Case Laws
Administrative
Garrity v. New Jersey, 385 U.S. 493 (1967)
The officers in this case were compelled (under the threat of termination) to answer questions regarding a ticket fixing scheme. The Court held that the statements were coerced under the threat of termination and could not be used against the officers in subsequent criminal proceedings.
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003)
Supervisory liability claims were brought against Attorney General Janet Reno, Assistant Attorney General Eric Holder and I.N.S. Commissioner, Doris Meissner, regarding the raid at the Gonzalez’ home to take custody of Elian Gonzalez. Plaintiffs alleged that the defendants personally directed and caused the paramilitary raid and had actual knowledge of and agreed to and approved of the raid in violation of their 4th Amendment Rights. The Court dismissed the claims finding that the vague and conclusory allegations did not establish supervisory liability. The Plaintiffs failed to allege that the defendants directed the agents on scene to spray the house with gas, break down the door with a battering ram, point guns at the occupants or damage property. The reasonable inference, which must be drawn from the factual allegations, is that the supervisory defendants ordered the execution of a valid search warrant with the exception that the officers would act in a lawful manner.
Groh v. Ramirez, 540 U.S. 551 (2004)
An ATF agent submitted an application for a search warrant that described in detail the types of weapons the agent sought to find at a particular ranch. Accompanying the application was a detailed affidavit that set forth the basis for believing that the weapons could be found at the specified location. He also presented a warrant form that he had completed. The magistrate signed the warrant. The search warrant form itself failed to identify any of the contraband or evidence that the agent sought to seize. Instead, in the blank which should have contained a list of the property to be seized, the agent typed a description of the house that was being searched. The warrant did not incorporate the affidavit by reference. The warrant was executed and no items were found at the ranch. A copy of the warrant, not including the affidavit (which had been sealed), was left with the resident. The Court held that the warrant was plainly invalid, as it failed to meet the 4th Amendment’s requirement that the items to be seized be “particularly described”. The Court also agreed that Agent Groh was not entitled to qualified immunity. According to the Court, no reasonable officer would believe that the warrant was valid, given its violation of the text of the 4th Amendment, nor would a reasonable officer ever presume that a warrantless search of a home was constitutional.
United States v. Camacho, 739 F.Supp. 1504 (S.D. FL 1990)
Officers were involved in a struggle in which the suspect received serious injuries (and ultimately died sometime later that evening). The sergeant arrived at the scene and briefly questioned all officers. He then ordered all the officers involved in the incident as either principals or witnesses to return to the station, in accordance with normal departmental policy. Several of the officers involved were charged with federal civil rights violations. They moved to suppress the statements made to the sergeant at the scene. The Court denied the motion, reviewing a number of factors and determining that the officers, at the time the statements were made, had not felt any compulsion to give a statement and waive their 5th Amendment privilege. The Court noted that “the mere fact that the Defendants may have felt compelled to give a statement at the scene to their colleagues and superiors as a normal part of their duties as police officers is not enough to invoke Garrity.” Here, the questions were directed at identifying what had happened, no one had accused the officers of any wrongdoing, no effort had been made to distinguish “suspect” and “witness” officers, neither internal affairs nor any criminal investigators were involved.
U.S. D.O.J., I.N.S. v. Federal Labor Relations Authority, 975 F.2d 218 (5th Cir. 1992)
A union proposal that agents be given up to forty-eight (48) hours to consult with union representative(s) before the agency could question agent(s) about a shooting incident interfered with management rights and was not a negotiable item under federal labor law.
Knock and Announce
Hudson v. Michigan, 547 U.S. 586 (2006)
With a warrant authorizing a search for weapons and drugs at Hudson’s home, police knocked and announced, waited three (3) to five (5) seconds, entered and searched. They found both drugs and weapons. Arguing that the police had not waited long enough to enter and had therefore violated the knock-and-announce rule, Hudson moved to suppress all the evidence. The Court held that the exclusionary rule is inapplicable to violations of the knock-and-announce rule, and the evidence is therefore admissible at trial. The Court reviewed the history of the exclusionary rule, finding that it is applied only when “the interest protected by the constitutional guarantee that has been violated would be served by suppression of the evidence obtained.” In this case, the protected interests (the protection of life and limb, one’s privacy and dignity that are impacted by the sudden entry of police), are interests that “have nothing to do with the seizure of evidence” and therefore the exclusionary rule is inapplicable. The Court also noted the significant progress made by police forces in deterring civil rights violations. According to Justice A. Scalia: “…we now have increasing evidence that police forces across the United States take the Constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers. Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime of internal discipline. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have deterrent effect.”
United States v. Banks, 540 U.S. 31 (2003)
Officers executing a warrant to search for cocaine in respondent Banks’ apartment knocked and announced their authority. The question is whether their fifteen (15) to twenty (20) second wait before a forcible entry satisfied the Fourth Amendment and 18 U.S.C. 3109. The Supreme Court upheld this entry and noted that the time period an officer must wait after knocking and announcing the service of a search warrant, but prior to forcing entry, depends on the totality of the circumstances in the particular case.
Warrantless Entry
Maryland v. Buie, 494 U.S. 325 (1990)
Obviously, circumstances do not always permit the time needed to obtain a search warrant. Even after a warrantless entry occurs, officers may only secure the premises and briefly look for other victims or accomplices. There is no crime scene search exception to the Fourth Amendment, and a warrant is required before searching further.
