A civil liability law publication for Law Enforcement

ISSN 0271-5481

Cite this issue as 2018 LR November


  • Digest Topics
    • Assault and Battery: Physical (2 cases)
    • Electronic Control Weapons: Dart and Stun Modes
    • False Arrest/Imprisonment: No Warrant
    • Firearms Related
    • First Amendment (2 cases)
    • Homeless Persons
    • Search and Seizure: Home/Business (2 cases)
  • Resources
  • Cross References


  • 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: Physical

     A motorist was involved in a single-car accident while intoxicated. During his arrest, he was allegedly kicked in the face, breaking his eye socket. Two police officers and two state troopers involved in the arrest, as well as their employers, acknowledged that one officer kicked him. Each of the four law enforcement personnel involved in the incident asserted that he neither inflicted the injury nor saw who did so. The plaintiff, since his face was pinned to the pavement when the kick occurred, could not identify his alleged assailant. Because a defendant must have “personal involvement” in the alleged wrongs, the trial court ruled that the plaintiff’s inability to identify his attacker defeated his claims, and therefore granted the defendants summary judgment.

A federal appeals court upheld the ruling as to an excessive force claim but reversed as to a conspiracy claim. Despite the unfortunate situation created for plaintiffs who are unable to identify their attackers through no fault of their own, a plaintiff alleging that one or more officers engaged in unconstitutional conduct must nevertheless establish the “personal involvement” of each named defendant to survive summary judgment. Despite this, however, where a plaintiff presents sufficient evidence of an after-the-fact conspiracy to cover up misconduct, even of an unidentified officer, he may be able to state a claim for the violation of the due process right of access to the courts. Jutrowski v. Township of Riverdale, #17-2594, 2018 U.S. App. Lexis 25806 (3rd Cir.).

     A police officer remained on top of an arrestee after he was handcuffed following a chase and takedown. The arrestee repeatedly stated that he could not breathe, even after the officer shifted his weight. A radio transmission from the officer at the time was recorded and the arrestee can be heard complaining about an inability to breathe. The arrestee, a 22-year-old African American man in good physical shape, went limp when the officers lifted him up. He then began sweating and breathing heavily and, when he regained consciousness, would complain of being unable to breathe. Officers did not call for help until several minutes after he was discovered to have no pulse and to have stopped breathing. He apparently died in the squad car and left three children. The cause of death was disputed.

     The arrestee’s estate sued under 42 U.S.C. 1983. The trial court denied a defense motion for summary judgment of qualified immunity. A federal appeals court remanded for an individual analysis of each officer’s claim of qualified immunity. The court noted material issues of fact concerning whether the officers were on notice of the arrestee’s serious medical condition. Each officer had a different degree of contact with the decedent and had different assigned responsibilities with respect to his apprehension and investigation of the alleged armed robbery he was suspected of.  Estate of Williams v. Cline, #17-2603, 2018 U.S. App. Lexis 24836 (7th Cir.).


Electronic Control Weapons: Dart and Stun Modes

     A male motorist was experiencing an episode of diabetic shock when he lost control of his car, came to a stop at an interstate median, and was subjected to a Taser three times in dart mode and once in stun mode in rapid succession by an officer as he attempted to comply with the officer’s orders to get out of his vehicle. He sued the officer and the city for excessive force. A federal appeals court upheld the trial court’s denial of the defendants’ motions to dismiss, holding that the officer was not entitled to qualified immunity at this stage of the case, as at the time of the incident it was clearly established that the repeated use of the Taser on someone who has ceased resisting (at least after the first application of the Taser) and is attempting to comply is unlawful. The court also held that the plaintiff, for purposes of summary judgment, established a constitutional violation. Therefore, the trial court properly denied the city’s motion for summary judgment.  Glasscox v. City of Argo, #16-16804, 2018 U.S. App. Lexis 25839 (11th Cir.).

False Arrest/Imprisonment: No Warrant

     A federal appeals court found that the summary arrest, handcuffing, and police transport to the police station of a number of middle school girls was a disproportionate response to the school’s need, which was dissipation of what the school officials characterized as an “ongoing feud” and “continuous argument” between the students. The appeals court upheld the trial court’s denial of summary judgment to the defendants based on qualified immunity and grant of summary judgment for the students in an action alleging that a sheriff’s deputy arrested the students on campus without probable cause in violation of their Fourth Amendment rights and state law. In this case, the deputy was invited to speak to a group of girls in school about bullying and fighting. When the girls were unresponsive and disrespectful, the deputy arrested the girls.

