A civil liability law publication for Law Enforcement

ISSN 0271-5481

Cite this issue as: 2018 LR December

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  • Digest Topics
    • Assault and Battery: Physical (2 cases)
    • False Arrest/Imprisonment: No Warrant
    • Firearms Related: Intentional Use
    • Firearms Related: Second Amendment Issues
    • Privacy
    • Public Protection: Motoring Public and Pedestrians
    • Search and Seizure: Home/Business (2 cases)
    • Sexual Assault
  • Resources
  •  Cross References


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Assault and Battery: Physical

A police officer was not entitled to qualified immunity on a drunk woman’s claim that he used excessive force on her during an arrest when a jury could find that a reasonable officer in his position would not have interpreted her actions as noncompliance and would have known that she posed neither a flight risk not an immediate threat to anyone’s safety. Indeed, being drunk and argumentative with another resident in a home one lives in is not a crime. It was clearly established that an officer could not forcefully take down a person who was a nonviolent, nonthreatening misdemeanant who was not actively resisting arrest or attempting to flee in the violent and uncontrolled manner of slamming her to the ground that this officer allegedly did. Karels v. Storz, #17-2527, 2018 U.S. App. Lexis 28917 (8th Cir.).

A man who had a fight with officers in the setting of acute methamphetamine intoxication died from a cardiac arrhythmia. The incident occurred as the officers responded to a domestic disturbance call and found the man attacking his girlfriend in a brutal manner. A federal appeals court upheld summary judgment for the defendants in an excessive force lawsuit brought by the decedent’s parents. The appeals court held that unsworn statements about the incident that paramedics had made to officers were properly excluded from evidence.  Iowa’s state false statement law did not “implicitly swear” a declarant making a statement to officers. There also was no genuine dispute of material fact that the decedent posed a threat to the safety of both the officers and girlfriend and no admissible evidence rebutting the officers’ version of the incident. Tasers in the dart mode were used during the incident and a Taser video indicated that one Taser malfunctioned. Zubrod v. Hoch, #17-1202, 2018 U.S. App. Lexis 29625 (8th Cir.).

False Arrest/Imprisonment: No Warrant

     Four officers responded to a call about a man “with a gun.” When they arrived at a building at 3:35 a.m., a man on the porch told them to go to the first floor apartment because “he’s in there.” 10 people were milling around in the apartment, and one told them “The man with the gun is in back. He pointed it at my face.” An officer saw a man who fled into a bedroom, slamming the door. After announcing their presence and knocking on the door, the officers entered the bedroom, and saw a man sitting on a mattress next to a woman. They found a gun on the bedroom floor, about two feet in front of the man. He filed a federal civil rights lawsuit for false arrest, excessive force, false imprisonment, and malicious prosecution. A federal appeals court upheld a verdict rejecting all these claims. The trial court acted within its discretion by denying jurors’ request for a copy of a potentially impeaching interrogatory answer by an officer as well as in refusing to modify its jury instruction on “possession” of a weapon to stress that “mere proximity” to a gun is insufficient. Lindsey v. Macias, #17-2963, 2018 U.S. App. Lexis 29843 (7th Cir.).

Firearms Related: Intentional Use

      In a prior decision, a federal appeals court ruled that allegations that two officers shot and severely injured a 17-year-old when he was holding a gun to his own head, and not pointing it at the officers as they claimed, if true, would constitute excessive force. Based on this dispute of material fact, a federal appeals court dismissed the appeal of the denial of qualified immunity on the excessive force claim for lack of jurisdiction. The appeals court also upheld the trial court’s refusal to dismiss a Fourteenth Amendment due process claim that after the incident an officer intentionally fabricated evidence to cover up his colleagues’ actions and get the teenager falsely charged with aggravated assault on the officers. Cole v. Hunter, #14-10228, 802 F.3d 752 (5th Cir. 2015).     On remand from the U.S. Supreme Court, Hunter v. Cole, #16-351,137 S. Ct. 497 (2016), the Fifth Circuit U.S. Court of Appeals considered the case in light of the Supreme Court’s decision inMullenix v. Luna. #14-1143, 136 S.Ct. 305 (2015) [In which the U.S. Supreme Court reversed a denial of qualified immunity to the trooper on an excessive force claim ruling that the trooper was entitled to qualified immunity because prior precedents did not indicate that it was “beyond debate” that he acted unreasonably,]. The appeals court upheld the trial court’s denial of two officers’ motion for summary judgment based on qualified immunity, and otherwise reinstated the court’s previous opinion in this case, and remanded for further proceedings. The court held that the trial court did not weigh the evidence and resolve the factual dispute over the shooting and that a jury should resolve what happened on that night. Cole v. Hunter, #14-10228, 905 F.3d 334 (5th Cir. 2018).

Firearms Related: Second Amendment Issues

A federal appeals court upheld a ruling that rejected claims that the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline, violates the Second Amendment, ruling that the statute bears a substantial relationship to important governmental interests, such as promoting public safety and crime prevention and did not offend the plaintiffs’ Second Amendment rights. The plaintiffs had sought and received licenses to carry firearms in public, but the licenses allowed them to carry firearms only in relation to certain specified activities, denying them the right to carry firearms more generally, including simply for general self-defense.

     “In the last analysis, the plaintiffs simply do not have the right ‘to carry arms for any sort of confrontation’ or ‘for whatever purpose’ they may choose,” the court stated. The core right protected by the Second Amendment was the right of “law-abiding, responsible citizens to use arms in defense of hearth and home,” but public carriage of firearms for self-defense “fell outside the perimeter of this core right.” Applying intermediate scrutiny, the court held, the restriction of the right to carry a firearm in public for self-defense withstood a Second Amendment challenge. Under the statute, a license to carry may be granted to those with “good reason to fear injury,” or for other reasons, such as sport or target practice. “The applicant must identify a specific need, that is, a need above and beyond a generalized desire to be safe.” Gould v. Morgan#17-2202, 2018 U.S. App. Lexis 31129 (1st Cir.).