O’Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994)
A city was liable for a policy of routinely failing to obtain warrants in critical incidents, regardless of circumstances. The Chief of Police and an officer were entitled to qualified immunity for warrantless probes into the home of an armed man who was barricaded in his house for six (6) hours. However, the Court ruled that the warrantless probes were not justified by exigent circumstances when the man had not pointed a gun at anyone or threatened to use it.
Surveillance
United States v. Kyllo, 533 U.S. 27 (2001)
When using a device that is not in general public use (i.e. Thermovision), to explore details of a home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.
Snipers
Harris v. Horiuchi, 126 F.3d 1189 (9th Cir. 1997)
An FBI sniper at the Ruby Ridge standoff in Idaho during 1992 was both sued and criminally prosecuted after shooting and unintentionally killing the suspect’s wife. This case deals with the civil aspect of the incident. The FBI sniper who fired the fatal shot and thirteen (13) other federal agents were not entitled to qualified immunity. Specifically regarding the sniper, the Court stated that a law enforcement official may not kill a suspect(s) who does not pose an immediate threat to their safety or to the safety of others simply because they are armed. Whenever practicable, a warning must be given so that the suspect(s) may end his resistance or terminate his flight. A desire to prevent an armed suspect from entering the place he is residing because it may be difficult to persuade him to reemerge is insufficient cause to kill him.
K-9 Deployments
Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003)
The plaintiff in this case had received severe injuries from a police K-9 during his arrest that went as deep as the bone, in which an orthopedic surgeon had to repair. The plaintiff also claimed to suffer lingering effects from the K-9 bite. The Court held that the District Court’s judgment for the defendants (deputies) was proper. The deputy’s deployment of the K-9 in this instance did not violate the plaintiff’s 4th Amendment rights. Deadly force means force reasonably likely to kill. The risk of death from a K-9 bite is remote. The plaintiff was wanted not only for a misdemeanor traffic infraction (improper vehicle registration - license plate was registered to a different vehicle), but also for a prior felony. More importantly, the deputy knew that if the plaintiff’s defiant and evasive tendencies turned violent, and the plaintiff staged an ambush, the plaintiff would possess a strategic advantage over the deputies.
Hostage Situations
Lee v. Williams, 138 F.Supp.2d 748 (E.D. Va. 2001)
A deputy unintentionally shot a hostage during a shootout with armed robbers at a grocery store. The Court noted that the hostages were not being used as human shields by the robbers at the time, and were on the ground five (5) to seven (7) feet away from the nearest robber when the deputies opened fire. The deputy did not intend to shoot the hostage, but rather did so by accident. Therefore, the Court ruled that there was no Fourth Amendment seizure of the hostage.
Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992)
The county and Sheriff were not liable for the death of a courthouse hostage based on the Sheriff’s alleged order that the city SWAT and Hostage Negotiation Teams leave. The Sheriff replaced these entities with county personnel not trained for SWAT or hostage negotiations duties. However, the Court held that the Sheriff did not violate any constitutional rights of the hostage, finding that there is no constitutional duty to have a SWAT Team or trained hostage negotiator(s).
Bean Bags
Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003)
The Court said that the plaintiff should have thanked rather than sued the officers. True, he suffered injury at their hands, but in his depressed and irrational state, aggravated by the consumption of liquor, he might have done himself or others greater injury had they not intervened. Under the Constitution, the right question is how things appeared to “objectively reasonable” officers at the time of the events, not how they appear in the courtroom to a cross-section of the civilian community. Since Graham we have regularly treated the reasonableness of force as a legal issue, rather than an analog of civil negligence. Judges rather than juries determine what limits the Constitution places on official conduct. To say that law enforcement agents have acted within the bounds that the Constitution sets is not necessarily to say that they have acted wisely. States may choose to afford additional protections of personal safety and require the police to wait even when federal law permits them to act.
Deorle v. Rutherford, 263 F.3d 1106 (9th Cir. 2001)
An emotionally disturbed plaintiff was shot with a bean-bag round while advancing on an officer. The beanbag removed the plaintiff’s eye and left lead shot in his skull. The Court denied qualified immunity, but held that the use of the beanbag round was not deadly force. The Court stressed that the officer gave no warning and there was no immediate safety threat. Even when an emotionally disturbed individual is “acting out” and inviting officers to use deadly force to subdue he/she, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a criminal, but with a mentally ill person.
Noise Flash Diversionary Devices
Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004)
Officers obtained a search warrant for the apartment containing the fruits of an armed robbery that had occurred earlier. The SWAT Team was requested to secure the apartment before conducting the search. The officers executed the search in the early morning hours. After the officers announced their presence, an officer reached inside the door of the dark apartment and, without looking, tossed the flashbang near the front wall, several feet from the threshold of the door. As it turned out, a woman was sleeping on the floor, near the front wall where the flash-bang came to rest and as a result of the detonation, the woman suffered burns on her forearm. Shortly thereafter, the SWAT Team entered and secured the apartment, followed by the officers who conducted the search. A constitutional violation occurred because the officer’s use of force was constitutionally excessive. The officers had information leading them to believe that up to eight (8) people could be sleeping within the apartment. Without considering alternatives such as a controlled evacuation followed by a search, the officers deployed the explosive device in the room without looking or warning the occupants. Given the inherently dangerous nature of the device, it cannot be a reasonable use of force under the 4th Amendment to throw it “blind” into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury. Each officer involved in the search operation was an “integral participant” and therefore each defendant may be held liable for the 4th Amendment violation. However, the officers are entitled to qualified immunity because the 4th Amendment right to be free from dangerous flashbang devices under these circumstances was not clearly established. Also, the city did not deliberately fail to train or control its officers as to when and how to deploy flashbang devices.
