A civil liability law publication for Law Enforcement

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

  • Digest Topics
    • Assault and Battery: Handcuffs
    • False Arrest/Imprisonment: Unlawful Detention
    • Federal Tort Claims Act
    • Firearms Related: Intentional Use (2 cases)
    • Firearms Related: Second Amendment Issues
    • Governmental Liability: Policy/Custom
    • Homeless Persons
    • Privacy
    • Search and Seizure: Home/Business
  • Resources
  • Cross References



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Assault and Battery: Handcuffs

     Officers responding to a report about an armed hostage situation arrested a suspect. In the course of making the arrest, they took him to the ground, struck him, and rendered him unconscious with a carotid restraint maneuver. While he was unconscious, they handcuffed his arms behind his back, zip-tied his legs together, and moved him into a seated position. He subsequently sued for excessive force, claiming among other things that when he gained consciousness, the officers resumed hitting him and placed him into a second carotid restraint, rendering him unconscious a second time, even though he was then handcuffed and otherwise restrained. A federal appeals court held that the officers acted reasonably under the circumstances, at least until the plaintiff was handcuffed and restrained. They were entitled to quailed immunity for their conduct until he was handcuffed and restrained, but not for their alleged conduct after that point.  McCoy v. Meyers, #17-3093, 2018 U.S. App. Lexis 8943 (10th Cir.).

False Arrest/Imprisonment: Unlawful Detention

Two men were arrested under outstanding warrants and were held in a county jail for 30 days or more before they were arraigned in court. New Mexico state law required that their arraignment take place within 15 days of their arrest. They sued for a federal civil rights due process violation on the basis of this. A federal appeals court upheld the dismissal of the lawsuit for failure to state a claim. A violation of a state law requirement, standing alone, was not a basis for a federal civil rights claim. Moya v. Garcia, #17-2037, 2018 U.S. App. Lexis 10306 (10th Cir.).


Federal Tort Claims Act

      A woman sued the U.S. government for false arrest and imprisonment by Customs and Border Protection (CBP) officers because the officers detained her after she presented them with an Employment Authorization Document (EAD), which she argued conclusively showed her right to remain in the United States. The lawsuit was filed under the Federal Tort Claims Act (FTCA). A federal appeals court ruled that the discretionary function exception to the FTCA applied in this case where the officers enforced a removal order. The court ruled that, what the plaintiff insisted was certain from the EAD and removed all discretion was, in reality, sufficiently uncertain as to leave discretion in the hands of the officers. Campos v. U.S., #16-61476, 2018 U.S. App. Lexis 10378 (5th Cir.).


Firearms Related: Intentional Use

A California deputy was entitled to qualified immunity for shooting and injuring a man who was holding a large knife when he answered the door to his residence when deputies responded to a 911 call. The plaintiff failed to identify any prior sufficiently analogous cases showing that under similar circumstances a clearly established Fourth Amendment right against the use of deadly force existed at the time of the shooting. Therefore, the appeals court panel affirmed the trial court’s ruling that the deputy was entitled to qualified immunity. Reese v. County of Sacramento, #16-16195, 2018 U.S. App. Lexis 10130 (9th Cir.).

A federal appeals court upheld summary judgment for an officer who shot and killed a motorist. Given the “tense and evolving” factual circumstances, the court held that the officer reasonably believed that the motorist posed a threat of serious harm. In this case, he fled the scene of a serious crime, drove recklessly and endangered others, refused to obey roughly thirty commands, and approached the officer on a narrow highway shoulder directly adjacent to speeding traffic. The fact that he ultimately proved to be unarmed did not alter the result. Because the plaintiff failed to demonstrate that the decedent’s Fourth Amendment rights were violated, her claims against the city and police chief for alleged failure to train and inadequate screening/hiring failed as well. Romero v. Grapevine, Texas, #17-10083, 2018 U.S. App. Lexis 10004 (5th Cir.).


Firearms Related: Second Amendment Issues

     A Massachusetts state statute constituting an absolute prohibition against civilian possession of stun guns violates the Second Amendment to the United States Constitution. The highest court in Massachusetts issued the ruling in a case in which  man was criminally charged with stun gun possession. The court overruled the trial court’s refusal to dismiss that charge and ordered that the motion be granted. Stun guns are “arms” within the protection of the Second Amendment and therefore may be regulated but not absolutely banned. Consequently, the absolute prohibition in state law that bars all civilians from possessing or carrying stun guns, even in their home, violates the Second Amendment, and the section of the law containing the prohibition in its current form is facially invalid. Ramirez v. Commonwealth, #SJC-12340, 479 Mass. 331, 2018 Mass. Lexis 237.


