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Law Enforcement Liability Reporter January 2019
A civil liability law publication for Law Enforcement
Cite this issue as 2019 LR January
Assault and Battery: Physical
Domestic Violence and Child Abuse
Electronic Control Weapons: Dart Mode
Firearms Related: Intentional Use (4 cases)
Firearms Related: Second Amendment Issues
First Amendment (2 cases)
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Assault and Battery: Physical
     A female motorist passed a state trooperâs marked vehicle. The trooper checked and discovered that the vehicleâs registration was expired and began a traffic stop, activating his emergency lights, spotlight, and sirens, and recording the incident on his dash-cam. The driver decelerated and pulled onto a narrow and unlit shoulder before returning to the road and accelerating to 35-38 mph, a speed maintained for the rest of the pursuit. When she continued past the last exit before the nearest city, the trooper initiated a Precision Immobilization Technique (PIT) maneuver, striking her right-rear fender with his left-front bumper, which caused her car to spin into a ditch, hitting a cement culvert. The motorist and her child were treated at a hospital and released. She was given citations for misdemeanors of expired tags and failure to yield to an emergency vehicle.
    A federal appeals court ruled that the trooper was entitled to qualified immunity on excessive force claims. The right to be free from a PIT maneuver in these circumstances was not clearly established. From a reasonable officerâs perspective, the motorist refused to comply with commands to pull over. At the time, the trooper was justified in using some force to secure compliance. Moore-Jones v. Quick, #18-1045, 2018 U.S. App. Lexis 33339 (8th Cir.).
Domestic Violence and Child Abuse
    County social workers who suspected child abuse removed four children, all under the age of six, from a family home. They were taken to a temporary shelter and all given invasive medical examinations without their parentsâ knowledge or consent, and without a court order.  A federal appeals court ruled that the county violated the parentsâ Fourteenth Amendment substantive due process rights when it performed the medical examinations without notifying the parents about the examinations and without obtaining either the parentsâ consent or judicial authorization. The searches were unconstitutional under the special needs balancing test if performed without the necessary notice and consent. In this case, the county violated the childrenâs Fourth Amendment rights by failing to obtain a warrant or to provide these constitutional safeguards before subjecting the children to invasive medical examinations. Mann v. County of San Diego, #16-56657, 907 F.3d 1154 (9th Cir. 2018).
Electronic Control Weapons: Dart Mode
****Editorâs Case Alert****
       A police officer used a Taser twice in the dart mode on a 12-year-old student at a school for the deaf after giving him warnings that he would do so if he did not follow the officerâs instructions to put down a large rock. A federal appeals court held that the officer was entitled to qualified immunity because it was objectively reasonable for him to believe that, given the undisputed facts, his conduct complied with clearly established law. In this case, the student was a threat to himself and others, and the officer had a reasonable basis to believe that his instructions and warnings were being conveyed to the student by faculty in American Sign Language (ASL) and the student was ignoring them.
     The student got into a confrontation over a takeout food order with a teacher at his school, became angry, ran from the dorm, and entered a nearby, fenced-off construction area. The teacher followed, and the student picked up a stick and hit him, and then commenced throwing rocks, also hitting the teacher at least once. The school reported in a 911 call that the student was âout of controlâ and âmaking the situation dangerous.â Muschette v. Gionfriddo, #17-3817, 2018 U.S. App. Lexis 34470 (2nd Cir.).
Firearms Related: Intentional Use
      A female police officer shot a man who was cutting himself with a knife in the waiting area of a psychiatric center. He argued that this violated his Fourth Amendment right to be free from unreasonable seizures. The officer moved for summary judgment based, in part, on her qualified immunity to federal damage claims. The trial court denied the motion, concluding that she could not constitutionally shoot the plaintiff unless he posed an immediate threat to herself or others and only after providing some kind of warning, if feasible. The federal appeals court dismissed the appeal to the extent it challenged the trial courtâs assessment of the factual record and otherwise affirmed the denial of summary judgment. Begin v. Drouin, #17-1451, 2018 U.S. App. Lexis 32448 (1st Cir.).
    An officer who shot and killed a man was sued for excessive force. A federal appeals court, ruling in an appeal of denial to summary judgment to the officer on the basis of qualified immunity, ruled that it lacked jurisdiction to consider questions of evidentiary sufficiency on an interlocutory review, and thus dismissed the officerâs appeal with respect to the claims that the shooting violated the decedentâs Fourth Amendment right and the plaintiff familyâs Fourteenth Amendment rights. The appeals panel reversed the trial courtâs denial of qualified immunity on the Fourth Amendment claims pertaining to the stop, holding that the officerâs actions during the investigative stop did not violate any clearly established law. In this case, the officer had reasonable suspicion to stop and investigate the decedent after the 911 call warning of an armed man matching his description, and unholstering a gun during the stop did not constitute a violation of the right to be free from excessive force. Foster v. Hellawell, #17-55167, 2018 U.S. App. Lexis 32797 (9th Cir.).