Commonwealth v. Garner, 423 Mass. 672 N.E.2d 510 (1996)
Officers did not unreasonably execute warrant when an officer broke a window and dropped a flashbang device into the bedroom where a four (4) year old child was present, even though the officer failed to look into the bedroom first, as required by departmental policy.
Kirk v. Watkins, 1999 U.S. App. 12043 (1999) (unpublished)
Officers were entitled to qualified immunity after tossing a flashbang into a room while executing a no-knock search warrant. The device landed on a bed, injuring an occupant. This opinion is a good basis for research as it contains a thorough review of all reported cases from other jurisdictions addressing the utilization of distraction devices (flashbang).
Langford v. Superior Court, 43 Cal. 3d 21 (1987)
Officers may only deploy and detonate a device (i.e. flashbang) after they have seen fully into a targeted room.
Mitchell v. Kansas City, 2000 U.S. Dist. 19195 (D. Kan. 2000)
Because the officers had cause to believe that drugs and weapons were located within the home, the use of the diversionary device was reasonable to effectuate the safest entry possible. Accordingly, the Court found that any officer of reasonable competence would have made the same choice to utilize a distraction device in those circumstances. The Court also cautioned that the deployment of such devices should not be used a matter of routine.
United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997)
The District Court found that the agents knew that the suspect had a history of illegal drug trafficking, and had spent time in a federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The District Court obviously credited police testimony that the suspect’s lengthy pattern of criminal activity made them apprehensive. The Court recognized the ability to review the agent’s actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety.
OC/CS Spray or Gas
Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004)
The plaintiff, an individual with autism, had expired after allegedly being sat on and sprayed with pepper spray, even after he was immobilized by handcuffs and a hobbling device. The Court ruled that no reasonable officer would have continued to spray a chemical agent in the face of a handcuffed and hobbled mentally retarded arrestee, who was moving his/her head from side-to-side in an attempt to breathe, after the arrestee vomited several times. The court also concluded that no reasonable officer would continue to put pressure on that arrestee’s back after the arrestee was subdued by handcuffs, an ankle restraint, and a police officer holding the arrestee legs. The officers were not entitled to qualified immunity.
Customer Co. v. Sacramento, 10 Cal. 4th 368 (1995)
The Court denied an inverse condemnation claim under the state constitution after police fired tear gas into a store where a felony suspect had fled and barricaded himself. The Court ruled that the city was not liable under the state constitution, but might be liable under the state tort claims act. This case provides an overview of the case law, at the time, from other jurisdictions on liability for destroying property during law enforcement operations.
Federman v. County of Kern, 61 Fed.Appx. 438 (9th Cir. 2003)
A SWAT Team was called out to participate in an attempt to take Federman into custody for an involuntary psychiatric evaluation. After four (4) hours, they lured him to the window and sprayed him in the face with pepper gas. Five (5) officers knocked his door down, but when Federman fired two (2) shots, the SWAT Team retreated. The officers then fired three (3) rounds of tear gas, threw a flashbang and reentered the home. Federman dropped his gun, drew a knife, and began walking toward the officers. One fired four (4) rounds of wooden less-lethal munitions and three (3) others opened fire with standard ammunition, shooting Federman eighteen (18) times, fatally wounding him. The plaintiff’s claim that the aggressive entry to detain Federman for a psychiatric examination for odd, relatively, non-criminal behavior, provoked him to resist and turned a relatively minor situation into a fatal shooting. Applying the facts most favorable to the plaintiffs, one would have to find that the officers used excessive force as they alleged Federman was not a suspect and was attempting to surrender his knife when shot. Further, he had not threatened the SWAT Team until he was sprayed with pepper gas, and did not attempt to flee his home or threaten anyone, nor was there any immediate need to subdue him. Therefore, the SWAT Team entry into Federman’s home and the officers shooting at Federman, were unreasonable.
McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003)
The utilization of pepper spray against an individual who is a suspect in a violent felony was proportionate to the need for force. No constitutional requirement that officer provide an advance warning when the suspect did not immediately submit to officer’s authority.
Patel v. United States, 823 F. Supp. 696 (N.D. Cal. 1993)
An inverse condemnation claim was denied when officers executing a search and arrest warrant fired smoke grenades, tear gas canisters, percussion and flash grenades into a rented residence, causing a fire that destroyed the residence.
Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)
Use of pepper spray against an unarmed suspect of a minor crime, who was handcuffed at the time, was objectively unreasonable.
Use of Force
Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2003)
Cunningham, who had been involved in previous armed robberies and was observed while robbing a liquor store with an accomplice, accused the officers (LAPD Special Investigation Section) of using excessive force to deliberately create a situation that provoked him into firing (Danger created theory). The Court found that the jury in convicting Cunningham of felony murder found that Cunningham fired at the police during the commission of the robbery and that the conviction means that the jury must have concluded that at the moment Cunningham fired on the officers, he knew or should have known that they were police officers acting within the scope of their duties making it impossible for him to prove that they used excessive force when they “jammed” the get-away car. The officers firing of their weapons could not constitute excessive force since there was no break between Cunningham’s proactive act of firing at the police and their response.
