Recent Cases:

Blankenhorn v. City of Orange, 9th Cir. Case No. 04-55938, 5/8/2007.  Plaintiff, ordered not keep  out of OC shopping mall, returns, and is "gang-tackled" and hobbled by police because he  resisted.  District court grants summary judgment dismissal.  Held:  Reversed in part.  There is a  disputed fact issue, because jury could reasonably conclude that tackling without first warning was  a provocative act by police, justifying reasonable resistance by plaintiff.  "Considering the rapidity  of the officers' actions and the restrained nature of Blankenhorn's own response, a jury could  conclude Blankenhorn's resistance was reasonable under the circumstances."  Police chief's  failure to discipline officer properly in three prior incidents of excessive force could be the basis  for supervisory liability for knowingly condoning and ratifying those actions.  Opinion contains a  review of cases barring defendants' bogus claims of state law immunity, e.g., immunity for actions  during an investigation does not apply to arrest actions.

Weilburg v. Shapiro, 9th Cir. Case No. 05-15540, 6/1/07. Plaintiff alleges violation of his rights  due to failure to follow due process in extradition proceedings, and incarceration after statute of  limitations had lapsed on the charges. District Court of Arizona dismisses under Heck. Vacated  and remanded. Prevailing on his 1983 claim of unlawful extradition would not be inconsistent with  subsequent conviction. Unlawfully bringing a criminal defendant to court does not affect validity of  subsequent conviction. Section 1983 is a proper remedy for unlawful extradition and because 9th  Circuit case law saying so predates Heck and is not inconsistent with Heck's narrow language, it is  still controlling precedent. Court notes that on remand, plaintiff's unlawful imprisonment claim  should be dismissed without prejudice, because he may yet invalidate the conviction on SOL  grounds.

Erickson v. Pardus, US Supreme Court Case No. 06-7317, 6/4/2007.  Defendant jailer and doctor  take plaintiff prisoner off of hepatitis-C treatment for diagnosed condition, after syringe he had  been given was first missing, then found in trash modified for illegal use.  Plaintiff seeks damages  and injunction, alleging imminent danger and certainty of irreparable damage from denial of  needed treatment.  District court dismisses on ground he has failed to allege "substantial harm."   10th Circuit affirms, characterizing his allegations as merely "conclusory."  Vacated and  remanded.  Federal Rules require only a "short and plain statement" of pertinent claim, not  specific facts.  Court also failed to take plaintiff's allegations as true on motion to dismiss.   Furthermore, less stringent standards apply in pro se litigant's case. 

Dyer v. Lee, 11 Cir. Case No. 0614680, 6/5/07. Plaintiff, drunk, called boyfriend to drive her  home. Plaintiff alleges police approached and arrested her for drunk driving, despite the fact she  was not driving, cuffing her hands behind her back despite a preexisting injury, striking her  repeatedly when she resisted, using pepper spray on her in back of police vehicle after altercation  ended. Pleaded no contest to violent resisting, later changed to guilty when she violated  probation. She brought suit for use of excessive force, case dismissed by district court under  Heck. Reversed. Judgment in civil case that police used excessive force would not necessarily  and logically mean she was not guilty of crime alleged. Defendants' novel theory that such a civil  judgment would establish self-defense and innocence on resisting charge also fails: civil jury  would have to find that every single act of resistance was in self-defense in order for Heck to  apply.

Brendlin v. California, USSC case no. 06-8120, 6/18/07. Criminal defendant is passenger in car  that deputies pull over on pretext that they want to "confirm" a displayed temporary registration  matches the vehicle, find passenger is in violation of parole and in possession of drug  paraphernalia. California Supreme Court denies motion to suppress, holding passenger is not  seized because target of investigation was driver, and passenger in stopped vehicle is free to  walk away. Reversed. Target of investigation is irrelevant; and passenger would reasonably  believe he is not free to walk away. So passenger has basis to assert violation of 4th amendment.

