seeds, hydroponic grow rock, two black one half gallon pots and rain drip “irrigation equipment”.
The plaintiffs claim that the affiant was untruthful and supported their claim with 13 affidavits from individuals whose trash was searched by MET and in each instance the officer made the same claims with regard to finding fresh marijuana leaves. In the instant case, plaintiffs claimed that the only thing in their garbage was paper towels with the remnants of smoked mar