Graham v. Connor, 490 U.S. 386 (1989)
The Supreme Court held that excessive force claims are properly analyzed under the 4th Amendment’s “objective reasonableness” standard. The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that law enforcement personnel are often forced to make spilt-second judgments, in circumstances that are tense, uncertain, and rapidly revolving, about the amount of force that is necessary in a particular situation.
Mace v. City of Palestine, 333 F.3d 621 (5th Cir. 2003)
The plaintiff was intoxicated, agitated, breaking windows, shouting, claimed to be a martial arts expert, and was brandishing an eighteen (19) to twenty (20) inch sword. The plaintiff did not respond to commands to drop the sword or to stop his movement toward the officers. He continued to make punching motions with the sword while no more than approximately ten (10) feet away from the officers. The Chief of Police then shot the plaintiff after he had raised his sword toward the officers. This event took place in the close quarters of a mobile home park, which limited the officer’s ability to retreat or keep the suspect from harming others in the area. The Court held it was not “objectively unreasonable” for an officer in that situation to believe that there was a serious danger to himself and the other officers present. Because the Chief of Police did not violate the plaintiff’s constitutional right to be free from excessive force, he was entitled to qualified immunity and the city was entitled to summary judgment.
Michigan v. Summers, 452 U.S. 692 (1981)
The Court ruled that a valid search warrant carries with it the implicit authority to detain occupants while the search is conducted.
Muehler v. Mena, 544 U.S. 93 (2005)
A search warrant, in regards to a drive-by-shooting by gang members, was obtained for a residence in which there were several gang members reported to be living. Because of the potential for danger, a SWAT Team was utilized to secure the premises before the search was conducted. In the early morning hours the SWAT Team made entry, found four (4) individuals sleeping, who were subsequently awakened, handcuffed and taken into the garage that had been converted into a bedroom for the duration of the search. While detained, an immigration agent who had accompanied the search team questioned Mena. Upon establishing her lawful residence in the United States, and on completion of the search, Mena was released. She later sued, alleging she was held with force greater that that which was reasonable and for a longer period than that which was reasonable. The Court ruled against that claim and stated that Mena’s detention was, under Michigan v. Summers, plainly permissible. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable. The Court also found the length of the handcuffed detention was reasonable. The duration of a detention can, of course, affect the balance of interests under Graham. However, the two (2) to three (3) hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests.
Tennessee v. Garner, 471 U.S. 1 (1985)
The Supreme Court ruled that the shooting of the suspect in this case, by the law enforcement officer, violated the 4th Amendment. Apprehension by the use of deadly force is considered a seizure which in turn is subject to the “reasonableness” requirement of the 4th Amendment. Law enforcement personnel my not seize an unarmed, non-dangerous suspect by shooting he/she dead. However, where the law enforcement agent has probable cause to believe that the suspect poses a threat of serious physical harm, either to the agent(s) themselves or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if a suspect threatens a law enforcement agent with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
United States v. Bennett, 329 F.3d 769 (10th Cir. 2003)
Officers detained the suspect with the use of a firearm and handcuffs during the execution of a search warrant for drugs where the suspect disobeyed their commands and ran into a garage. Police may use firearms and restraints (handcuffs) as part of a permissible detention whey they reasonably believe it is necessary for their safety and protection. It was reasonable to handcuff the suspect at gun point and the force used did not turn detention into arrest.
Training
Harris v. City of Canton, 489 U.S. 378 (1989)
Officers must be provided with training that is “adequate to the task(s)” that may have to be performed.
Popow v. City of Margate, 476 F. Supp. 1237 (1979)
Brief states that a “complete failure to train” by the agency occurred because the training given was too basic. Specifically, moving targets and photographic and simulation training did not occur. This decision mainly focused on deadly force decision-making or “shoot/don’t shoot” scenario training.
Russo v. City of Cincinnati, 953 F.2d 1038 (6th Cir. 1992)
The Court rejected the notion “that a municipality may shield itself from liability for failure to train its police officers in a given area simply by offering a course nominally covering the subject, regardless of how substandard the content and quality of that training is.”
Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993)
The 10th Circuit Court upheld a jury verdict that the City of Denver, Colorado, was deliberately indifferent to the rights of its citizens because of the inadequate deadly force training provided to its police officers.
Miscellaneous
Atkins v. City of Dallas & City of Carrollton, 1997 U.S. Dist. 4983 (N.D. Tex)
Officers executed a search warrant on a location that was no longer inhabited by the intended target. The target had stopped leasing the premises and moved out at least one (1) month prior. The location was now occupied by a husband and wife (who was seven (7) months pregnant), who were not the intended targets. The Court found that there was no failure to train or a custom and policy leading to mistaken entry.
Grider v. Louisville, 180 F.3d 739 (6th Cir. 1999)
The Court approved of various measures taken by a city in anticipation of a Klan rally, including separation with bike rack fencing, magnetometer searches, road closures, and parking bans.
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)
The defendant was a citizen of another country at the time he was arrested by police for a violent crime, gave an incriminating statement to the police and then sought to have that statement suppressed because he was not provided his “Rights” under the Vienna Convention on Consular Notification. The Supreme Court held that a state court did not have to exclude evidence admitted into court in violation of Article 36 of the Vienna Convention.
Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004)
It is a well established law that overly tight handcuffing can constitute excessive force, therefore, the granting of qualified immunity to deputies on a dentist’s claims that he was arrested without probable cause and wrongfully subjected to handcuffing so tight that the injuries required him to leave his profession, was improper.
