Grand Valley State University (GVSU) student police shooting case settled.
Back in 2009 the police shot a college student in the chest, for no apparent good reason, during a marijuana raid. The case has settled, but the amount paid to the shooting victim remains confidential. Interesting thought in the reader comments section of the linked media account:
Details of the settlement SHOULD NOT be confidential! It’s the public’s money!
Police flashbang grenade incinerates innocent woman’s calf muscle
Police* had to pay a million dollars to settle.
Russell was never suspected of criminal activity, nor charged in connection with the incident. She had been visiting the apartment at the time of the raid.
“Bringing these lawsuits stops it from happening to you, to your family,” attorney Bennett said during an interview in his downtown Minneapolis office.
FOOTNOTE(S):
* Technically the City of Minneapolis makes the payment, rather than the police department itself, as is typical in these cases.
Police take $500, but have to give it back to suspect
Case: COURTNEY v. CITY OF CHICAGO, No. 11-1760 (7th Cir., December 2, 2011)
What happened: Police conducted a drug raid on a woman’s house and took ownership of $500 in cash from the home under asset forfeiture law. Woman filed a claim to get the $500 back, and she got the $500 back. She then sued anyway.
Decision: The decision is limited to municipal liability issues — that is, issues of whether the police department and/or city are liable for any wrongdoing that some of its individual police officers may have done. Municipal liability was denied here, as it so often is.
Quote:
Finally, {plaintiff] argues that the district court erred in granting summary judgment on her failure-to-train claim because some of the officers who searched her apartment are involved in other lawsuits alleging constitutional violations. But as the district court noted, the mere fact that an officer has been sued is not evidence of misconduct, much less a pattern of misconduct. And, in any event, [Plaintiff] failed to produce evidence showing that the seizure of her cash was unreasonable, as she must in order to recover on a theory of municipal liability. Officers acting within the scope of a valid warrant do not engage in official misconduct, and [Plaintiff] cites no authority for her assertion that the officers could not seize money without finding other evidence of a crime.
Comment: “[X] failed to produce evidence showing that [y] was unreasonable.” This statement of the opinion bugs me, and this is a type of statement I hear all the time. My issue here is that “reasonableness” or “unreasonableness” doesn’t seem to me to be properly characterizable as a “fact” supportable by what is properly thought of as “evidence.” I would propose that it would have been better if the opinion had instead said: “[Plaintiff] failed to produce evidence showing facts sufficient to support a legal conclusion that the seizure of her cash was unreasonable.” Assuming that that is what the opinion really intended to convey, of course.
Johannes Mehserle, 4 other BART officers cleared
Johannes Mehserle, 4 other BART officers cleared.
Carrethers’ attorney, Christopher Dolan, said Thursday that a crucial difference between the two cases was video evidence – jurors in the Grant case saw other passengers’ cell-phone videos of the shooting, but neither side in Carrethers’ case offered any evidence from bystanders, and BART did not preserve videos from a camera at the station.
“Had a video been there (for Carrethers), justice would have been served,” Dolan told reporters.
Mehserle testified that he saw no need to obtain videos or contact passers-by because the officers and two station agents all agreed on what had happened. BART now requires its officers to get videos from station cameras after such incidents, said Dale Allen, the lawyer for BART and the five officers.
Comment: Because the issue on BART is often allegations of police misconduct (which might be true or not), it is difficult to understand why BART would have the police be the ones to retrieve the videos. It flies in the face of preservation of evidence imperatives. Fox guarding the hen house.
Police can’t arrest for re-sale of tickets in NV — not a crime to do that there
Case: Rosenbaum v. Washoe County, 10-15637 (9th Cir, 30 Nov 2011)
What happened: Suspect won free tickets to the fair from a radio station. Suspect took his tickets to the fair and sold the tickets. Police officer arrested man, thinking that “scalping” tickets is illegal in Nevada. The police ended up booking the suspect for felony child abuse and felony “obtaining money by false pretenses.” The prosecutor ended up finally dropping all charges against the suspect, who then sued to become the plaintiff in this case. The police officer argued that he could reasonably have believed that there were grounds to arrest under a couple of Nevada “false pretenses” type statutes, including one about pretending to collect for charity.