The appeals court applied the two-part reasonableness test set forth in New Jersey v. T.L.O., #83-712, 469 U.S. 325 (1985), holding that the arrests were unreasonable because they were not justified at their inception nor reasonably related in scope to the circumstances.  Officers were not entitled to qualified immunity because no reasonable officer could have reasonably believed that the law authorized the arrest of a group of middle schoolers in order to teach them a lesson or to prove a point, and the evidence was insufficient to create probable cause to arrest the students for violating state statutes, and therefore the plaintiffs were also entitled to summary judgment on their state false arrest claim. Scott v. County of San Bernardino, #16-55518, 2018 U.S. App. Lexis 25568 (9th Cir.).

Firearms Related

The family of a man shot and killed by a police officer sued for excessive use of force because he was unarmed at the time. A federal appeals court reversed the trial court’s denial of qualified immunity to the officer. Given the officer’s knowledge that the suspect had a reputation for being aggressive and violent towards law enforcement personnel in the small town, it was reasonable to believe that he posed an immediate threat of serious physical harm to him, despite the fact that the officer could see that the suspect’s hands were empty and the later-discovered fact that he was unarmed. Under the circumstances, a reasonable officer on the scene would have viewed the suspect’s “indisputably aggressive approach” as a prelude to a physical altercation, and the officer was required to make a split-second decision in an unpredictable and dangerous circumstance. Wenzel v. Storm, #17-2028, 2018 U.S. App. Lexis 28464 (8th Cir.).

First Amendment

The two plaintiffs were both stopped and searched by federal border patrol officers as they took photographs of activities at U.S. ports of entry on the United States–Mexico border. Their photos were seized and destroyed. They sued, claiming that this violated their First Amendment rights. Overturning the dismissal of the lawsuit, a federal appeals court concluded that the First Amendment protected the right to photograph and record matters of public interest, and whether a place was “public” depended on the nature of the location. The trial court’s ruling that the border patrol’s policies were the least restrictive means of serving a compelling government interest was “conclusory and insufficient,” and it was the government’s burden to prove that the specific restrictions were the least restrictive means available. The appeals court ruled  that the plaintiffs had adequately pleaded their claims and that further factual development was required before the trial court could determine what restrictions, if any, the government may impose in these public, outdoor areas where the photos were taken. Askins v. U.S. Department of Homeland Security, #16-55719, 899 F.3d 1035 (9th Cir. 2018).

A federal appeals court held that the outdoor food sharing of vegetarian and vegan food hosted by a non-profit organization, including to homeless persons, was expressive conduct protected by the First Amendment, and therefore, the trial court erred in granting summary judgment in favor of the City of Fort Lauderdale on a lawsuit challenging an ordinance enacted by the city that restricted this food sharing. In 2014, the city enacted an ordinance that restricted the plaintiff’s weekly food sharing at a city public park. In its complaint, the plaintiff argued that the ordinance, enacted in 2014, and a related park rule violated their First Amendment free speech and free association rights and were unconstitutionally vague. The trial court disagreed, concluding that the outdoor food sharing was not constitutionally-protected expressive conduct and that the ordinance and park rule were not vague. The court reversed after examining the nature of the food sharing activity, combined with the factual context and environment in which the activity was undertaken, holding that the plaintiff engaged in a form of protected expression, expressing its message against war and for the relief of hunger. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, #16-16808, 2018 U.S. App. Lexis 23562 (11th Cir.).

Homeless Persons

****Editor’s Case Alert****

Current and recently homeless persons sued a city seeking relief for their prior citations under a Camping Ordinance and Disorderly Conduct Ordinance. A federal appeals court held that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. The court also held that two of the plaintiffs may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. These two plaintiffs demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to the city’s homeless shelters. Martin v. City of Boise, #15-35845, 2018 U.S. App. Lexis 25032 (9th Cir.).

Editor’s Note: For a discussion of other recent developments in this area, see Police Interaction with Homeless Persons: An Update on Recent Developments, 2018 (9) AELE Mo. L. J. 101.

