Law Enforcement Liability Reporter – August 2018

//Law Enforcement Liability Reporter – August 2018

Law Enforcement Liability Reporter – August 2018

2018-08-09T11:11:10+00:00August 9th, 2018|Legal Updates|0 Comments

A civil liability law publication for Law Enforcement

ISSN 0271-5481 Cite this issue as: 2018 LR AugustClick here to view information on the editor of this publication.

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CONTENTS
  • Digest Topics
    • Electronic Control Weapons: Dart Mode
    • False Arrest/Imprisonment: Warrant
    • Firearms Related: Intentional Use (2 cases)
    • First Amendment (2 cases)
    • Privacy
    • Search and Seizure: Person
    • Sound Weapons
    • Towing
  • Resources 
  • Cross References

 

MONTHLY CASE DIGEST

  • 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 www.findlaw.com may require registration, which is free.

Electronic Control Weapons: Dart Mode

An officer was not entitled to qualified immunity on claims that he intentionally used his Taser in the dart mode without a warning after stopping an unarmed suspect for a nonviolent offense. This claim, if true, this would violate clearly established law. Thompson v. Monticello, #16-4080, 894 F.3d 993, 2018 U.S. App. Lexis 18477 (8th Cir.).

False Arrest/Imprisonment: Warrant

A woman was twice taken to precinct and held for a total of 18 hours over two days under a warrant in connection with a suspected stolen car. She sued for false arrest and imprisonment, claiming that the warrant, on its face, directed officers to bring her to court at a fixed date and time for a hearing to determine whether she should be detained as a material witness. She was never presented to the court. The trial court held that the defendants are entitled to qualified immunity and granted summary judgment in their favor. A federal appeals court vacated and remanded. With the facts taken in the light most favorable to the plaintiff, the defendants violated his clearly established Fourth Amendment rights and were not entitled to qualified immunity. Simon v. City of New York, #17-1281, 2018 U.S. App. Lexis 16744 (2d Cir.).

Firearms Related: Intentional Use

     A police officer was entitled to qualified immunity in an excessive force case on the basis of qualified immunity. The plaintiff was shot by the officer because he was suspected of breaking and entering and battery, and the officer was aware of these crimes before interacting with plaintiff. The plaintiff was standing about 20 feet from the officer holding a knife, inflicting harm on himself and stumbling, but not threatening others or making sudden movements. The plaintiff was then refusing to obey the officer’s repeated commands to drop the knife at the time he was shot. Wilson v. Prince George’s County, #17-1856.2018 U.S. App. Lexis 16292 (4th Cir.).

After their son was shot and killed by police, two parents sued for excessive force. The incident occurred when officers responded to a call about the decedent acting erratically while brandishing a pair of scissors. He eventually charged in the officers’ direction while holding the scissors above his head and the officers shot him.

A federal appeals court held that the facts were such that a reasonable jury could conclude that the decedent was not an immediate threat to the officers, but nonetheless the officers were entitled to qualified immunity because existing precedent did not clearly establish, beyond debate, that the officers acted unreasonably under the circumstances. Because a reasonable jury could find that officers violated the decedent’s Fourth Amendment rights, it was appropriate to remand the plaintiffs’ conspiracy claims and Monell municipal liability claims; and the defendants were not entitled to summary adjudication of the plaintiffs’ disabilities claims under the American with Disabilities Act and the Rehabilitation Act. Vos v. City of Newport Beach, #16-56791, 892 F.3d 1024 (9th Cir. 2018).

 

First Amendment

****Editor’s Case Alert****

After a man towed his floating home into a city owned marina, he became a critic of the city’s plan to seize waterfront homes for private development. He sued to try to block the plan. He alleged that city officials devised an official plan to intimidate him.

A police officer handcuffed him carried him out from a city council meeting that he was trying to address. The arrest was allegedly for violating the council’s rules of procedure by discussing issues unrelated to the city and refusing to leave the podium. The prosecutor determined that there was probable cause for his arrest, but dismissed the charges. In a lawsuit under 42 U.S.C. 1983, the trial court instructed the jury that, for the plaintiff to prevail on his retaliatory arrest claim, he had to prove that the officer was motivated by impermissible animus against his protected speech and lacked probable cause to make the arrest.