Decision: Police may end up being liable here. No qi for the police on the false-arrest-based 4a claim under section 1983. It was not reasonable to believe that the suspect/plaintiff had committed any crime, specifically any false pretenses type crimes, by scalping tickets in Nevada.
Comment: I wonder how much the original charge of felony child abuse may have swayed the court. That was a pretty cruel maneuver by the police, and it is not the type of thing that makes one want to trust police with a lot of discretion in general, including the margin of discretion that a relatively liberal qi policy would afford the police.
Court rules no taser for minor crime plus mere non-compliance with police orders
Case: DOPORTO v. KIM (D.N.M. 11-23-2011)
Thus, when an officer’s violation of the Fourth Amendment is particularly clear from [Graham v. Connor, 490 U.S. 386 (1989) (seminal Supreme Court case on excessive force law] itself, the Tenth Circuit does not require a second decision with greater specificity to clearly establish the law. That is the case here. The limited admissible evidence presented on summary judgment is that Defendants Baker and Honigmann deployed their taser against a man who at that time was offering no resistance and posed no threat. It cannot be disputed that on February 22, 2008, it was clearly established that use of a taser against a person suspected of a relatively minor crime, who posed no threat to officer or others, and who was following directives issued by police, constitutes excessive force. Accordingly, the Defendants’ motion for summary judgment on the excessive force claims on the grounds of qualified immunity will be denied.
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About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop. Elihu Root, quoted in Philip C. Jessup, Elihu Root (Hamden, Conn.: Archon Books, 1964), vol. 1, p. 133, as cited by Lloyd B. Snyder, "Is attorney-client confidentiality necessary?", Georgetown Journal of Legal Ethics, Spring 2002, p. 33
Radley Balko on police, dogs, violence and children
Typically excellent Agitator blog post.
Ninth Circuit statement of the law of the emergency exception
Case: SIDHU v. GARCIA (9th Cir. 2011, not for publication)
In this case, the district court correctly determined that the plaintiffs’ constitutional rights were not violated. The warrantless search was justified by the emergency exception to the Fourth Amendment. The emergency exception is an extension of “police officers’ community caretaking function” because it allows officers to respond to “emergency situations that threaten life or limb” in a timely manner. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009). To determine if the emergency exception applies, this court makes a fact-specific inquiry as to whether: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008).
Gay man targeted for sting because he patronized porn shop
According to the Gay City News:
On November 18, the Second Circuit panel . . . reversed District Judge Shira A. Scheindlin’s denial of summary judgment [of qualified immunity in favor of police]for false arrest and malicious prosecution, but upheld her decision to let Pinter’s claims of abuse of process, sexual orientation discrimination, and denial of the right of free association proceed.
Pinter, whose arrest and claims against the city were first reported in Gay City News, visited the Blue Door video store in October 2008, where a young man stared at him, flirted, and initiated conversation, asking, “What do you like to do?” Pinter responded that the man was “good looking” and said he liked oral sex. The young man responded in kind, voiced hesitancy about doing anything in the store, and suggested his car was parked nearby. Pinter walked to the exit, followed by the young man, who in fact was an undercover police officer . . .
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Arch of triumph, or otherwise? The Water Tower in the distance looms fantastical -- a ghost from the time of when stuff looked cool.
Family wins appeal on VSP negligence – Brattleboro Reformer
Family wins appeal on VSP negligence – Brattleboro Reformer.
What happened: Police officers went to wrong address for a welfare check. The intended recipient of the welfare check died of hypothermia, but would have been saved by a welfare check.