Administrative
Garrity v. New Jersey, 385 U.S. 493 (1967)
The officers in this case were compelled (under the threat of termination) to answer questions regarding a ticket fixing scheme. The Court held that the statements were coerced under the threat of termination and could not be used against the officers in subsequent criminal proceedings.
Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003)
Supervisory liability claims were brought against Attorney General Janet Reno, Assistant Attorney General Eric Holder and I.N.S. Commissioner, Doris Meissner, regarding the raid at the Gonzalez’ home to take custody of Elian Gonzalez. Plaintiffs alleged that the defendants personally directed and caused the paramilitary raid and had actual knowledge of and agreed to and approved of the raid in violation of their 4th Amendment Rights. The Court dismissed the claims finding that the vague and conclusory allegations did not establish supervisory liability. The Plaintiffs failed to allege that the defendants directed the agents on scene to spray the house with gas, break down the door with a battering ram, point guns at the occupants or damage property. The reasonable inference, which must be drawn from the factual allegations, is that the supervisory defendants ordered the execution of a valid search warrant with the exception that the officers would act in a lawful manner.
Groh v. Ramirez, 540 U.S. 551 (2004)
An ATF agent submitted an application for a search warrant that described in detail the types of weapons the agent sought to find at a particular ranch. Accompanying the application was a detailed affidavit that set forth the basis for believing that the weapons could be found at the specified location. He also presented a warrant form that he had completed. The magistrate signed the warrant. The search warrant form itself failed to identify any of the contraband or evidence that the agent sought to seize. Instead, in the blank which should have contained a list of the property to be seized, the agent typed a description of the house that was being searched. The warrant did not incorporate the affidavit by reference. The warrant was executed and no items were found at the ranch. A copy of the warrant, not including the affidavit (which had been sealed), was left with the resident. The Court held that the warrant was plainly invalid, as it failed to meet the 4th Amendment’s requirement that the items to be seized be “particularly described”. The Court also agreed that Agent Groh was not entitled to qualified immunity. According to the Court, no reasonable officer would believe that the warrant was valid, given its violation of the text of the 4th Amendment, nor would a reasonable officer ever presume that a warrantless search of a home was constitutional.
United States v. Camacho, 739 F.Supp. 1504 (S.D. FL 1990)
Officers were involved in a struggle in which the suspect received serious injuries (and ultimately died sometime later that evening). The sergeant arrived at the scene and briefly questioned all officers. He then ordered all the officers involved in the incident as either principals or witnesses to return to the station, in accordance with normal departmental policy. Several of the officers involved were charged with federal civil rights violations. They moved to suppress the statements made to the sergeant at the scene. The Court denied the motion, reviewing a number of factors and determining that the officers, at the time the statements were made, had not felt any compulsion to give a statement and waive their 5th Amendment privilege. The Court noted that “the mere fact that the Defendants may have felt compelled to give a statement at the scene to their colleagues and superiors as a normal part of their duties as police officers is not enough to invoke Garrity.” Here, the questions were directed at identifying what had happened, no one had accused the officers of any wrongdoing, no effort had been made to distinguish “suspect” and “witness” officers, neither internal affairs nor any criminal investigators were involved.
U.S. D.O.J., I.N.S. v. Federal Labor Relations Authority, 975 F.2d 218 (5th Cir. 1992)
A union proposal that agents be given up to forty-eight (48) hours to consult with union representative(s) before the agency could question agent(s) about a shooting incident interfered with management rights and was not a negotiable item under federal labor law.
Knock and Announce
Hudson v. Michigan, 547 U.S. 586 (2006)
With a warrant authorizing a search for weapons and drugs at Hudson’s home, police knocked and announced, waited three (3) to five (5) seconds, entered and searched. They found both drugs and weapons. Arguing that the police had not waited long enough to enter and had therefore violated the knock-and-announce rule, Hudson moved to suppress all the evidence. The Court held that the exclusionary rule is inapplicable to violations of the knock-and-announce rule, and the evidence is therefore admissible at trial. The Court reviewed the history of the exclusionary rule, finding that it is applied only when “the interest protected by the constitutional guarantee that has been violated would be served by suppression of the evidence obtained.” In this case, the protected interests (the protection of life and limb, one’s privacy and dignity that are impacted by the sudden entry of police), are interests that “have nothing to do with the seizure of evidence” and therefore the exclusionary rule is inapplicable. The Court also noted the significant progress made by police forces in deterring civil rights violations. According to Justice A. Scalia: “…we now have increasing evidence that police forces across the United States take the Constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers. Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime of internal discipline. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have deterrent effect.”
United States v. Banks, 540 U.S. 31 (2003)
Officers executing a warrant to search for cocaine in respondent Banks’ apartment knocked and announced their authority. The question is whether their fifteen (15) to twenty (20) second wait before a forcible entry satisfied the Fourth Amendment and 18 U.S.C. 3109. The Supreme Court upheld this entry and noted that the time period an officer must wait after knocking and announcing the service of a search warrant, but prior to forcing entry, depends on the totality of the circumstances in the particular case.
Warrantless Entry
Maryland v. Buie, 494 U.S. 325 (1990)
Obviously, circumstances do not always permit the time needed to obtain a search warrant. Even after a warrantless entry occurs, officers may only secure the premises and briefly look for other victims or accomplices. There is no crime scene search exception to the Fourth Amendment, and a warrant is required before searching further.
