Law Enforcement Liability Reporter – December 2017

//Law Enforcement Liability Reporter – December 2017

Law Enforcement Liability Reporter – December 2017

2017-12-21T08:58:57+00:00December 21st, 2017|Legal Updates|Comments Off on Law Enforcement Liability Reporter – December 2017

A civil liability law publication for Law Enforcement

ISSN 0271-5481

Cite this issue as: 2017 LR December

CONTENTS

Digest Topics

Assault and Battery: Pepper Spray

False Arrest/Imprisonment: No Warrant

Federal Tort Claims Act

Firearms Related: Intentional Use (2 cases)

Firearms Related: Second Amendment

First Amendment

Malicious Prosecution

Search and Seizure: Search Warrant

Sexual Assault and Abuse

 

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.

Assault and Battery: Pepper Spray

     A federal appeals court held that a trial court erred in submitting to a jury the question of whether officers violated clearly established law in allegedly using excessive force during a May Day protest. The question of whether a particular constitutional right is “clearly established,” as part of the qualified immunity analysis, is to be decided by the judge. Additionally, as to claims against one officer who used pepper spray against a demonstrator, the trial court properly denied his motion for judgment as a matter of law on the basis of qualified immunity, as there was evidence from which a jury could have reasonably decided that this use of force was retaliatory. Morales v. Fry, #14-35944, 873 F.3d 817 (9th Cir. 2017).

False Arrest/Imprisonment: No Warrant

     A man was arrested and charged in connection with a bar fight that resulted in one dead victim and one badly injured one. He was acquitted and sued for false arrest and malicious prosecution. A federal appeals court found that summary judgment for the defendants on these claims was premature when disputed questions of material fact remained regarding key aspects of the criminal investigation and subsequent prosecution. The police arrested him based on little more than a witness’s statement that he wore a similar shirt to that of one of the attackers. He raised a question of material fact as to whether prosecutors and the grand jury were aware of the limited nature of the identification and the highly suggestive manner of the lineup in which he was the only suspect wearing a maroon sweatshirt. Dufort v. City of New York, #16-1715, 2017 U.S. App. Lexis 21322 (2nd Cir.).

Federal Tort Claims Act

     A woman claimed that the Federal Bureau of Investigation (FBI) negligently supervised the use of its surveillance equipment to keep tabs on her by her then-husband, an FBI agent. A federal appeals court upheld the dismissal of her lawsuit against the U.S. government under the Federal Tort Claims Act (FTCA), holding that because the plaintiff did not plead sufficient specific facts to show that the challenged conduct in supervising did not involve a discretionary function she was not entitled to the FTCA’s waiver of sovereign immunity. Gordo-Gonzalez v. U.S., #16-2276, 873 F.3d 32 (1st Cir. 2017).

Firearms Related: Intentional Use

    A sheriff was improperly granted qualified immunity in a lawsuit claiming that he used excessive force when he shot and killed an unarmed man. The sheriff’s credibility or the accuracy of his disputed version of the facts (that he reasonably believed the man was armed and posed a threat) was a central question that had to be answered by a jury. The appeals court also reversed the grant of summary judgment on the plaintiffs’ wrongful death claim under Arizona state law, because there was a material dispute of facts as to the use of reasonable deadly force. Longoria v. Pinal County, #16-15606, 873 F.3d 699 (9th Cir. 2017).

****Editor’s Case Alert****

A police officer fired nine rounds at a man after witnessing him stab a fellow officer in the arms with a knife and run away. Police video footage showed that after the man fell to the ground, the officer ran towards the body and fired nine more rounds from a distance of about four feet. While he was still moving on the ground in a fetal position, the officer stomped on his head three times. A federal appeals court held that the officer did not violate the Fourteenth Amendment by emptying his weapon at the decedent. However, the head stomps were different because a jury could reasonably find that the officer knew or easily could have determined that he had already rendered the man harmless. If so, a reasonable jury could also conclude that he was acting out of anger or emotion rather than any legitimate law enforcement purpose. Zion v. County of Orange, #15-56705, 2017 U.S. App. Lexis 21802 (9th Cir.).