Police rescue kitten in El Cajon, CA
From KCTV via PoliceOne News Site:
A kitten is grateful to be safe after spending most of Thanksgiving trapped in a pipe in California.The persistent and piercing cries for help began at about 4 a.m. Thursday, when the terrified kitten managed to tumble several feet down an exposed plastic utility pipe. Initially, a crew from emergency animal rescue attempted to save it, but had to call El Cajon Police Department and Heartland Fire Department for help.
Buckeye, AZ Walmart, Black Friday: Police smash suspect’s head, much blood ensues
From the MyFoxPhoenix.com account of the story:
The Buckeye police chief said the officer’s actions were justified and that the cell phone video of the fight showed only the very end of it. They said the Walmart’s surveillance cameras did not capture the beginning of the fight.
Comment: Uh huh.
Summary judgment for Columbia, MO police in Whitworth dog shooting case
Somewhat famous case due to YouTube video of the raid that went viral. The local newspaper site reports on qi summary judgment in favor of police and links to district court opinion:
http://www.columbiatribune.com/news/2011/nov/21/judge-dismisses-lawsuit-over-swat-raid/
Comment: I think the Court may have been watching a different video than me.
I love this little detail
Case: WHEELER v. THE CITY OF LANSING, 10-1128 (6th Cir. 11-8-2011)
Sharp does acknowledge that he filled out the “Return and Tabulation,” listing the property seized by other officers. While logging this property, Sharp learned that the correct address for the residence was [number redacted] Endicott Court, not [that same number] Mapletree Court as it was listed in the warrant. City of Lansing officers took the confiscated property to the Lansing Police Department and logged it in the department’s property room. According to the warrant return and the property room receipt, officers seized three cameras, a power adapter cord for a laptop computer, three gold bracelets, a gold chain, gold earrings, a gold ring, two watches (one Eddie Bauer and one Rolex), a radio, a laptop computer, a nineteen-inch television, a Playstation, a Gameboy, a video camera, a car stereo, silver certificates, an energy bill addressed to [plaintiff], and a bill addressed to [plaintiff's boyfriend / criminal suspect].
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As shown, Downtown Toronto has become an unseen vortex, sucking in the edge settlements of its city for reasons not known.
Man allegedly surrenders to police, but is beaten anyway
Case: BENNETT v. KRAKOWSKI, 10-2455 (6th Cir. 11-18-2011)
Interesting quote:
Though both Plaintiff and Defendants acknowledge that Plaintiff initially ran, Defendants fail to take into account the rest of the facts as stated by Plaintiff, such as his non-resistance, and his acquiescence to the Officers’ commands that he stop. For purposes of the motion, the Officers do not credit Plaintiff’s statement that he surrendered and voluntarily lay on the ground with his arms extended. In arguing that their conduct was reasonable and their use of force was not excessive, they take little, if any, account of the evidence offered by Plaintiff. This court has stated that “[m]ere conclusory statements that the officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this Court.” Thompson, 656 F.3d at 368. Defendants fail to construe the evidence in the light most favorable to Plaintiff, which indicated that Plaintiff, contrary to Defendants’ statements, did not resist arrest and obeyed the commands of the Officers. Therefore, because Defendants’ arguments regarding their claim that they are entitled to qualified immunity are based on contested facts that are pertinent to that determination, this court does not have jurisdiction to decide this issue.
Though both Plaintiff and Defendants acknowledge that Plaintiff initially ran, Defendants fail to take into account the rest of the facts as stated by Plaintiff, such as his non-resistance, and his acquiescence to the Officers’ commands that he stop. For purposes of the motion, the Officers do not credit Plaintiff’s statement that he surrendered and voluntarily lay on the ground with his arms extended. In arguing that their conduct was reasonable and their use of force was not excessive, they take little, if any, account of the evidence offered by Plaintiff. This court has stated that “[m]ere conclusory statements that the officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this Court.” Thompson, 656 F.3d at 368. Defendants fail to construe the evidence in the light most favorable to Plaintiff, which indicated that Plaintiff, contrary to Defendants’ statements, did not resist arrest and obeyed the commands of the Officers. Therefore, because Defendants’ arguments regarding their claim that they are entitled to qualified immunity are based on contested facts that are pertinent to that determination, this court does not have jurisdiction to decide this issue.