     A federal appeals court upheld a judgment for the city. The U.S. Supreme Court vacated. The existence of probable cause did not bar the plaintiff’s First Amendment retaliation claim because his case, is “far afield from the typical retaliatory arrest claim.” He still must prove the existence and enforcement of an official policy motivated by retaliation which is unlike an on-the-spot decision by an individual officer. The Court noted that the plaintiff alleges that the city deprived him of the right to petition, “one of the most precious of the liberties safeguarded by the Bill of Rights.” Lozman v. Riviera Beach, #17-2,1, 2018 U.S. Lexis 3691.

     A woman sued police officers, as well as a current and past mayor after the officers visited her apartment to investigate a noise complaint, gained warrantless entry, and proceeded to engage in abuse. They then cited her for disorderly conduct and interfering with law enforcement. She claims that at one point she knelt and began to pray but an officer ordered her to stop and another officer refused to investigate her complaint that she had been assaulted by residents of her apartment complex and threatened to issue a citation if she reported this to another police department; that the police chief failed to investigate the officers’ conduct; and that the mayors were aware of unlawful conduct by police officers.

She asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The U.S. Supreme Court noted that the First Amendment protects the right to pray but there are circumstances in which an officer may lawfully prevent a person from praying. Here, the officer’s order to stop praying allegedly occurred during the course of investigative conduct. That implicates Fourth Amendment rights; the First and Fourth Amendment issues were “inextricable.” It was unclear whether the officers were in the woman’s apartment based on her consent or had some other ground consistent with the Fourth Amendment, or whether their entry or continued presence was unlawful. Her complaint did not state what the officers wanted her to do when she was allegedly told to stop praying. Without these answers, it was impossible to analyze the free exercise claim. The issue of qualified immunity demanded consideration of the ground on which the officers were present and any legitimate law enforcement interests that might have justified an order to stop praying. Sause v. Bauer, #17-742, 2018 U.S. Lexis 4037.

 

Privacy

     A female motorist sued a female police officer, several other officers, various officials and a city for alleged unauthorized access to her driver’s license information in violation of the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. 2721-25. A federal appeals court upheld the dismissal of the claims. Claims against the female officer were untimely under the statute of limitations. Municipal liability claims against the city were not established because she failed to allege sufficient facts supporting an inference that the city knowingly allowed the officer to access the database for any reason other than her official duties; and plaintiff failed to preserve any vicarious liability claim.  Loeffler v. City of Duluth, #17-1377, 2018 U.S. App. Lexis 17825 (8th Cir.).

 

 Search and Seizure: Person

     An assistant principal ordered a mass, suspicionless strip search of twenty-two female students in the sixth grade choir after $50 went missing. The searches were carried out by the school nurse.  A federal appeals court ruled that the complaint alleged a claim for municipal liability where the students were searched in violation of their Fourth Amendment rights. The plaintiffs adequately alleged an official municipal policy on which section 1983 liability may rest where the school district failed to train its employees about their legal duties not to conduct unreasonable searches.  Littell v. Houston Independent School District, #16-20717, 2018 U.S. App. Lexis 17659 (5th Cir.).

 

Sound Weapons

      Demonstrators claimed that police officers used excessive force against them by using a long-range acoustic device (LRAD or sound gun) to disperse non-violent protesters. Upholding a denial of qualified immunity to the defendants, a federal appeals court held that purposefully using a LRAD in a manner capable of causing serious injury to move non‐violent protesters to the sidewalks violated the Fourteenth Amendment under clearly established law. Edrei v. Bratton, #17-2065, 892 F.3d 525 (2d Cir. 2018).

 

Towing

A city police chief revoked a towing permit for a state licensed towing company, based on information received from a competing towing company that the state licenses had lapsed. In a federal civil rights lawsuit filed by the revoked towing company, the appeals court upheld the trial court’s dismissal of the plaintiff’s 42 U.S.C. 1983 and related state-law claims against the city and the police department. The revocation was based on a complaint by a competing tow company that the plaintiff’s state-issued licenses had lapsed, and this could be acted on. Rountree v. Dyson, #17-30443, 892 F.3d 681 (5th Cir. 2018).

 

Resources

Police Militarization: Police Militarization in a Democratic Society by Jay Fortenbery, FBI Law Enforcement Bulletin (June 13, 2018).

Reference:

 

Cross References

Assault and Battery: Physical – See also, Sound Weapons

Disability Discrimination — See also, Firearms Related: Intentional Use (2nd case)

School Security – See also, Search and Seizure: Person

U.S. Supreme Court Cases – See also, First Amendment (both cases)

 

 

 

 

 

 

 

 

 

 

 

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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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