****Editor’s Case Alert****

An IRS agent was not entitled to qualified immunity for allegedly violating a woman’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant for criminal tax fraud at the plaintiff’s home, he escorted her to the bathroom and monitored her while she relieved herself. Based on the scope, manner, justification, and place of the search, the court ruled held that a reasonable jury could conclude that the agent’s actions were unreasonable and violated the woman’s Fourth Amendment rights. The defendant’s general interests in preventing the destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into the woman’s most basic subject of privacy, her naked body. This right was clearly established and a reasonable officer in the agent’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. Ioane v. Hodges, #16-16089, 903 F.3d 929 (9th Cir. 2018). 

Public Protection: Motoring Public and Pedestrians

     A married couple were driving south on a highway. An officer on patrol was traveling in the same direction. The officer observed a traffic offense committed by a driver in the northbound lane, and he turned around to pursue that car, allegedly at speeds of over 100 miles-per-hour. Several people observed him driving recklessly. He lost control while negotiating a curve. His vehicle then spun around, crossed the centerline into southbound traffic, and crashed into the couple’s car, seriously injuring the husband and killing the wife. The officer later pled guilty to vehicular homicide, which requires proof beyond a reasonable doubt of reckless or grossly negligent driving, and reckless endangerment.

The husband, individually and as administrator of his wife’s estate, filed a federal civil rights lawsuit alleging a “state-created danger” theory of liability. A federal appeals court overturned the denial of the defendant’s motion for dismissal based on qualified immunity. It was not clearly established at the time of the incident that the officer’s conduct, as alleged in the complaint, could give rise to constitutional liability under the Fourteenth Amendment. The court stated, however, that it hoped to establish clear law with its opinion. Sauers v. Borough of Nesquehoning, #17-1591, 2018 U.S. App. Lexis 27890 (3rd Cir.).

Search and Seizure: Home/Business

     An officer’s confidential informant reported that he had bought heroin from a man named “Fred.” The warrant affidavit stated that the informant had bought heroin from Fred for a couple of months, Fred sold heroin from a particular home’s basement, and the informant had bought heroin from Fred that day and saw Fred with over 100 baggies of heroin. The officer showed Doe a photo of the Edwards home, which he confirmed was the location. The officer drove the informant to the location, where he confirmed that identification. The officer used a database to obtain a photograph of Freddy Sutton, who Doe identified as “Fred.” The officer’s supervisor and an assistant state’s attorney approved the warrant application. Aware of the informant’s criminal history, the judge questioned him under oath and issued the search warrant.

Officers carried out the search four days later. Edwards and his daughter were outside and prevented from entering their home during the search, which took about two hours and uncovered no illegal drugs and did not find the suspect present. There was minor property damage. The Edwardses sued, challenging the legality of the search. A federal appeals court upheld the dismissal of a municipal liability claim against the city because the plaintiffs did not plausibly allege the existence of any city policy or practice permitting searches without probable cause. Summary judgment was also granted to the defendant officers, as the warrant was supported by probable cause. The officers were additionally entitled to qualified immunity based on their reasonable reliance on the warrant. Edwards . Jolliff-Blake, #17-1848, 2018 U.S. App. Lexis 3101  (7th Cir.).

A state patrol officer was entitled to qualified immunity on a woman’s claim that his entry into her home without a warrant and under false pretenses while investigating possible fraud in her application for Social Security disability benefits violated her Fourth Amendment right to be free from unreasonable searches and seizures. He entered by requesting her assistance on a fictional criminal investigation. While the entry into the plaintiff’s home during the course of a civil fraud investigation was an unreasonable search under the Fourth Amendment, he was entitled to qualified immunity because the right to be free from a search in the context of a civil or administrative investigation related to a determination of benefits was not clearly established at the time. Whalen v. McMullen, #17-35267, 2018 U.S. App. Lexis 30686 (9th Cir.).

Sexual Assault

A sheriff’s deputy, who was in uniform and carrying a gun, responded to a husband’s call reporting a domestic disturbance with his wife. The deputy, upon arrival, ordered the wife to leave and go to her other house. She replied that she could not go there because an electrical panel had been dismantled. He took her to that house and turned on the electricity for her and appeared to leave. A few minutes later, however, she found him standing naked in the house. He then allegedly attacked her sexually and threatened to make her “life difficult” if she reported this. She filed negligence claims against the sheriff and intentional tort and civil rights claims against the deputy.

The district court granted the sheriff summary judgment on the vicarious liability claim and on the plaintiff’s negligent hiring, training, and retention claim because he presented no evidence that the sheriff knew of the necessity of exerting control to prevent the deputy’s sexual misconduct. On the claims against the deputy, the jury awarded $100,000 in compensatory damages, $275,000 in punitive damages, and attorneys’ fees and costs of $97,267.80. A federal appeals court reversed on the vicarious liability claims against the sheriff and upheld the rejection of the negligent hiring claim. The deputy, the court stated, exploited “unique institutional prerogatives of his police employment.” Whether his employment gave rise to an abuse of that power was a question of fact for the jury to decide. Zander v. Orlich, #17-2792, 2018 U.S. App. Lexis 30648 (7th Cir.).


Qualified Immunity: Is Qualified Immunity Unlawful?, by William Baude, 106 Calif. L. Rev. 45 (2018).

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