Police search Escalade and detain its occupants, civil suit ensues
Comment: Going only by the linked media account, plaintiff wouldn’t seem to have much of a case, but there may well be more to this story.
Pastor Creach shooting — here comes the civil suit
This is a famous case out of Spokane that raises the question of what happens if you order a police officer off of your property and he decides to club you with a baton and then fatally shoot you for trying to give that order to him. Worth a GOOGLE search if you don’t know the full facts & allegations. Civil suit has been filed.
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If they make the light blue-tinged (instead of sodium vapor orange) then probably the crime rate will go down.
Policeman arrests two teenagers, civil suit settles for $145K
The police officer allegedly wrongfully arrested two teenagers in connection with a dispute he was personally involved in, through his son being one of the disputants. Link:
Newspaper photographer arrested for photographing police officer
Civil suit likely over an arrest for jaywalking which appears to have really been all about the arrestee’s photographing of a police officer.
H/t to an Agitatortot codenamed Gideon Darrow down deep within the comments section of Radley Balko’s Agitator blog.
Occupy Wall Street: One Police Officer´s View
Although I’m going to try not to take exception to the news reporter making it sound like we are the problem here. The pepper spray issue, we spray who needs to be sprayed. The NYPD is well aware of the circumstances here and well prepared to handle the crowd and the resistance they put forward. Not allowing the press into the area in the initial approach, that makes good common sense, because no camera crew to dance in front of many will just walk away. . . . These camps are not heading in the intended direction, they have become unsightly, dangerous and are disrupting the work force of those who are willing to find work and go to work. It’s time after 2 months that order is controlled and maintained. You want to protest, get the necessary permits and do it in away that the government and the people will respect you. This kind of demonstration breeds chaos over long time. Crime, drugs and a misrepresentation of the good that was intended. Get your butts off the street and get to the polls and go down to D.C. just like the Million man March and so many organizations protest, just do it by the numbers and stop this radical take over BS. We are the police, LE is what we do, you are breaking the law, here we come. Now shut up and go home, move on, no body gets sprayed, tased or sauteed.
Comment: I am not endorsing this comment (and I disagree with at least some of it), but I see it as representative of police attitudes toward Occupy Wall Street.
http://www.policeone.com/Crowd-Control/articles/4649490-Police-clear-Occupy-protesters-from-NY-park/
Police officer allowed to warrantlessly break down door of suspected drunk driver
Case: Cilman v. Reeves (4th Cir., unpublished, 11/4/2011)
What happened: Police officer followed suspected drunk driver (and the plaintiff in this civil suit), but did not catch up to him until he got into his house and locked the door. The police officer then called back-up and broke down the suspect´s door and arrested him on a drunk in public charge, but strangely not a DUI charge. Charge was dropped. Suspect/plaintiff sued. District court granted summary judgement on the fact that a Constitutional violation occurred, citing the famous (infamous?) Welsh case.
Decision: The police are not liable here because Welsh may not apply in jurisdictions where DUI is a misdemeanor (as in the present case), rather than an infraction (as in Welsh).
First comment: Because the drunk driving charge was never even leveled by police, let alone sustained by a prosecutor or grand jury, it is difficult to see how exigent circumstances existed at the time of forced entry. the police officer testified that he did not bring the charge because the suspect-plaintiff might have been drinking in his house. However, the police officer knew of this possibility before he entered the house with his back-up. If this possibility kept him from bringing a DUI charge, then it seems like it would have, by the same token extinguish exigency (or at least extinguish the probable cause that must legally accompany exigency, which is basically the same thing).