O’Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994)
A city was liable for a policy of routinely failing to obtain warrants in critical incidents, regardless of circumstances. The Chief of Police and an officer were entitled to qualified immunity for warrantless probes into the home of an armed man who was barricaded in his house for six (6) hours. However, the Court ruled that the warrantless probes were not justified by exigent circumstances when the man had not pointed a gun at anyone or threatened to use it.
Surveillance
United States v. Kyllo, 533 U.S. 27 (2001)
When using a device that is not in general public use (i.e. Thermovision), to explore details of a home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.
Snipers
Harris v. Horiuchi, 126 F.3d 1189 (9th Cir. 1997)
An FBI sniper at the Ruby Ridge standoff in Idaho during 1992 was both sued and criminally prosecuted after shooting and unintentionally killing the suspect’s wife. This case deals with the civil aspect of the incident. The FBI sniper who fired the fatal shot and thirteen (13) other federal agents were not entitled to qualified immunity. Specifically regarding the sniper, the Court stated that a law enforcement official may not kill a suspect(s) who does not pose an immediate threat to their safety or to the safety of others simply because they are armed. Whenever practicable, a warning must be given so that the suspect(s) may end his resistance or terminate his flight. A desire to prevent an armed suspect from entering the place he is residing because it may be difficult to persuade him to reemerge is insufficient cause to kill him.
K-9 Deployments
Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003)
The plaintiff in this case had received severe injuries from a police K-9 during his arrest that went as deep as the bone, in which an orthopedic surgeon had to repair. The plaintiff also claimed to suffer lingering effects from the K-9 bite. The Court held that the District Court’s judgment for the defendants (deputies) was proper. The deputy’s deployment of the K-9 in this instance did not violate the plaintiff’s 4th Amendment rights. Deadly force means force reasonably likely to kill. The risk of death from a K-9 bite is remote. The plaintiff was wanted not only for a misdemeanor traffic infraction (improper vehicle registration - license plate was registered to a different vehicle), but also for a prior felony. More importantly, the deputy knew that if the plaintiff’s defiant and evasive tendencies turned violent, and the plaintiff staged an ambush, the plaintiff would possess a strategic advantage over the deputies.
Hostage Situations
Lee v. Williams, 138 F.Supp.2d 748 (E.D. Va. 2001)
A deputy unintentionally shot a hostage during a shootout with armed robbers at a grocery store. The Court noted that the hostages were not being used as human shields by the robbers at the time, and were on the ground five (5) to seven (7) feet away from the nearest robber when the deputies opened fire. The deputy did not intend to shoot the hostage, but rather did so by accident. Therefore, the Court ruled that there was no Fourth Amendment seizure of the hostage.
Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992)
The county and Sheriff were not liable for the death of a courthouse hostage based on the Sheriff’s alleged order that the city SWAT and Hostage Negotiation Teams leave. The Sheriff replaced these entities with county personnel not trained for SWAT or hostage negotiations duties. However, the Court held that the Sheriff did not violate any constitutional rights of the hostage, finding that there is no constitutional duty to have a SWAT Team or trained hostage negotiator(s).
Bean Bags
Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003)
The Court said that the plaintiff should have thanked rather than sued the officers. True, he suffered injury at their hands, but in his depressed and irrational state, aggravated by the consumption of liquor, he might have done himself or others greater injury had they not intervened. Under the Constitution, the right question is how things appeared to “objectively reasonable” officers at the time of the events, not how they appear in the courtroom to a cross-section of the civilian community. Since Graham we have regularly treated the reasonableness of force as a legal issue, rather than an analog of civil negligence. Judges rather than juries determine what limits the Constitution places on official conduct. To say that law enforcement agents have acted within the bounds that the Constitution sets is not necessarily to say that they have acted wisely. States may choose to afford additional protections of personal safety and require the police to wait even when federal law permits them to act.
Deorle v. Rutherford, 263 F.3d 1106 (9th Cir. 2001)
An emotionally disturbed plaintiff was shot with a bean-bag round while advancing on an officer. The beanbag removed the plaintiff’s eye and left lead shot in his skull. The Court denied qualified immunity, but held that the use of the beanbag round was not deadly force. The Court stressed that the officer gave no warning and there was no immediate safety threat. Even when an emotionally disturbed individual is “acting out” and inviting officers to use deadly force to subdue he/she, the governmental interest in using such force is diminished by the fact that the officers are confronted, not with a criminal, but with a mentally ill person.
Noise Flash Diversionary Devices
Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004)
Officers obtained a search warrant for the apartment containing the fruits of an armed robbery that had occurred earlier. The SWAT Team was requested to secure the apartment before conducting the search. The officers executed the search in the early morning hours. After the officers announced their presence, an officer reached inside the door of the dark apartment and, without looking, tossed the flashbang near the front wall, several feet from the threshold of the door. As it turned out, a woman was sleeping on the floor, near the front wall where the flash-bang came to rest and as a result of the detonation, the woman suffered burns on her forearm. Shortly thereafter, the SWAT Team entered and secured the apartment, followed by the officers who conducted the search. A constitutional violation occurred because the officer’s use of force was constitutionally excessive. The officers had information leading them to believe that up to eight (8) people could be sleeping within the apartment. Without considering alternatives such as a controlled evacuation followed by a search, the officers deployed the explosive device in the room without looking or warning the occupants. Given the inherently dangerous nature of the device, it cannot be a reasonable use of force under the 4th Amendment to throw it “blind” into a room occupied by innocent bystanders absent a strong governmental interest, careful consideration of alternatives and appropriate measures to reduce the risk of injury. Each officer involved in the search operation was an “integral participant” and therefore each defendant may be held liable for the 4th Amendment violation. However, the officers are entitled to qualified immunity because the 4th Amendment right to be free from dangerous flashbang devices under these circumstances was not clearly established. Also, the city did not deliberately fail to train or control its officers as to when and how to deploy flashbang devices.
