Officer Robert M. Bauer, a Fairfax County Virginia police officer, investigated a complaint that a vehicle later determined to belong to Dr. Rose Merchant had forced another car off the freeway and that Merchant’s vehicle had blue flashing lights. Bauer made plans to meet Merchant and her husband. It was determined that her husband had the car during the time in question but their was no proof the car had blue flashing lights or that such lights had at some point been removed from the vehicle. During the conversation Merchant, a psychologist told Bauer that she worked in law enforcement and that she was the Deputy Director of the Department of Corrections of Prince George’s County, Maryland. He could see a concealed badge but he could not make out what it said and at no point did Merchant show it to him.

He started an investigation for impersonation of an officer. During the investigation he verified the information Merchant gave him during the meeting. He also verified that certain citizen employees of the n Prince George’s County Department of Corrections, including Merchant, were entitled to carry a badge. However, he continued the investigation. He discussed his findings with a deputy Commonwealth’s Attorney who told him he had a good case and he reviewed case law on the matter. Then he went to a magistrate and got a warrant. Merchant was arrested. But at trial the court threw the case out finding that there was no evidence to support the charges.

Merchant sued. Bauer claimed qualified immunity. The District Court denied the claim. In order to find that the officer had qualified immunity the court must find that there was no violation of a constitutional right or the right was not clearly established at the time of the incident. . The constitutional right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment. The need for probable cause to arrest a person was well known at the time of Merchant’s arrest and no reasonable person would have thought that probable cause existed based upon the information known to Bauer. As a result the Fourth Circuit Court of Appeal upheld the denial of qualified immunity.

Hershel Oscar Rosenbaum received free tickets to the Nevada State Fair from radio station KOZZ. He did not want to use the tickets. Rosenbaum, his wife and his two young children went to the fair. His wife stayed in the car while Rosenbaum and the children got out of the car. Rosenbaum proceeded to sell the tickets for five dollar each while he was standing in front of the fair.

Deputy Sheriff Lieutenant James Forbus approached Rosenbaum, took the children to their mother and arrested Rosenbaum. He was booked on charges of child abuse, neglect, or endangerment of a child and for obtaining money by false pretenses. He was charged with only one count of receiving money by false pretenses and eventually the charge was dismissed. There is no scalping law in Nevada.

Rosenbaum and the children sued the county and several officers claiming he was arrested without probable cause and violation of their rights to family integrity in Federal Court.

The defendants moved for summary judgement on the grounds of qualified immunity. The motion was granted and the Rosenbaums appealed. Summary judgement should be denied if the plaintiff’s constitutional rights were violated and it was clearly established at the time of the arrest that the violation existed. The Ninth Circuit reversed the District Court’s decision. It held that Rosenbaum’s arrest violated the Fourth Amendment due to a lack of probable cause to arrest him. On appeal the defendants argued that there was probable cause to arrest Rosenbaum for obtaining money by false pretenses and violation of an obscure law, “collecting for benefit without authority.” The elements of obtaining money by false pretenses are this crime are: the intent to defraud, a false representation, reliance on that representation, and that the victim is defrauded. There was no evidence of any of these elements. Likewise there is no evidence that Rosenbaum attempted to defraud a charity as required by the collecting for benefit without authority statute. Since no reasonable officer could find a violation of either statute the defendants were not entitled to qualified immunity. As a result the Ninth Circuit reversed the District Court’s grant of summary judgement.

When the officers took the children to their mother they told the children that their father had done something wrong and was going to jail. The court found that the officers’ actions were inappropriate but that they did not shock the conscience and did not rise to the level of violating the right of family integrity.

In 2003 a Maryland court issued a misdemeanor warrant for Frederick P. Henry for failure to pay child support. Deputy Robert Purnell went to Henry’s trailer to serve the warrant. He met a man outside the trailer who said he was a friend of Henry’s. The man told the deputy that Henry was at work and gave the address of his employment. When Purness went to the address he was told that Henry no longer worked there. At this point Purnell realized that he had been scammed. The man at the trailer was Henry. Not long afterwards Purnell saw Henry as a passenger in a vehicle. He stopped the vehicle and Henry admitted his identity. After Henry was out of the vehicle he started to run away. Without giving any warning and meaning to shoot him with his Laser, Purnell shot him from behind with his service revolver in the knee.

After three attempts to get a summary judgement motion, the District Court granted Purnell’s summary judgement motion on qualified immunity grounds. Law enforcement officers have qualified immunity from suit unless they violate a right guaranteed by the constitution and the right was clearly established at the time of the violation. The District Court ruled that Purnell had qualified immunity because the officer’s actions were reasonable in light of the minimal training that he received in use of the Laser. A panel of the Fourth Circuit Court of Appeals affirmed the decision. But last week the court sitting en banc reversed the decision finding that long standing Fourth Amendment law required that a violation of the Amendment is determined objectively and Purnell’s subjective view that he was within the Amendment is irrelevant. There is no question that the use of deadly force to make an arrest violates the Fourth Amendment unless “probable cause [exists] to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”. Here there was no evidence of violence. Henry had no criminal history of violence. He did not have a gun on him. His back was facing the officer. Since there was no threat of violence the officer’s use of a gun whether or not he subjectively thought he was using a Laser was a violation of the Fourth Amendment. Furthermore the law is longstanding and it was clear in 2003 at the time of the incident. Therefore the Fourth Circuit reversed the decision and remanded the case to the District Court for trial.