Edgerly v. San Francisco, 9th Cir. Case No. 05-15382, 7/17/07. Plaintiff is arrested for being on  public housing property despite "no trespassing" signs, alleges he was then strip searched at  station, i.e., they made him pull his pants down to his ankles at examined his shorts. Trial court  dismisses on grounds there was probable cause for some sort of trespassing, and the station  search was not a strip search, and awards sanctions for action against station sergeant who did  not know of officers' conduct until afterwards. Reversed and remanded, except for sanctions.  Officers had to point to a specific trespassing statute that would apply; none does; rearrangement  of clothes to examine genitals or buttocks is a strip search. Because the arresting officer testified  that the arrest was in accord with discussions with successive supervisors, the housing project  arrest for merely being present was in accordance with a longstanding policy, raising Monell  liability, as did the strip search, because officers were instructed only to seek search authorization  for cavity searches. But discovery disclosed that the sergeant had no liability, and two motions for  reconsideration following his summary judgment dismissal were frivolous.

Callahan v. Millard County, 10th Cir. Case No. 06-4135, 7/16/07. Police learn from their  undercover informant that plaintiff has sold methedrine, they enter his home without a warrant, find  drugs and arrest. Trial court subsequently rules that the entry and search without a warrant were  unlawful, but dismisses on qualified immunity because another circuit had recognized a "consent  once removed" exception to the warrant requirement. Reversed. The exception in another circuit  wasn't enough to make the warrant requirement a clearly-recognized right.

Stevenson v. Carroll, 3rd Cir. Case No. 05-1088, 7/30/07. Sentenced to death, plaintiffs'  sentences were vacated. While awaiting re-sentencing, instead of being returned to general  population, they were moved to more restrictive Security Housing Unit for about 9 months without  a hearing or explanation, then re-sentenced to death. District Court dismissed their action for  monetary and injunctive relief. Vacated and remanded. More restrictive conditions can constitute  punishment, and lack of stated legitimate penal interest to support the transfer can establish  sufficient punitive intent. Denial of procedure accorded other inmates can support claim of denial  of due process.

Elliot v. Lator, 6th Cir. Case No. 06-2006, 8/10/07. Investigating robbery at gunpoint arising from  auto repair dispute, state trooper, based on year-old information that suspect "frequented"  address of plaintiffs' residence, filed affidavit stating suspect "sometimes stays" at the address  and obtained search warrant. After actual suspect's arrest, troopers nevertheless broke in and  trashed home occupied by plaintiffs and their three children, holding them at gunpoint proned out  on floor, but, finding no evidence of crime, filed no charges against them. In defense to plaintiffs'  summary judgment motion, defendants claimed qualified immunity, but filed no motion of their  own. Trial court granted summary judgment in part to plaintiffs. Defendants sought interlocutory  appeal, falsely stating that defendants had, in fact, filed a cross-motion for summary judgment.  Held: no jurisdiction for interlocutory appeal on qualified immunity grounds where defendants  failed to file a motion. Appeal dismissed, case remanded, but nothing about any award of attorney  fees.

Perez-Torres v. California, California Supreme Court Case No. S137346, 8/16/07. Parole agents  erroneously arrest plaintiff, who is not on parole, for parole violation and he is incarcerated 25  days due to mistaken ID, recordkeeping error and refusal to consider plaintiff's 5 inch height  difference from true parolee, or check available fingerprint records. Even after fingerprints  showed error at request of defendant's attorney, release was further delayed for 5 days. Plaintiff  sues, trial court grants summary judgment based on Cal. Gov. Code §845 immunity for any injury  resulting from prisoner release or parole decisions. Reversed. Court usefully reviews state  procedures for maintaining parole database, then holds that §845 immunizes the basic policy  decision to arrest for parole violation – not subsequent ministerial negligence in failing to release  once mistake should have been corrected.

Belcher v. Norton, 7th Cir. Case No. 06-3174, 8/15/2007. Couple try to retrieve property from  impounded vehicle without paying impound costs. Marshal orders them to sign vehicle over to  impound yard owner, or they will be arrested. They sign, then sue for false arrest. District court  dismisses, finding probable cause for the arrest because retrieving the property was a crime.  Reversed. State's lien statute covers vehicle only, not its contents, so no PC for arrest.

ABC v. DEF, 2nd Cir. Case No. 06-1362, 9/5/2007. While plaintiff federal prisoner is being  transferred between cells, defendant jailer seizes and loses his property. Plaintiff sues under  FTCA. District court dismisses based on FTCA liability exception for the detention of goods by a  law enforcement officer. Vacated and remanded. That exception only applies for goods detention  by officers acting like customs or excise officers.

