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Category Archives: Governmental Tort Claim Act

The U.S. Supreme Court, Qualified Immunity, Deadly Force, and a Car Chase.

10 Tuesday Nov 2015

Posted by Celia C. Elwell, RP in Appellate Law, Civil Rights, Excessive Force, Governmental Tort Claim Act, Qualified Immunity, United States Supreme Court

≈ Comments Off on The U.S. Supreme Court, Qualified Immunity, Deadly Force, and a Car Chase.

Tags

Excessive Use of Force, Law Enforcement, Law Librarians Blog, Mark Giangrande, Qualified Immunity

Supreme Court Action: Qualified Immunity When Deadly Force is Used By Officers During A Car Chase, by Mark Giangrande, Law Librarians Blog

http://tinyurl.com/q8m43ce

It will be interesting to see how this ruling may be applied to recent news events. –CCE

The Supreme Court issued one opinion today [November 9, 2015].  The case, Mullenix v. Luna (14-1143), decided whether a Texas state trooper (Mullenix) was entitled to qualified immunity when he fired shots at a suspect’s car during a high speed chase, killing the suspect. . . .

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Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

27 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Americans With Disabilities, Criminal Law, Defense Counsel, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Law Enforcement, Police Brutality, Trial Tips and Techniques

≈ Comments Off on Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

Tags

Criminal Law, Disability, Evidence, Fourth Amendment, Police Brutality, Reasonable Person Analysis, Trial Tips & Techniques

Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/plpuz7s

According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

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U.S. Supreme Court’s New Pleading Standards For Qualified Immunity.

27 Tuesday May 2014

Posted by Celia C. Elwell, RP in Appellate Law, Excessive Force, First Amendment, Governmental Tort Claim Act, Qualified Immunity, United States Supreme Court

≈ 1 Comment

Tags

Excessive Force, First Amendment, Iqbal, Qualified Immunity, Supreme Court, Twombly

SCOTUS Decision in Wood v. Moss: Guidance on Pleading Standards?, by Adam Steinman, Civil Procedure and Federal Courts Blog 

http://tinyurl.com/pvgjemj

Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.

In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. . . .

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Smelling Pot From A Moving Car With Closed Windows.

13 Sunday Apr 2014

Posted by Celia C. Elwell, RP in Criminal Law, Drug Possession, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Probable Cause

≈ Comments Off on Smelling Pot From A Moving Car With Closed Windows.

Tags

CrimProf Blog, CrimProf BlogEditor, Fourth Amendment, Law Enforcement, Marijuana, Police, Probable Cause, Washington Post

Smelling Pot From A Moving Car With Closed Windows, By CrimProf BlogEditor, CrimProf Blog

http://tinyurl.com/qxt6xyu

FourthAmendment.com links to this piece at the Washington Post, discussing the ease with which police can stop cars that they suspect might be carrying drugs. Among the most interesting aspects is the discussion of cases in which cops in moving cars with closed windows claim to smell pot in other moving cars with closed windows. . . .

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Second Circuit Denies Officers’ Qualified Immunity.

22 Wednesday Jan 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Criminal Law, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Litigation

≈ Comments Off on Second Circuit Denies Officers’ Qualified Immunity.

Tags

Adam Klasfeld, Confidential Informant, Courthouse News Service, Drug Paraphernalia, Drugs, Excessive Use of Force, Fourth Amendment, No Knock Warrant, Qualified Immunity, U.S. District Judge Lawrence Kahn, U.S. District Judge Rosemary Pooler, United States Court of Appeals for the Second Circuit, Weapons

Botched Drug Bust Sends Investigator to Court, By Adam Klasfeld, Courthouse News Service

http://www.courthousenews.com/2014/01/22/64741.htm

 When law enforcement execute a search warrant on a residence, officers can use the “knock and announce” rule. Police knock on the door, announce their  intent to enter, and wait a “reasonable time” for the resident to open the door. Obviously, this approach has its drawbacks. Officers’ announcement of their presence before entering the residence can cause possible destruction of evidence and/or endanger the officers or others.

Law enforcement has another option – the “no knock” rule, which is just what it sounds like. Officers can obtain a search warrant to enter without knocking and announcing their presence or intentions before entering the residence. To obtain a no-knock warrant, the officers need to prove to the judge issuing the warrant that the officers are not disregarding reliable information indicating that this type of use of force is inappropriate. When procedures are properly followed, the involved officers have qualified immunity if the homeowner later sues for damages or excessive use of force under the Fourth Amendment.

When issuing a no-knock warrant, the police kick in or knock down the door to enter the residence. Regardless of the method, the door is often completely knocked off its hinges. In this Second Circuit case, the effect was even more dramatic. Around 6 a.m., Ms. McColley, a mother, and her young daughter woke to the sounds of the police knocking down the front door and the explosion of a flash bang grenade. -CCE

An immunity defense is premature for the drug investigator who led a turbulent raid on the apartment of a family with no criminal history, the 2nd Circuit ruled.

*     *     *

Michael Riley, an investigator for the Rensselaer County Drug & Gang Task Force, obtained the warrant days earlier based on the word of a confidential informant.

Though the CI claimed to have bought crack-cocaine from a man named Sport at the apartment, Riley conducted a background check on the property that revealed McColley as the tenant with her spotless record and young child.

He applied for the no-knock warrant anyway without mentioning the background check, the two-judge majority found.

‘The search of McColley’s home did not uncover any money, weapons, drugs, drug-related paraphernalia, or any evidence of criminality of any kind,’ Judge Rosemary Pooler wrote for the court. ‘The ERT took only a National Grid electric and gas bill and a registration bill for Hudson Valley Community College as fruits of the search.’

Accused of violating McColley’s Fourth Amendment rights, Rensaleer and Riley claimed qualified immunity, but U.S. District Judge Lawrence Kahn denied them summary judgment.

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Cleveland Police Chief suspends 63 of 104 officers involved high-speed car chase and fatal shooting of driver and passenger.

21 Monday Oct 2013

Posted by Celia C. Elwell, RP in Excessive Force, Governmental Tort Claim Act, Municipal Law

≈ Comments Off on Cleveland Police Chief suspends 63 of 104 officers involved high-speed car chase and fatal shooting of driver and passenger.

Tags

Civil Rights, Excessive Force, High Speed Chase, Police

Cleveland police to suspend 63 officers after fatal car chase, by Kim Palmer, Reuters
http://reut.rs/1fALXdr

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