In District Attorney’s Office for Third Judicial Dist. v. Osborne the Supreme Court, last year, found a limited right to DNA samples. The question of how to get it was left open. Is a writ of habeas corpus with its limitations necessary or can a defendant file a civil rights suit pursuant to 42 U.S.C.1983. This week the Supreme Court in Skinner v. Switzer ruled that it can be obtained by a civil rights suit.

A writ of habeas corpus (literally: “you are to have the body” is a request to release a person from custody or confinement. But a request to test the DNA samples does not automatically result in a release from custody. It may be counterproductive in that it may help to prove guilt or it may be ambivalent. Thus since the request for DNA testing does not in and of itself result in the release of the body a Section 1983 action is appropriate.

As in the case we looked at yesterday, the decision is not one on the merits it only allows Henry Skinner to file an action. He still has to prove his case.

Andrew B. Sallenger lived with his mother, sister, and her four children in Springfield, Illinois. He was schizophrenic and suffered from bipolar disorder.

Shortly after midnight on April 30, 2002 he had a major psychotic break. His sister, Kim Nolan, called the police. They arrived shortly after 2:00 am. Sallenger, a large man was running around the house nude, and out of control. The police eventually subdued him, placed him in handcuffs and hobbled him. A hobble is a cord that is looped around the lower legs and connected to the handcuffs. If the hobble is not properly applied it can result in death. ¹ Shortly after the hobble was applied Salenger stopped breathing. The question before the court is whether the officers acted reasonably, as is required by the Fourth Amendment, after discovering that Salenger stopped breathing. The officers testified that they immediately applied CPR and summoned an ambulance. However both the officers and Sallenger’s estate, which was suing the officers and the town of Springfield for violating his Fourth Amendment rights, agreed that police Lieutenant Mark Bridges arrived at the residence shortly before the officers initiated CPR and called the ambulance. But there was a seven minute gap between the original radio transmission saying that Sallenger was not breathing and Bridges’ transmission saying he was on the scene. The implication is that the police waited seven minutes before they removed the hobble, initiated CPR and called the ambulance. But Bridges testified that with the chaos at the residence he may not have radioed in his location until seven minutes after he arrived. During that period he helped to provide emergency care to Sallenger. Therefore the Seventh Circuit upheld the trial court’s finding of summary judgement on the Estate’s claim that the officers failed to provide proper medical care to Sallenger after applying the hobble.

A second claim before the Seventh Circuit was the Estate’s claim that the trial court wrongly granted summary judgement on the count alleging that the City of Springfield failed to train its officers on the proper use of the hobble. But since the jury found in two trials that the officers did not improperly use the hobble, the city could not be held liable for failing to train the officers in the proper use of the hobble.

At times I have discussed writs of habeas corpus and civil rights suits pursuant to 42 USC 1983. A recent Third Circuit Court of Appeals cases does an excellent job of differentiating the two and explaining when each is to be used.

In McGee v. Martinez Steven McGee was convicted in a drug case. He was sentenced to 120 months and a fine of $10,000. Due to his indigence he was ordered to pay $20.00 a month while he was in custody and more when he got out. While in prison he was working on a writ of habeas corpus challenging his conviction. He was placed on the Inmate Financial Responsibility Plan (IFRP). The IFRP gives inmates incentives for paying their fines. In exchange for his promise to pay a minimum of $25.00 per quarter towards his fine he was to receive permission to use more than $25.00 per month in the commissary, eligibility for placement in a halfway house prior to his release, a promise not to receive an increased security designation, and an agreement not to receive an undesirable housing designation.

He needed the augmented commissary privileges in order to be able to buy typewriter ribbons, pads, and copying for the pro se habeas that he was working on. He borrowed money to work on the habeas. When the prison learned that he had the borrowed money in a bank account, they attempted to raise his IFRD contribution to $75.00 per quarter. When he refused to pay the increased payment he was put on “IFRP refusal status.” As such he lost his augmented commissary privileges. He was threatened with disciplinary segregation and the loss of good time. He filed a pro se habeas challenging the increased payment. The District court immediately denied the writ claiming that he should have filed a Section 1983 action instead of a habeas. The Third Circuit reversed the District Court and reinstated his habeas.

Under the common law a habeas could only challenge the ability of the state to detain an individual. But as the writ has been codified in 28 USC 2241 it can be used also to challenge the execution of the sentence. In contrast to a writ of habeas corpus a 1983 action is appropriate when the challenge is to a condition of the inmate’s confinement such that it would not necessarily alter and of the terms of the sentence.

Since requiring him to pay 75.00 per quarter ($25.00 per month) would alter the terms of his sentence, the court found that a writ of habeas corpus was the proper request and reversed the District Court’s denial of the writ.

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.