Commonwealth v. Garner, 423 Mass. 672 N.E.2d 510 (1996)
Officers did not unreasonably execute warrant when an officer broke a window and dropped a flashbang device into the bedroom where a four (4) year old child was present, even though the officer failed to look into the bedroom first, as required by departmental policy.
Kirk v. Watkins, 1999 U.S. App. 12043 (1999) (unpublished)
Officers were entitled to qualified immunity after tossing a flashbang into a room while executing a no-knock search warrant. The device landed on a bed, injuring an occupant. This opinion is a good basis for research as it contains a thorough review of all reported cases from other jurisdictions addressing the utilization of distraction devices (flashbang).
Langford v. Superior Court, 43 Cal. 3d 21 (1987)
Officers may only deploy and detonate a device (i.e. flashbang) after they have seen fully into a targeted room.
Mitchell v. Kansas City, 2000 U.S. Dist. 19195 (D. Kan. 2000)
Because the officers had cause to believe that drugs and weapons were located within the home, the use of the diversionary device was reasonable to effectuate the safest entry possible. Accordingly, the Court found that any officer of reasonable competence would have made the same choice to utilize a distraction device in those circumstances. The Court also cautioned that the deployment of such devices should not be used a matter of routine.
United States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997)
The District Court found that the agents knew that the suspect had a history of illegal drug trafficking, and had spent time in a federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The District Court obviously credited police testimony that the suspect’s lengthy pattern of criminal activity made them apprehensive. The Court recognized the ability to review the agent’s actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety.
OC/CS Spray or Gas
Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004)
The plaintiff, an individual with autism, had expired after allegedly being sat on and sprayed with pepper spray, even after he was immobilized by handcuffs and a hobbling device. The Court ruled that no reasonable officer would have continued to spray a chemical agent in the face of a handcuffed and hobbled mentally retarded arrestee, who was moving his/her head from side-to-side in an attempt to breathe, after the arrestee vomited several times. The court also concluded that no reasonable officer would continue to put pressure on that arrestee’s back after the arrestee was subdued by handcuffs, an ankle restraint, and a police officer holding the arrestee legs. The officers were not entitled to qualified immunity.
Customer Co. v. Sacramento, 10 Cal. 4th 368 (1995)
The Court denied an inverse condemnation claim under the state constitution after police fired tear gas into a store where a felony suspect had fled and barricaded himself. The Court ruled that the city was not liable under the state constitution, but might be liable under the state tort claims act. This case provides an overview of the case law, at the time, from other jurisdictions on liability for destroying property during law enforcement operations.
Federman v. County of Kern, 61 Fed.Appx. 438 (9th Cir. 2003)
A SWAT Team was called out to participate in an attempt to take Federman into custody for an involuntary psychiatric evaluation. After four (4) hours, they lured him to the window and sprayed him in the face with pepper gas. Five (5) officers knocked his door down, but when Federman fired two (2) shots, the SWAT Team retreated. The officers then fired three (3) rounds of tear gas, threw a flashbang and reentered the home. Federman dropped his gun, drew a knife, and began walking toward the officers. One fired four (4) rounds of wooden less-lethal munitions and three (3) others opened fire with standard ammunition, shooting Federman eighteen (18) times, fatally wounding him. The plaintiff’s claim that the aggressive entry to detain Federman for a psychiatric examination for odd, relatively, non-criminal behavior, provoked him to resist and turned a relatively minor situation into a fatal shooting. Applying the facts most favorable to the plaintiffs, one would have to find that the officers used excessive force as they alleged Federman was not a suspect and was attempting to surrender his knife when shot. Further, he had not threatened the SWAT Team until he was sprayed with pepper gas, and did not attempt to flee his home or threaten anyone, nor was there any immediate need to subdue him. Therefore, the SWAT Team entry into Federman’s home and the officers shooting at Federman, were unreasonable.
McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003)
The utilization of pepper spray against an individual who is a suspect in a violent felony was proportionate to the need for force. No constitutional requirement that officer provide an advance warning when the suspect did not immediately submit to officer’s authority.
Patel v. United States, 823 F. Supp. 696 (N.D. Cal. 1993)
An inverse condemnation claim was denied when officers executing a search and arrest warrant fired smoke grenades, tear gas canisters, percussion and flash grenades into a rented residence, causing a fire that destroyed the residence.
Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002)
Use of pepper spray against an unarmed suspect of a minor crime, who was handcuffed at the time, was objectively unreasonable.
Use of Force
Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2003)
Cunningham, who had been involved in previous armed robberies and was observed while robbing a liquor store with an accomplice, accused the officers (LAPD Special Investigation Section) of using excessive force to deliberately create a situation that provoked him into firing (Danger created theory). The Court found that the jury in convicting Cunningham of felony murder found that Cunningham fired at the police during the commission of the robbery and that the conviction means that the jury must have concluded that at the moment Cunningham fired on the officers, he knew or should have known that they were police officers acting within the scope of their duties making it impossible for him to prove that they used excessive force when they “jammed” the get-away car. The officers firing of their weapons could not constitute excessive force since there was no break between Cunningham’s proactive act of firing at the police and their response.