Second comment: No blood alcohol content number appears in the appellate court decision, and no mention is made of alcohol testing. However, the whole theory of DUI-as-an-exigent-circumstance is that the police need to get to the suspect in order to test the blood alcohol content in a timely manner. If the police really did not test ¨BAC¨ here then that would also contradict exigent circumstances.
Third comment: Plaintiff-suspect testified that police did not knock at the door, or request for him to come out after he went inside. The police officers testified that they did knock first. However, if the suspect is telling the truth and the police are lying, then his would also seem to a 4a violation.* It seems to me that anyone who is going to have their door broken down on suspected DUI should at least be given a chance to open the door first (even if there is a warrant, but most especially when there is not a warrant, as here). Accordingly, it seems like the appellate court should have remanded for fact-finding on that issue.
Fourth comment: [I deleted this Fourth Coment a couple of hours after it was posted -- upon further reflection, this comment didn´t reflect my considered opinions about the case and its judicial disposition.]
Footnote(s):
* There are certainly exigent circumstances situations that would justify a failure to knock due to the nature of the exigency, but DUI-exigency (if such a thing even exists) would not be one of those situations.
Arrest warrant plus pot in the toilet pipes does not excuse lack of search warrant
Case: SHORTER v. DOLLAR (M.D.Ala. 11-7-2011)
After examining the contents of the [exterior ¨sanitary sewage pipe¨], which the [police officers] believed to be marijuana, the [police officers] exploded through the Plaintiffs’ front door and used force to effectuate an arrest of the Plaintiffs in the presence of the Plaintiffs’ minor child. Furthermore, the [police officers] also conducted a search of the Plaintiffs’ home immediately after completing the arrest. To reiterate, all of this was done without a search warrant for the Plaintiffs’ residence and while the [police officers] were holding nothing but an arrest warrant for a third party accused of rape who resided at a different address. Applying these alleged facts to well-established precedent outlined above, it is clear that the [Defendant police officers] have violated the Plaintiffs’ right to be free from unlawful entry.. . . The police officers’ search of the Plaintiffs’ home in the absence of a search warrant is presumptively unconstitutional. Under the alleged facts, the [police officers] had no reason to look into the Plaintiffs’ [¨sanitary sewage¨] pipe or to rush into the Plaintiffs’ residence without a warrant.
Decision: Police may end up being liable here.
Police officer allegedly makes up non-existent confidential informants to get search warrant
From Tulsa World:
The lawsuit filed Thursday alleges that [Officer] Henderson, who is awaiting a Dec. 6 sentencing date, “obtained a multitude of search warrants on the basis of perjured affidavits containing strikingly similar allegations.”
The Tulsa County District Court lawsuit claims that these affidavits “set forth nearly identical, boilerplate representations regarding information provided to Henderson by purported confidential informants.”
[The victim of the unlawful search] claims in [his pending civil suit] that many of the informants never existed and those that did had often lied about the matters they were supposed to have witnessed.
Video: Policeman versus ex-policeman
The retired policeman (the one in street clothes in the vid) got a $30K settlement of claims in 2009. Recently a civil jury awarded $200K to the policeman (the one in uniform) basically because the jury believed that the police department took too many steps to keep the policeman from getting another police job after they fired him for the conduct shown in the video. The jury did find the firing itself to be acceptable, so itshould be understood that the liability was not for the firing itself.
Police reactions and link to full story over at the PoliceOne.
EDIT NOTE: Changed “ex-policeman” to –retired policeman– in the body of the post (but not in the title).
The Otto Zehm beating death in Spokane
This case has been going on since police beat Otto Zehm to death in Spokane, Washington in 2006. As you may know, I generally don’t blog police-subdue-person-going-crazy cases, and Otto Zehm was mentally ill. However, it looks like he wasn’t acting crazy when the police officers beat him to death.
