Law Enforcement Liability Reporter – Sept 2016

//Law Enforcement Liability Reporter – Sept 2016

Law Enforcement Liability Reporter – Sept 2016

2016-10-21T10:42:53+00:00 September 6th, 2016|Legal Updates|Comments Off on Law Enforcement Liability Reporter – Sept 2016

A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2016 LR September
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CONTENTS

Digest Topics
Assault and Battery: Physical
Dogs
Electronic Control Weapons
Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence
False Arrest/Imprisonment: Unlawful Detention
Firearms Related: Intentional Use
Firearms Related: Second Amendment
Indemnification
Malicious Prosecution
Privacy

Resources
Cross References
MONTHLY CASE DIGEST
 

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Assault and Battery: Physical

     A courtroom marshal was not entitled to absolute immunity on excessive force claims by two bail enforcement agents removed from a court room at a judge’s request. He was not performing a judicial function, and allegedly used force in excess of what the judge commanded and the Constitution allows. He was, however, entitled to qualified immunity from liability, since there was then “chaos” in the court room and undisputed evidence that at least one of the two plaintiffs was intent on disobeying the court’s instructions. It was not “beyond debate” that the marshal used an unreasonable level of force. Brooks v. Clark County, #14-16424, 2016 U.S. App. Lexis 12510 (9th Cir.).

Dogs

****Editor’s Case Alert****

     A couple claimed that a deputy violated their Fourth and Fourteenth Amendment rights by making a warrantless entry onto their property with the intention of killing their two pet dogs. They also alleged that the deputy and a fellow officer both shot at the dogs even though they were not acting aggressively, killing one and missing the other. The deputies then allegedly moved the body of the dead dog to try to cover-up the fact that she had been shot on the couple’s property. If the facts were as alleged by the plaintiffs, the defendant deputy was not entitled to qualified immunity. Mayfield v. Bethards, #15-3074, 2016 U.S. App. Lexis 11096 (10th Cir.).

Electronic Control Weapons

     A motorist claimed that he feared for his life when he was approached by an unmarked car with tinted windows. He fled onto an expressway and officers allegedly chased him, firing guns, and rammed their cars into his, causing him to crash his vehicle. He claimed that he was then shot by “6 different stun guns,” resulting in him being put in the critical condition, suffering numerous injuries. Because he was incarcerated when he filed the lawsuit, the trial judge screened the complaint under 28 U.S.C. 1915A, and found that the allegations were insufficient to state claims against the only defendants, Chicago and its police superintendent in his official capacity. The judge further found that it was “painfully obvious” that the complaint had “omitted critical facts,” referring to newspaper accounts of the arrest, and dismissing the lawsuit as frivolous. Reversing, a federal appeals court ruled that objectively, at least one part of the complaint was legally viable: his allegation that he was shot by multiple stun guns. “Nothing in the complaint says that this happened during the car chase. A reasonable inference is that it happened afterward.” And nothing in the complaint said whether he was subdued, passively resisting, or actively resisting at the time. “Discovery may reveal,” the court stated “that he was actively resisting, but at the screening stage the judge was required to draw the reasonable inference that [he] was subdued or only passively resisting. In that case, shooting him with stun guns could violate clearly established law.” Felton v. City of Chicago, #14-3211, 2016 U.S. App. Lexis 11777 (7th Cir.).

Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence

     After a man’s conviction for the murder of his mother was vacated, the state declined to retry him. He then sued, contending that officers and the county violated his constitutional rights by not disclosing certain materially favorable evidence in connection with his trial, fabricating evidence, and conspiring to misuse evidence to convict him. The focus of the claim was failure to reveal prior to trial that an alleged altercation involving the plaintiff was fabricated. The defendant sheriff, however, did not learn about the reported altercation until during the trial and only later learned that the report was unsubstantiated. Further, his failure to testify at the trial about his limited knowledge of the report failed to support a Brady claim and was protected by absolute witness immunity. In fact, he was never asked whether the report was or was not substantiated. No reasonable jury could infer the existence of a conspiracy to deprive the plaintiff of a fair trial, and there was no intent or bad faith on the part of any of the defendants. Helmig v. Fowler, #14-3422, 2016 U.S. App. Lexis 12684 (8th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     A man was detained and arrested as he sat in his car in a school parking lot as he waited for his wife, who was employed there, because he refused to produce identification. While the officer may not have had reasonable suspicion to detain him, a federal appeals court found that the arresting officer was entitled to qualified immunity. The detention was not objectively unreasonable under clearly established law. The officer was not put on notice that detaining a person for a failure to provide identification on school property is definitively unlawful. While there were prior U.S. Supreme Court cases which held that police may not detain an individual solely for refusing to provide identification, those cases did not deal with incidents occurring on school property. Gonzalez v. Huerta, #15-20212., 2016 U.S. App. Lexis 11530 (5th Cir.).