Governmental Liability: Policy/Custom

A federal appeals court upheld a trial court ruling that a city was not immune from a federal civil rights suit in a proposed class action claiming that the city’s policy or custom of automatically issuing arrest warrants was unconstitutional. In this case, the city automatically issues an arrest warrant whenever someone ticketed for violating its traffic and vehicle laws fails to pay a fine or appear in court. The court held that municipalities, unlike states, did not enjoy a constitutionally protected immunity from suit under the Eleventh Amendment. The court rejected the city’s argument that it enacted or maintained the contested practices as an arm of the state, as well as the city’s contention that it was also immune from suit since all of the individuals the complaint identified as participating in the contested practices were personally immune from suit. The court had long held that a municipality may be held liable for its unconstitutional policy or custom even when no official has been found personally liable for his conduct under the policy or custom. Webb v. City of Maplewood, #17-2381, 2018 U.S. App. Lexis 11748 (8th Cir.).


Homeless Persons

 ****Editor’s Case Alert****

A homeless man was living on the streets of Los Angeles, and caring for 20 birds when animal control officers showed up at his tent to investigate complaints about the animals. Officers found 18 pigeons, a crow, and a seagull in boxes and cages in his home on a sidewalk, all in various states of health. The city decided to seize all of the animals, giving the man 10 days to request a hearing to regain custody. But before that deadline was up, a city veterinarian euthanized all the pigeons, claiming they could’ve been carrying pathogens without ever testing their blood. The man sued the city, and his case was dismissed by a trial court. But a federal appeals court revived some his claims, saying his constitutional rights might’ve been violated. It upheld a grant of summary judgment on the Fourteenth Amendment due process claim against the officers and dismissal of the state law claims, but vacated the trial court’s grant of summary judgment on the Fourth Amendment claim challenging the seizure of the birds because there were genuine issues of material fact as to whether plaintiff’s healthy-looking birds posed any meaningful risk to the other birds or humans at the time they were seized. It further instructed the trial court to consider whether the officers were entitled to qualified immunity because any constitutional violation was not clearly established at the time it was committed.  Recchia v. Los Angeles Dept. of Animal Services, #13-57002, 2018 U.S. App. Lexis 11364 (9th Cir.). 


A former major league baseball player sued a county and other defendants after an audit revealed that officers from over 30 departments had accessed his driver’s license information more than 125 times. He claimed that this violated his rights under the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. 2721-25. Claims against all but two municipalities were not timely. A federal appeals court upheld the dismissal of the remaining claims because the plaintiff failed to plead sufficient facts to show that the defendants accessed his information for an impermissible purpose. Berenguer v. Anoka County, #16-4123, 2018 U.S. App. Lexis 11678 (8th Cir.).


Search and Seizure: Home/Business

****Editor’s Case Alert****

Officers interrupted what they reasonably believed to be a residential burglary and detained two suspects just outside of the house. A federal appeals court held that this gave them a basis to lawfully enter the house without a warrant, and without further suspicion of wrongdoing, to briefly search for additional perpetrators and potential victims. The suspected burglary presented an exigent circumstance that justified a warrantless entry and search. The officers in this case therefore did not violate the Fourth Amendment, and the appeals court reversed the trial court’s denial of summary judgment for the officers. Montanez v. Carvajal, #16-17639, 2018 U.S. App. Lexis 12146 (11th Cir.).




     Privacy: Protected Health Information and Use-of-Force Investigations by William P. Bozeman, M.D., Jason P. Stopyra, M.D., Patricia Corn, M.S.N., and J.T. Moser, FBI Law Enforcement Bulletin (April 17, 2018).




Cross References

Animal Control Issues – See also, Homeless Persons

Assault and Battery: Choke Holds – See also, Assault and Battery: Handcuffs

False Arrest/Imprisonment: No Warrant – See also, Federal Tort Claims Act

False Arrest/Imprisonment: Warrant – See also Governmental Liability: Policy/Custom

Property  – See also, Homeless Persons

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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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