Firearms Related: Second Amendment

     A federal appeals court upheld the dismissal of a federal civil rights lawsuit against a county claiming that it violated the Second Amendment rights of a businessman and his potential customers when it denied his application for conditional use permits to open a gun shop. The court held that a textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. The plaintiff failed to plausibly allege that the county’s ordinance impeded any resident of the county who wishes to purchase a firearm from doing so, and thus he failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. The court ruled that he could not state a Second Amendment claim based solely on the ordinance’s restriction on his ability to sell firearms. Teixeira v. County of Alameda, #13-17132, 873 F.3d 670 (9th Cir. en banc 2017).

First Amendment

     A man was arrested for failing to confine his leafleting to an area designated for protest activities as set forth in a protocol formulated by the city’s legal department. He sued, challenging the constitutionality of the protocol, which had earlier been upheld in Ross v. Early, #12-2547, 746 F.3d 546 (4th Cir. 2014). The trial court dismissed the complaint because the court had already considered the constitutional claim in Ross. The appeals court vacated, holding that, in Ross, the parties entered into a stipulation that dictated the level of constitutional scrutiny, but the parties to the immediate case did not. Furthermore, the trial court in the immediate case did not consider an intervening relevant First Amendment U.S. Supreme Court decision, McCullen v. Coakley, #12-1168, 134 S. Ct. 2518 (2014), and did not have the benefit of another, Reed v. Town of Gilbert, #13-502, 135 S. Ct. 2218 (2015). Accordingly, the appeals court ordered further proceedings. Lucero v. Early, #16-1767, 873 F.3d 466 (4th Cir. 2017).

Malicious Prosecution

     A former employee of the Pennsylvania state legislature sued various current and former state officials, including a former Attorney General who later became Governor, claiming that they were involved in his malicious prosecution in bringing criminal charges against him. He was one of nine staff members arrested after the “Computergate” investigation, which involved receiving bonuses for campaign-related work performed on state time. He was charged with intentionally hindering an investigation “by concealing or destroying evidence of a crime.” The charges were subsequently dismissed. A federal appeals court overturned the trial court’s denial of the defendants’ motion for judgment on the pleadings. There was probable cause to initiate those criminal proceedings based on the information known at the time, so the plaintiff could not establish a prima facie case of malicious prosecution, regardless of the result in the criminal case. Zimmerman v. Corbett, #16-3384, 873 F.3d 414 (3rd Cir. 2017).

Search and Seizure: Search Warrant

     A plaintiff failed to plead a plausible Fourth Amendment claim of unreasonable search and seizure of an investment fund’s office for evidence of insider trading against federal law enforcement authorities because a corrected search warrant affidavit supported both probable cause for and the scope of the challenged search. He failed to plead a plausible Fifth Amendment claim that fabricated evidence (in the search warrant affidavit) deprived him of property without due process because the warrant would have issued on a corrected affidavit and thus any deprivation of the seized property was not the result of the fabricated evidence. The plaintiff also failed to plead any clearly established right to have federal officials state in a search warrant affidavit whether each mentioned person is or is not then a target of investigation, nor a right to have federal officials so state after the fact if the search becomes public knowledge; and he failed to plead sufficient facts as to the supervisor defendants’ personal involvement in the submission of any misstatements to the magistrate judge. Ganek v. Leibowitz, #16-1463, 874 F.3d 73 (2nd Cir. 2017).

Sexual Assault and Abuse

     The plaintiffs, who were former participants in a county drug court, sued the county and other defendants, claiming that a former sheriff’s department lieutenant violated their substantive due process rights by committing repeated acts of sexual abuse against them while serving as the monitor (“tracker”) of drug court participants. Upholding the denial of the county’s post-verdict motion, a federal appeals court ruled that there was sufficient evidence to support the jury’s finding that the county was deliberately indifferent to the obvious risk that its failure to supervise the lieutenant would result in the violation of the plaintiffs’ rights. A total of $2,250,000 in damages were awarded to four plaintiffs. S.M. v. Lincoln County, Missouri, #16-3451, 2017 U.S. App. Lexis 21316 (8th Cir.).

 

 

Resources

     Domestic Violence: Criminal Protective Orders as a Critical Strategy to Reduce Domestic Violence, by Tami P. Sullivan, Carolina E. Price, Nicole H. Weiss, and Nicole E. Pugh (NCJ 250664, March 2017).

 

Sex Crimes Against Children: Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013, by William Adams and Abigail Flynn (NCJ 250746, Oct. 12, 2017).

Reference:

 

Cross References

First Amendment – See also, Assault and Battery: Pepper Spray

Governmental Liability: Inadequate Supervision – See also, Sexual Assault and Abuse

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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