    A 19-year-old black man was attending a party at a motel when another young black male pulled a gun and robbed the guests, including him and held them all hostage. A woman called 911 to report the incident and then kept her phone hidden and open so the 911 dispatcher could hear events as they unfolded, including an apparent confrontation between the man with the gun and someone with a knife, who was the 19-year-old male. The man with the gun demanded that the man with the knife give it up. During the police response to the incident, the 19-year-old fled from the room while the robber fired shots.
     The 19-year-old was shot and killed by three officers who fired 17 rounds while he was lying on the ground. A federal appeals court reversed summary judgment for the defendant officers. The resolution of the conflicting testimony between one officerâs more or less contemporaneous statement to investigators (that he had shot the decedent despite his compliance with commands) and all of the officersâ subsequent unified conflicting deposition testimony should be left to a jury and the district court erred in finding the defendants entitled to qualified immunity. Henderson v. City of Woodbury, #17-1385, 2018 U.S. App. Lexis 33334  (8th Cir.).
In an excessive force case arising from the fatal shooting of an armed civilian by a state trooper, a federal appeals court upheld a grant of summary judgment to the officer on the basis of qualified immunity. The decedent, after a nearly three-and-one-half-hour standoff in which he was repeatedly warned to drop his weapon, persisted in pointing a loaded semi-automatic firearm narrowly above the heads of three officers, who were within easy firing range. Qualified immunity protects public officials, including police officers such as the defendant, the court noted, from civil liability while acting under color of state law, with the exception of officials who act incompetently or in disregard of clearly established legal principles. Conlogue v. Hamilton, #17-2210, 906 F.3d 150 (1st Cir. 2018).
 Firearms Related: Second Amendment Issues
     The state of New Jersey passed a law limiting the amount of ammunition that may be held in a single firearm magazine to no more than 10 rounds, N.J. Stat. 2C:39-1(y), 2C:39-3(j). Rejecting a Second Amendment challenge as well as challenges citing the Fifth Amendmentâs Takings Clause, and the Fourteenth Amendmentâs Equal Protection Clause, a federal appeals court held that the law reasonably fits the stateâs interest in public safety and does not unconstitutionally burden the Second Amendmentâs right to self-defense in the home. The law does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the lawâs exemption that permits them to possess magazines that can hold more than 10 rounds does not violate the Equal Protection Clause. Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, #18-3170, 2018 U.S. App. Lexis 34380 (3rd Cir.).
****Editorâs Case Alert****
    The Pennsylvania Supreme Court held that threatening police officers in the lyrics of a rap song was not protected speech, so that prosecuting the rapper for witness intimidation and terroristic threats in a music video entitled âFuck the Policeâ did not violate the First Amendment. In that video, Jamal Knox, using the name Mayhem Mal, threatens to kill the two police officers and an informant that led to his conviction on a 2012 drug charge. The judges reasoned that the lyrics themselves were âboth threatening and highly personalized to the victims.â Even the dissenting opinion found that Knox intended to communicate a true threat. In the lyrics, he names the police officers, and states how and where he was going to kill them, in rather specific terms.  Commonwealth v. Knox, #J-83-2017, 190 A.3d 1146, 2018 Pa. Lexis 4272.
     A federal statute, 8 U.S.C. 1324(a)(1)(A)(iv), aimed at criminalizing advocacy of violation of immigration laws, is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to the statuteâs narrow legitimate sweep. Subsection (iv) permits a felony prosecution of any person who âencourages or inducesâ an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law. A federal appeals court reversed the defendantâs conviction with respect to the âencourage or induceâ counts. U.S. v. Sineneng-Smith, #15-10614, 2018 U.S. App. Lexis 34099 (9th Cir.).
     Firearms: Christopher M. Donner and Nicole Popovich. âHitting (or missing) the mark: An examination of police shooting accuracy in officer-involved shooting incidents.â Policing: An International Journal (2018).
 Statistics: Davis, E., Whyde, A., Langton, L. Special Report: Contacts Between Police and the Public, 2015, NCJ 251145, Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice. October 2018
Abbreviations of Law Reports, laws and agencies used in our publications
AELEâs list of recently-noted civil liability law resources.
Pursuits: Law Enforcement â See also, Assault and Battery: Physical
