Law Enforcement Liability Reporter – April 2018

//Law Enforcement Liability Reporter – April 2018

Law Enforcement Liability Reporter – April 2018

2018-04-13T09:51:34+00:00April 16th, 2018|Legal Updates|Comments Off on Law Enforcement Liability Reporter – April 2018

A civil liability law publication for Law Enforcement

ISSN 0271-5481 Cite this issue as: 2018 LR April

  • Assault and Battery: Handcuffs (2 cases)
  • Firearms Related: Intentional Use (4 cases)
  • Firearms Related: Second Amendment Issues
  • First Amendment
  • Search and Seizure: Home/Business
  • Search and Seizure: Search Warrant


  • Some of the case digests do not have a link to the full opinion.
  • Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
  • Access to cases linked to may require registration, which is free.

Assault and Battery: Handcuffs


Two officers saw a group near a high school, including known street gang members. The youths crossed the street after the assistant principal told them to leave. When school was over, they harassed pedestrians and flashed gang signs. The officer told them to leave the area, and they moved a block away, in front of a house, and continued their actions. The officers told them to disperse or be arrested. One boy rode his bike back to the school’s lawn. The officers decided to arrest him for trespassing. They could have issued a simple citation but believed that he would continue to loiter. They instructed him to get off his bike and put his hands behind his back.

     He cooperated, and they escorted him to their squad car where an officer’s handling caused his arm to break. In a federal civil rights lawsuit, the court granted the defendants summary judgment. A federal appeals court reversed in part. Viewed in the light most favorable to the plaintiff, the record established that he was fully cooperative when the officer moved his arm with enough force to break it, which does not support the conclusion that he was placing the plaintiff in handcuffs with objectively reasonable force. Avina v. Bohlen, #17-1902, 882 F.3d 674 (7th Cir. 2018).

     A school resource officer decided to handcuff an elementary student for fighting with another student three days before. A federal appeals court held that, under the totality of the circumstances, the officer’s actions were not objectively reasonable where the student was a ten-year-old girl who was sitting calmly and compliantly in a closed office surrounded by three adults and was answering questions about the incident. Although the officer used excessive force, the student’s right not to be handcuffed under the circumstances was not clearly established at the time of her seizure. Therefore, the officer was entitled to qualified immunity. The appeals court also held that there was insufficient evidence in the record for a reasonable jury to conclude that the officer acted maliciously or with gross negligence when she handcuffed the student. E.W. v. Dolgos#16-1608, 2018 U.S. App. Lexis 3245 (4th Cir.).


Firearms Related: Intentional Use

****Editor’s Case Alert****

A jury awarded over $37 million against a Maryland county to the family and estate of a woman killed in a standoff with police shooting incident. Her 5-year-old son was also shot twice and injured during the encounter. Attorneys for the county and an officer argued that the officer “reasonably feared he or others could have been injured or killed” by the woman, who was armed with a gun and pointed it at them when they arrived to serve arrest warrants on the woman and a man in the residence. She fired buckshot from the shotgun after one officer fired first. The county stated that it “is disappointed with the verdict and is reviewing all of its options, including an appeal.”

Damages awarded, all compensatory, included $32.85 million to the woman’s son and an additional $23,542 for his medical expenses, and $4.53 million to the woman’s daughter. It also awarded $307,000 to the woman’s mother, $300,000 to her father, and $300,000 to her estate. Maryland law caps damage awards against local governmental entities at around $1 million. Family and Estate of Korryn Gaines v. Baltimore County, Feb. 16, 2018, Circuit Court, Baltimore County, Maryland, reported in Huffington Post. Read the Complaint.

A 16-year-old boy and three companions tried to rob a pizza restaurant at gunpoint. An off-duty police officer who was there waiting for a pizza shot and killed the 16-year-old. Video recordings captured part of the incident, which involved a struggle for a gun. The 16-year-old’s participation in the struggle was disputed, and he was apparently crawling when he was shot. Wounds showing that three bullets entered his back, contradicting the officer’s claim that he shot as the boy advanced towards him. The trial court rejected, on summary judgment, claims by the decedent’s estate. A federal appeals court affirmed, concluding that the officer’s use of deadly force was reasonable and justified and did not violate the Fourth Amendment.

     The officer did not know that the boy was unarmed, and he was in close quarters with multiple, moving, potentially armed assailants, who forced him to make split‐second, life‐or‐death decisions. The incident lasted only about 45 seconds from the moment the first assailant entered the pizzeria to the moment the officer locked the door. It was objectively reasonable for the officer to stay inside the locked pizzeria awaiting help. It would be objectively unreasonable to demand that he venture into the night with an empty gun, risking further onslaught, to administer treatment to the injured boy, the court concluded.  Horton v. Pobjecky, #17-1757, 2018 U.S. App. Lexis 4885 (7th Cir.).