In 2009, the civil suit was put on hold because of criminal prosecution of some of the police officers by the federal government. This month a jury convicted one of the policemen for civil rights violations in connection with the Zehm beating and failed cover-up measures. Perhaps this means the civil case can restart.
Here is how police officers reacted to the guilty verdict at Officer Thompson’s criminal trial:
http://www.policeone.com/use-of-force/articles/4604901-Wash-officer-convicted-of-excessive-force/
Warrantless GPS tracking by police and the Jones case
The U.S. Supreme Court GPS tracker case is all over the news because they just had oral hearings. No decision for many months, of course. Jones is a criminal case involving the exclusionary rule, not a civil case involving damages.
Still, the case is relevant to this civil case oriented blog for the following reason. If Defendant Jones wins and the GPS is excluded, it just means that police will stop introducing GPS tracking evidence in criminal courts. It does not mean they will stop warrantlessly tracking people with GPS.
If the courts are going to get police to stop using planted GPS devices without a warrant then there will have to be a civil case. To me, this highlights a fundamental weakness in the exclusionary rule, and even a reason for getting rid of the exclusionary rule altogether.
Police shoot and kill drunk teenager who would not put down pocket knife
This blog tends to stay away from cases where the police have to subdue somebody who is acting crazy for whatever reason. Not surprisingly, there are a lot of excessive force civil claims against police for hurting or killing people who are acting crazy. Still, I am blogging the following case because I think that the result (that is, no qualified immunity) is surprising based on the facts (for example, teenager would not drop a knife for a period of minutes).
Case: GLENN v. WASHINGTON COUNTY, 10-35636 (9th Cir. 11-4-2011)
What happened: A teenager got drunk and wanted to ride his motorcycle. He argued with his parents destroyed property and held a pocket knife to his own throat. Police were called. When police got there they gave the drunken teenager a couple of minutes to drop the knife. He didn’t, so they shot him with several beanbag rounds, and, before the beanbag fire had even ceased, the police officers shot and killed the teenager with their guns.
Decision: Police may end up being liable here. Appeal court reverses district court holding of qualified immunity.
Comment: When the acting-crazy person had a knife, the police usually win in subsequent police4aqi lawsuits. I have no strong opinions about the factual reality and/or legal merits of this Glenn v. Washington County case. I am just blogging it for the surprising, to me, result at the appellate level.
Man records police in New Hampshire, wiretapping charges ensue
Via the Law Offices Of Martin & Hipple, court says that is a right to record police officers in public. Wiretapping charges dismissed. Cites Glik. Will be intersting to see if there is a civil suit.
Boundary line dispute, arrest ensues
Case: BIGHAM v. WHARTON TOWNSHIP (W.D.Pa. 10-27-2011)
What allegedly happened:
Plaintiffs further allege that on more than one occasion, Defendant Jordan, a Pennsylvania State Police Trooper, intentionally cited and illegally arrested Plaintiff Robert Bigham for various infractions directly related to [a] Property [involved in a boundary line and trespassing dispute with certain third parties].
Decision: Police may end up being liable here.
Comment: Basically a he-said / she-said case.
No qualified immunity for police officers who obtained no-knock search warrant for wrong apartment on basis of uncorroborated information – Lexology
Further: The police officers who executed the warrant did get qi (that is, no liability for the police).
South Bend police officer sued in federal court
South Bend police officer sued in federal court.
What allegedly happened: Police were chasing down some jaywalkers or loiterers. Plaintiff allowed the pursued parties inside his girlfriend’s home, but later denied entry to the police. Police broke in and arrested Plaintiff.
Uh huh
Two police women explaining about killing a man in his home:
Later that night, the women told investigators they had checked on the man in his apartment because his door was open, and it was cold. He was shaking, and his apartment was in disarray, they said. A glass coffee table was broken.
They asked him if he was OK. He calmly told them yes, McCrillis told detectives later. They asked him if he was alone. He placidly told them he was, she said.