Search and Seizure: Home/Business

****Editor’s Case Alert****

On remand from the United States Supreme Court, in a case in which the Court rejected the “provocation” doctrine of the Ninth Circuit finding liability for an otherwise justified shooting found to have been provoked by an illegal entry, the Ninth Circuit held that the unlawful entry into a residence by two sheriff’s deputies, without a warrant, consent, or exigent circumstances, was the proximate cause of the subsequent shooting and injuries to plaintiffs. Therefore, the appeals court panel permitted the federal claim under 42 U.S.C. 1983 despite the U.S. Supreme Court’s ruling.

     The appeals court panel ruled that if an officer has a duty not to enter in part because he or she might misperceive a victim’s innocent acts as a threat and respond with deadly force, then the victim’s innocent acts cannot be a superseding cause. In this case, the victim’s action of moving the gun so that it was pointed in the deputies’ direction was not a superseding cause of the plaintiffs’ injuries. The panel also held that plaintiffs had an independent basis for recovery under California negligence law in light of Hayes v. County of San Diego, #S193997, 57 Cal. 4th 622, 305 P.3d 252 (2013). On remand, the panel noted that the judgment shall be amended to award all damages arising from the shooting in the plaintiff’s favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant. Judgment will also be entered for the plaintiffs on the California negligence claim for the same damages arising out of the shooting. Mendez v. County of Los Angeles, #13-56686, 897 F.3d 1067 (9th Cir.2018).

     Editor’s Note: For a discussion of the prior U.S. Supreme Court decision in the above case, County of Los Angeles v. Mendez, #16-369, 137 S. Ct. 1539, 198 L. Ed. 2d 52, 2017 U.S. Lexis 3396, see U.S. Supreme Court Rejects the Ninth Circuit’s Provocation Doctrine on Officer Shootings, 2017 (8) AELE Mo. L. J. 101.

      The plaintiffs’ home, located on a one-acre lot, was not visible to neighbors and displayed no-trespassing signs. The back of the home included a second story balcony accessible only from inside the dwelling and not visible from the front of the residence. Both a fence and trees blocked the view from nearby houses. A county’s Street Crime Reduction and Apprehension Program (SCRAP) unit received anonymous tips that the residents were growing marijuana and cooking methamphetamine on the premises. SCRAP had conducted a “knock and talk” a year earlier and given the plaintiffs a warning.       SCRAP officers went to the home and, following standard practice, surrounded it before knocking. Officers stood five-to-seven feet from the house and could see inside. One deputy knocked and spoke with one resident, who shut the door, remaining inside. Meanwhile, an officer in the back noticed marijuana plants growing on the balcony. A deputy opened the door, entered, and brought the residents outside to wait for a search warrant. The search found weapons, drugs, and drug paraphernalia. On appeal, the denial of their suppression motion was overturned and their convictions vacated.      After the dismissal of the charges, the plaintiffs filed a federal civil rights lawsuit. A federal appeals court reversed the dismissal as to the county and officials but affirmed that individual officers were entitled to qualified immunity. It is well-established that a warrantless entry of the area immediately surrounding the home is presumed unreasonable unless it meets an exception. SCRAP, following official policy, entered that constitutionally-protected area without a warrant and without satisfying any of the narrow exceptions, violating the Fourth Amendment. Because of then-existing Sixth Circuit Fourth Amendment law, however, it was not clearly established that SCRAP could not do what it did. County policy required officers to ignore Constitutional protection of the curtilage so claims could proceed against the county and county officials. Morgan v. Fairfield County, #17-4027, 2018 U.S. App. Lexis 25293 (6th Cir.).



     Homicide Investigation: Promising Strategies for Strengthening Homicide Investigations, report Bureau of Justice Assistance and Police Executive Research Forum (October 2018).

     Warrants: Enhanced Warrant Processing by Tim Wacker, FBI Law Enforcement Bulletin (Sept. 12, 2018).



Cross References

Firearms Related: Intentional Use – See also, Search and Seizure: Home/Business (1st case)

Homeless Persons – See also, First Amendment (2nd case)

U.S. Supreme Court Cases – See also, Search and Seizure: Home/Business (1st case)