     After a man was shot 21 times by police and became paralyzed from his injuries, his guardian sued for excessive force. A federal appeals court dismissed the defendants’ appeal from the denial of summary judgment based on qualified immunity. The appeals court held that, while it had jurisdiction to determine whether conduct constituted a violation of clearly established law, it lacked jurisdiction to determine whether evidence could support a finding that a particular conduct occurred at all. In this case, whether the officers reasonably believed the man posed a sufficient threat depended on what occurred, and the trial court was unable to make this determination based on the evidence presented. Therefore, the court lacked jurisdiction to determine the key factual question about whether he advanced on the officer just before being shot. Raines v. Burningham, #16-4141, 2018 U.S. App. Lexis 5609 (8th Cir.).

A federal appeals court upheld a grant of summary judgment for the defendants in an action brought by the estate of a man who was shot and killed by a police officer. He was coming towards the officer with a hatchet when the officer shot him. The court held that a reasonable officer could have concluded, as the officer here did, that the law did not require him to wait until the hatchet was being swung toward him before firing in self-defense. Therefore, the trial court did not err in granting summary judgment as to the excessive force claim. Furthermore, the trial court did not err in granting summary judgment as to the false arrest claim and the officer was entitled to state agent immunity on all of the state law claims. Shaw v. City of Selma, #17-11694, 2018 U.S. App. Lexis 5732 (11th Cir.).

Firearms Related: Second Amendment Issues

Under a provision of a New York City licensing scheme (Rule 5-23), an individual with a “premises license” for a handgun may remove the handgun from the designated premises only for specified purposes. A federal appeals court ruled that this did not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment. The court applied intermediate scrutiny and held that the burdens imposed by the Rule did not substantially affect the exercise of core Second Amendment rights, and the Rule contributed to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposed on Second Amendment interests. New York State Rifle and Pistol Association v. City of New York, #15-638, 2018 U.S. App. Lexis 4513 (2nd Cir.).

First Amendment

A federal appeals court vacated the trial court’s grant of summary judgment for the defendants in an action challenging the plaintiffs’ exclusion from an enforcement zone set up around a Border Patrol checkpoint area near their homes in rural Arizona, where they wished to both monitor and protest Border Patrol activity. The trial court erroneously entered summary judgment before any discovery had occurred. The appeals court held that the limited record before the trial court did not permit it to conclude, as a matter of law, that the enforcement zone was a nonpublic forum or, if it was, that the government satisfied the requirements for excluding the plaintiffs from that nonpublic forum. On remand, and after appropriate discovery, the trial court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone was a public forum, and whether the government’s exclusion policy was permissible under First Amendment principles of forum analysis. Jacobson v. USDHS, #16-17199, 882 F.3d 878 (9th Cir. 2018).

Search and Seizure: Home/Business

A federal appeals court used a case to clarify its circuit’s emergency aid doctrine and bring it into line with U.S. Supreme Court precedent (See Michigan v. Fisher, #09-91, 558 U.S. 45, 47 (2009)). It held that police officers seeking to justify their warrantless entry into homes need only demonstrate an objectively reasonable basis for believing that a person within the house is in need of immediate aid. The court thereby modified its previous rulings in United States v. Martins, #04-1474, 413 F.3d 139 (1st Cir. 2005), and subsequent cases, clarifying that police officers need not establish that their belief approximated probable cause that such an emergency existed.

In this case, the trial court entered judgment for the defendant police officers and city, concluding that the officers did not commit a Fourth Amendment violation because their conduct fell within the emergency aid exception to the warrant requirement. The appeals court then affirmed on the basis that the officers were entitled to qualified immunity and no claim was stated against the city. Hill v. Walsh, #17-1669, 2018 U.S. App. Lexis 4814 (1st Cir.).

Search and Seizure: Search Warrant

Arriving at a home at 4 a.m. to execute a search warrant, 13 police officers wearing SWAT gear and face masks blew open the door of the home with a shotgun. The officers did not knock or announce their presence. The parents and their daughters were ordered to their knees at gunpoint, and the officers handcuffed a nephew who was present. The couple repeatedly asked to see the search warrant, but the officers refused to show it and did not allow the mother to sit with her seven-year-old daughter. Officers merely stated that they were searching for a “dangerous Russian,” who had evidently resided at the house more than a year before the search.

Officers found neither the suspect nor any contraband. The police department produced the underlying search warrant in response to the couple’s lawsuit complaint. The warrant described the home and listed controlled substances and items connected to narcotics trafficking as items to be seized. A federal appeals court upheld the denial of the officers’ motion for judgment on the pleadings based on qualified immunity. The complaint stated a plausible claim that the officers violated the plaintiffs’ clearly established Fourth Amendment rights by executing a search warrant on their home in an unreasonable manner. Greer v. City of Highland Park, #17-1281, 2018 U.S. App. Lexis 5330, 2018 Fed. App. 41P (6th Cir.).



Criminal Justice Reform: A Pound of Flesh: The Criminalization of Private Debt by the ACLU (2008).

Self-Driving Cars: Autonomous Vehicles: How Will They Challenge Law Enforcement? by Thomas J. Cowper, and Bernard H. Levin, FBI Law Enforcement Bulletin (Feb. 13, 2018).



Cross References

Assault and Battery: Physical – See also, Assault and Battery: Handcuffs (1st case)

Search and Seizure: Home/Business – See also, Search and Seizure: Search Warrant

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John Blackmon

A retired law enforcement officer who now serves as the President of the Fraternal Order of Police Tri-County Lodge #3.
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