But they weren’t comfortable leaving, the women said later.
“His attitude made me think that maybe somebody else was in the apartment and that he maybe just assaulted them,” McCrillis explained later.
The off-duty officers asked the as-yet unidentified man again if he was OK.
This time the man responded hotly, “What do you think is wrong with me?”
“When he got mouthy with me . . .
(emphasis added)
This story is also interesting because it look like the police may have lied about using pepperspray before resorting to gunfire on the occupant.
Sacto Knockdown, G. Young Era
Not Safe For Work, but still a CLASSIC ! ! ! NSFW because the video has swear words. I think this video should form the basis for one discussion-oriented class in every High School Civics Course. Over the years, the main controversy surrounding the video seems to be whether it is real or staged. This is well beside the point: Real or staged, it is pedagogically pitch-perfect:
Arrested for recording a policeman doing a search
From the Pixiq website, a man is arrested for recording a search of a vehicle (does not seem to be a vehicle owned by the citizen-recorder or anything like that). No civil suit yet, but watching the video, it struck me how nonsensical the “officer safety” pretext was in this situation. A commenter at Pixiq put it better than I could have:
He’s well out of handgun or knife range, way past anything remotely imaginable in a Tueller Drill, but the officer wants this “threat” to move out of sight but within rifle range? Yeah, good luck making that appear reasonable.
Man is arrested for being pushed by policeman on an escalator
Case: BARKSDALE v. COLAVITA (N.D.N.Y. 10-5-2011)
What allegedly happened: Policeman wanted to get past the Plaintiff on an escalator, in order to get to the scene of a domestic situation, elsewhere in the shopping mall which apparently did not involve the Plaintiff. So, the policeman shoved Plaintiff. In response to the shove, Plaintiff lost his balance and his arms moved. When his arms moved, they came into contact with the policeman. The police took down Plaintiff and arrested him for obstruction.
[P]laintiff claims he was pushed from behind and heard a male voice say “move, move,” and plaintiff “kind [of] lost [his] balance and put [his] hand back.” Plaintiff testified that he then heard someone say, numerous times, that you “don’t touch a police officer.” After plaintiff heard this statement, he turned his head over his left shoulder and saw Officer Colavita. Plaintiff testified that he said to himself, “Oh, I touched a police officer.” Plaintiff testified that Officer Colavita was “grabbing, tussling and screaming and yelling.” Plaintiff testified that he was then “taken down” by Officer Colavita, while they were still on the escalator.
Decision: No liability for the police here because police officers cannot be expected to determine the difference between being touched as an involuntary response to being shoved and more purposeful kinds of touching.
Not sure what the Court means here
Case: LEMMO v. CITY OF NEW YORK (E.D.N.Y. 9-30-2011)
Interesting quote:
As detailed below, the Court finds itself constrained by established summary judgment standards to allow certain of plaintiff’s excessive force claims to proceed to trial. But the Court nevertheless has misgivings. Handing [Plaintiff] even a partial summary judgment victory —
and his second in as many lawsuits — may serve to validate [Plaintiff]‘s apparent sense that, having learned the section 1983 ropes, he can continue, with impunity, to generate lawsuits by engaging in misconduct intended to provoke the police to overreact with arguably actionable excessive force. At the same time one cannot entirely discount [Plaintiff]‘s side of the matter; for all his nagging recidivism (the arrest leading to this lawsuit is his 40th), there may well be a degree of police targeting at play, and ordering a second set of officers to trial on [Plaintiff]‘s excessive force claims can hardly serve to douse any lurking retaliatory animus. The Court’s role on summary judgment, of course, is not to make credibility findings or to engage in speculation but merely to decide, as it has, that the parties’ fates with respect to certain claims lie with the jury. But as gatekeeper of its docket the Court cannot abdicate its duty to warn litigants that it is not blind to the apparent reality beneath the lawsuits and that enough is enough.
Burgers Allday