Graham v. Connor, 490 U.S. 386 (1989)
The Supreme Court held that excessive force claims are properly analyzed under the 4th Amendment’s “objective reasonableness” standard. The right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that law enforcement personnel are often forced to make spilt-second judgments, in circumstances that are tense, uncertain, and rapidly revolving, about the amount of force that is necessary in a particular situation.
Mace v. City of Palestine, 333 F.3d 621 (5th Cir. 2003)
The plaintiff was intoxicated, agitated, breaking windows, shouting, claimed to be a martial arts expert, and was brandishing an eighteen (19) to twenty (20) inch sword. The plaintiff did not respond to commands to drop the sword or to stop his movement toward the officers. He continued to make punching motions with the sword while no more than approximately ten (10) feet away from the officers. The Chief of Police then shot the plaintiff after he had raised his sword toward the officers. This event took place in the close quarters of a mobile home park, which limited the officer’s ability to retreat or keep the suspect from harming others in the area. The Court held it was not “objectively unreasonable” for an officer in that situation to believe that there was a serious danger to himself and the other officers present. Because the Chief of Police did not violate the plaintiff’s constitutional right to be free from excessive force, he was entitled to qualified immunity and the city was entitled to summary judgment.
Michigan v. Summers, 452 U.S. 692 (1981)
The Court ruled that a valid search warrant carries with it the implicit authority to detain occupants while the search is conducted.
Muehler v. Mena, 544 U.S. 93 (2005)
A search warrant, in regards to a drive-by-shooting by gang members, was obtained for a residence in which there were several gang members reported to be living. Because of the potential for danger, a SWAT Team was utilized to secure the premises before the search was conducted. In the early morning hours the SWAT Team made entry, found four (4) individuals sleeping, who were subsequently awakened, handcuffed and taken into the garage that had been converted into a bedroom for the duration of the search. While detained, an immigration agent who had accompanied the search team questioned Mena. Upon establishing her lawful residence in the United States, and on completion of the search, Mena was released. She later sued, alleging she was held with force greater that that which was reasonable and for a longer period than that which was reasonable. The Court ruled against that claim and stated that Mena’s detention was, under Michigan v. Summers, plainly permissible. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable. The Court also found the length of the handcuffed detention was reasonable. The duration of a detention can, of course, affect the balance of interests under Graham. However, the two (2) to three (3) hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests.
Tennessee v. Garner, 471 U.S. 1 (1985)
The Supreme Court ruled that the shooting of the suspect in this case, by the law enforcement officer, violated the 4th Amendment. Apprehension by the use of deadly force is considered a seizure which in turn is subject to the “reasonableness” requirement of the 4th Amendment. Law enforcement personnel my not seize an unarmed, non-dangerous suspect by shooting he/she dead. However, where the law enforcement agent has probable cause to believe that the suspect poses a threat of serious physical harm, either to the agent(s) themselves or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if a suspect threatens a law enforcement agent with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
United States v. Bennett, 329 F.3d 769 (10th Cir. 2003)
Officers detained the suspect with the use of a firearm and handcuffs during the execution of a search warrant for drugs where the suspect disobeyed their commands and ran into a garage. Police may use firearms and restraints (handcuffs) as part of a permissible detention whey they reasonably believe it is necessary for their safety and protection. It was reasonable to handcuff the suspect at gun point and the force used did not turn detention into arrest.
Training
Harris v. City of Canton, 489 U.S. 378 (1989)
Officers must be provided with training that is “adequate to the task(s)” that may have to be performed.
Popow v. City of Margate, 476 F. Supp. 1237 (1979)
Brief states that a “complete failure to train” by the agency occurred because the training given was too basic. Specifically, moving targets and photographic and simulation training did not occur. This decision mainly focused on deadly force decision-making or “shoot/don’t shoot” scenario training.
Russo v. City of Cincinnati, 953 F.2d 1038 (6th Cir. 1992)
The Court rejected the notion “that a municipality may shield itself from liability for failure to train its police officers in a given area simply by offering a course nominally covering the subject, regardless of how substandard the content and quality of that training is.”
Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993)
The 10th Circuit Court upheld a jury verdict that the City of Denver, Colorado, was deliberately indifferent to the rights of its citizens because of the inadequate deadly force training provided to its police officers.
Miscellaneous
Atkins v. City of Dallas & City of Carrollton, 1997 U.S. Dist. 4983 (N.D. Tex)
Officers executed a search warrant on a location that was no longer inhabited by the intended target. The target had stopped leasing the premises and moved out at least one (1) month prior. The location was now occupied by a husband and wife (who was seven (7) months pregnant), who were not the intended targets. The Court found that there was no failure to train or a custom and policy leading to mistaken entry.
Grider v. Louisville, 180 F.3d 739 (6th Cir. 1999)
The Court approved of various measures taken by a city in anticipation of a Klan rally, including separation with bike rack fencing, magnetometer searches, road closures, and parking bans.
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)
The defendant was a citizen of another country at the time he was arrested by police for a violent crime, gave an incriminating statement to the police and then sought to have that statement suppressed because he was not provided his “Rights” under the Vienna Convention on Consular Notification. The Supreme Court held that a state court did not have to exclude evidence admitted into court in violation of Article 36 of the Vienna Convention.
Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004)
It is a well established law that overly tight handcuffing can constitute excessive force, therefore, the granting of qualified immunity to deputies on a dentist’s claims that he was arrested without probable cause and wrongfully subjected to handcuffing so tight that the injuries required him to leave his profession, was improper.