Firearms Related: Intentional Use

****Editor’s Case Alert****

     A motorist driving his car erratically on a two-lane highway nearly collided head-on with a police officer’s vehicle and then sped away. The officer gave chase at high speed, and was also joined in the pursuit by a second officer. The motorist’s car swerved, spun 360 degrees, and ran off the road into a ditch. One of the officers ran towards the crashed car and fired one round. The second officer then aimed at the car and fired 13 rounds. The motorist died from gunshot wounds. The officers were not entitled to qualified immunity on excessive force claims. If a jury believed the plaintiff’s version of the facts, it could conclude that a reasonable officer would have been on notice that firing into the vehicle violated the Fourth Amendment when the motorist “had been seen to do nothing more than flee from police during the vehicular pursuit for potential driving under the influence.” Thompson v. City of Lebanon, #14-5711, 2016 U.S. App. Lexis 13589 (6th Cir.).

Firearms Related: Second Amendment

     A man, as trustee of his own revocable trust, submitted an application to the ATF to manufacture a machine gun. When it was denied, he sued, challenging the constitutionality under the Second Amendment of a 1986 federal statute making possession of a machine gun unlawful. A federal appeals court concluded that machine guns are not protected by the Second Amendment because they are dangerous and “unusual,” and therefore not in common use. The court also ruled that the plaintiff had standing to pursue his claim because trusts were “persons” barred from possessing machine guns under the statute. Hollis v. Lynch, #15-10803, 2016 U.S. App. Lexis 12099 (5th Cir.).

Indemnification

     Three deputies allegedly assaulted a man. The employing county provided a defense for them under a reservation of rights, and then refused to indemnify and pay the resulting judgment for battery and civil rights violations of $255,000 in compensatory damages on the ground that the employees acted with actual malice. Punitive damages of $50,000 were also awarded against each deputy. The deputies sued the county for indemnification. An intermediate California appeals court ruled that an employer’s reservation of the right to indemnity from the employee for acts committed with actual fraud, corruption or actual malice is necessarily a reservation of the right not to indemnify the employee for such acts, and reversed a trial court ruling awarding indemnification. The county showed that the jury found the deputies acted with actual malice, or at the very least, a triable issue of fact existed as to whether the deputies acted with malice, Chang v. County of Los Angeles, #B261194, 1 Cal. App. 5th 25, 2016 Cal. App. Lexis 539.

Malicious Prosecution

     Four women sued, raising various claims about their arrests for and now-vacated convictions for prostitution, including malicious prosecution. Rejecting the malicious prosecution claim, a federal appeals court ruled that the plaintiffs had failed to meet their burden of showing that their convictions had been vacated for reasons indicating their actual innocence of the underlying charges. There was no legal support for the plaintiffs’ argument that evidence regarding the reliability of a key witness necessarily proved that the accused was actually innocent of the charges against her. M.G. v. Young, #15-2090, 2016 U.S. App. Lexis 11206 (10th Cir.).

Privacy

****Editor’s Case Alert****

     In a prior 1996 case, the U.S. Court of Appeals for the Sixth Circuit ruled that the Freedom of Information Act (FOIA), 5 U.S.C. 552, requires government agencies to honor requests for the booking photographs of criminal defendants who have appeared in court during ongoing proceedings. Despite that, the U.S. Marshals Service denied the plaintiff newspaper’s request for booking photographs of Detroit-area police officers indicted on federal charges. The federal appeals court upheld the denial and overruled the 1996 case, finding that FOIA Exemption 7(C) protects a non-trivial privacy interest in keeping “personal facts away from the public eye.” Criminal defendants, the court stated, do not forfeit their interest in controlling private information while their cases remain pending, and federal regulations and policies prevented mug-shot disclosure absent a law-enforcement purpose in such disclosure. Detroit Free Press v. Dep’t of Justice, #14-1670, 2016 U.S. App. Lexis 12928, 2016 Fed App. 164P (6th Cir.), 44 Media L. Rep. (BNA) 2009 (6th Cir.).

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Resources

     Computer Security: Growing Risk of Data Sabotage: Protecting Law Enforcement Agencies, by Michael Gregg, FBI Law Enforcement Bulletin (July 2016).

     Spiritual Survival Tools: Value of Spiritual Survival Tools for Law Enforcement Officers, by Cary A. Friedman, FBI Law Enforcement Bulletin (July 2016).

     Use of Force: An Empirical Analysis of Racial Differences in Police Use of Force, by Roland G. Fryer, Jr., National Bureau of Economic Research (NBER) Working Paper No. 22399 (July 2016).

     Use of Force: Officer Survival Spotlight – What Is a Safe Distance?, by Marcus Young, FBI Law Enforcement Bulletin (July 2016).

  Reference:

Cross References
Defenses: Absolute Immunity — See also, Assault and Battery: Physical
Defenses: Qualified Immunity — See also, Assault and Battery: Physical
Firearms Related: Intentional Use — See also, Dogs
Freedom of Information — See also, Privacy
Police Plaintiffs: Assault — See also, Assault and Battery: Physical

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Access the multiyear Civil Liability Law  Case Digest

List of  links to court websites

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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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