A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.

Jerry Flanory was an involuntary resident at Michigan’s Newberry Correctional Facility. The Classification director told him that he had to take a GED class. He told the director that he already had a GED from Sarvis Educational Center and an AA degree from Montcalm Community College. The institution refused to confirm his information. When Flanory refused to go to GED classes he was placed on restriction. As part of his restriction he was not allowed to participate in the Indigent Program. Without participating in the Indigent Program he was unable to buy toothpaste for 337 days. After he was readmitted to the Indigent Program he was diagnosed with a periodontal gum disease and he had to have a tooth extracted.

He sued for a violation of his Eighth Amendment right against cruel and unusual punishment. The District Court threw out his case for failure to state a cause of action. The Sixth Circuit reversed the lower court decision finding that Flanory stated a cause of action under the Eighth Amendment.

The Eighth Amendment prohibit prison authorities from “unnecessarily and wantonly inflicting pain by acting with deliberate indifference to inmate’s serious medical needs.” the court had little problem finding that Flanory’s medical needs were serious. It points that he was in considerable pain and that he had to have a tooth extracted.

But Flanory also had to show that the authorities acted with deliberate indifference to his medical needs. It is insufficient to show negligence. But in this case the knowing refusal to provide toothpaste met the test and the District Court’s decision was reversed.

Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

The question before the Seventh Circuit Court of Appeals in Tully v. Rush County Prosecutor Paul Barada et al was whether one who had been issued a citation and had not been incarcerated could sue for false arrest on the grounds that the prosecutor had violated their Fourth and Fourteenth Amendment rights when probable cause did not exist to charge them.

The Seventh Circuit ruled that a Section 1983 claim cannot be based purely on a citation without an actual arrest. A citation, unlike an arrest does not involve a seizure under the Fourth Amendment.

Michael Tully and Brock Carfield were convicted of shooting across a highway in Indiana after a citizen reported hearing gun shots and they were found with a gun and a dead raccoon in their vehicle. The conviction was reversed on appeal and they sued.

The Court found that they did not have a cause of action since they were cited and were not arrested. They had not been seized under the Fourth and Fourteenth Amendments and therefore could not sue. Probable cause, without an arrest, according to the Seventh Circuit is not cause for a 1983 cause of action.

The Ninth Circuit Court of Appeals upheld the blanket search of all inmates entering general population at the San Francisco County jails. In Bull v. San Francisco the court reversed a twenty-five year policy and allowed the Sheriff’s Department to strip search all inmates entering general population without an individualized suspicion or probable cause.

The District Court denied the sheriff’s request for partial immunity finding that the searches violated the Fourth Amendment and that the law was clear at the time of the searches. While stating that inmates do not give up all of their Fourth Amendment rights when they are incarcerated, the court found that inmate’s rights must be subject to the administrative and security needs of the institution.

However, the Ninth Circuit reversed alleging that Supreme Court precedent allowed the searches and required the courts to give deference to law enforcement officers in the area of inmate and deputy safety. Considering the problems that the San Francisco jails had with contraband entering the jail the court determined that the search policy was not unreasonable and therefore it did not violate the Fourth Amendment.

The dissent points out that the searches are not reasonable. Among the defendants challenging the searches is one who is charged with pour fake blood during a demonstration and another who is charged with writing bad checks. Furthermore only a small percentage of those who enter the jail bring contraband with them. The long history of litigation in the Ninth Circuits and most of the other circuits has upheld the need fior an individualized evaluation and not the blanket acceptance of strip searches accepted by the majority opinion.

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.

The First Circuit Court of Appeals upheld a finding of summary judgment in favor of the City of Sandown, New Hampshire, its former police chief and a police officer. Ralph Holder and his estranged wife attended their son’s soccer game. During the game it started to rain and Mr. Holder asked his wife if she had brought a long sleeve shirt for their son. She said she hadn’t. A verbal confrontation commenced. Eventually Ms Holder bumped her husband and he instinctively pushed her away.

Ms Holder called the police. When the officers arrived Ms Holder told them that her husband had pushed her. Mr. Holder then told the officers that his wife had initiated the verbal confrontation and that she made the initial contact. He urged them to talk to nearby witnesses. He was then arrested and charged with simple assault. After the arrest the officers spoke to a couple of witnesses. None of the witnesses saw the confrontation but one said he heard that Ms Holder initiated the dispute.

The trial court granted summary judgment and Mr. Holder appealed on Fourth Amendment grounds as applied to the states by the Fourteenth Amendment.

An arrest violates the Fourth Amendment if is not based on probable cause. Probable cause exists when

at the time of the arrest, the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Probable cause requires only a probability that the arrestee committee the crime. Certainty is not necessary.The officer’s decision needs only to be reasonable.

According to the court the officers have no duty to check out the suspect’s defenses. Once they decide that probable cause exists and they can do that solely on the allegation of the alleged victim, they do not have to talk to witnesses or otherwise investigate whether or not the suspect committed the offense.

Mr. Holder further argued that New Hampshire law requires the officer to determine who was the primary physical aggressor. The law states

an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer. When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. § 173-B:10, II.

But according to the First Circuit a state may impose restrictions on arrest greater than what is demanded by the Fourth Amendment. But the Federal court need not consider state law. It is limited to the requirements of the Fourth Amendment, Since the Fourth Amendment only requires that the officer determine whether probable cause exists and since based upon Ms Holder’s statement probable cause existed summary judgment was properly granted.

The charges against Mr. Holder were eventually dismissed. But he had to suffer the consequences of being arrested. Perhaps he spent some time in jail. He may have had to hire a lawyer. If he had money he may have had to pay for a bail bond. He could have had consequences on his job due to time missed either while in jail or attending court appearances. His wife may have gotten a restraining order preventing hem from seeing his son. His child support may have been raised if as a result of the arrest he was not able to share custody or have visitation with his son.

All of this could have been prevented if the police had done a thorough investigation before arresting Holder. As a result of the grant of summary judgment Holder is not entitled to any compensation for the poor investigation prior to his arrest.

Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.