Bruce v. Beary, 11th Cir. Case No. 06-15304, 9/6/2007. Based on report of improper VIN,  sheriff's department SWAT team conducts armed raid on auto repair shop as an "administrative  search"; holds employees at gunpoint all day; refuses to consider evidence of lawful ownership;  seizes business and personal property; retains it even after courts rule the search was unlawful.  Trial court dismisses §1983 claims on summary judgment. Vacated and remanded. Administrative  searches can be based on some suspicion of criminal activity, but must not be conducted like  warrant-based search (e.g., holding employees at gunpoint for ten hours); must be limited in  scope. This was a criminal raid.

Campbell v. Miller, 7th Cir. Case No. 06-1981, 8/28/2007. Officers cavity search plaintiff in view of  neighbors on suspicion of marijuana possession based on witness to suspected transaction. Jury  defenses. Reversed and remanded for entry of judgment. No reasonable jury could find public  cavity search was reasonable.

US v. Ellis, 7th Cir. Case No. 06-3137, 8/27/2007. Non-consensual, warrantless search of home  discloses cocaine, and on suppression motion is upheld as based on PC with exigent  circumstances. Reversed. PC of discovering officer was based on suspicious refusal to open  door, and denial he lived there, by defendant to other officers at another door of the house.  Collective knowledge doctrine only applies where the officers are in communication with each  other regarding the suspect. Refusal of entry alone cannot provide PC, otherwise requirement of  either warrant or consent would be meaningless.

US v. Grigg, 9th Cir. Case No. 06-30368, 8/22/2007. Police, responding to report of loud car  radio (which they do not hear themselves), search defendant's car, find unregistered firearm,  arrest, district court upholds search as consequent to a legitimate Terry stop. Reversed and  remanded. Terry stop must be based on reasonable suspicion of contemplated criminal conduct,  or past and completed felony or dangerous misdemeanor criminal conduct that appears likely of  repetition. Nor was there a reason to assume that the true criminal's identity could not be obtained  by interviewing more neighbors.

Inouye v. Kemna, 9th Cir. Case No. 06-15474, 9/7/2007. Parolee drug addict sues parole officer  for ordering him into religion-based recovery program. District court dismisses on qualified  immunity reasoning unconstitutionality of the order was not clearly established because a minority  of courts disagreed. Reversed. It was. "Lack of complete unanimity does not mean that a legal  principle has not been clearly established."

Rodis v. San Francisco 9th Cir. Case No. 05-15522, 8/28/2007. Police respond to drugstore  owner report of suspicious-looking $100 bill. Without investigating fraudulent intent, police arrest,  release plaintiff when Secret Service confirms bill was genuine. District court denies defendant's  summary judgment motion. Affirmed. Although probable cause does not require evidence of  every crime element, fraudulent intent is a core element of counterfeiting – police cannot arrest  anyone who may pass or possess a counterfeit bill.

POST v. LA TIMES, Cal. Supreme Court Case No. S134072, 8/27/2007. Under CPRA, LA  TIMES seeks information in possession of POST about officer names, hire and termination dates.  Trial court orders disclosure. POST appeals, asserting Penal Code §832 protects from CPRA  disclosure of materials in personnel files, even if not among the categories enumerated by §832.  Affirmed. Content, not location, determines confidentiality of records. Information about current  employment is not protected as "employment history". Officers' identities must be available to the  public because of the power they wield. "A mere assertion of possible endangerment" is  insufficient to justify nondisclosure.

IFPTE v. Contra Costa Newspapers, Cal. Supreme Court Case No. 134253, 8/27/07. Newspaper  seeks under CPRA salaries and identities of public officials, including police, receiving more than  $100,000 in pay per year. Over city's objection, newspaper obtains writ of mandate from trial  court. Affirmed. In view of public interest in these matters, this is not an unwarranted privacy  invasion. Individual case-by-case determination called for by police contradicts presumption of  openness. Salary is not sufficiently related to categories of information exempt from CPRA under  Penal Code §832.

Robertson v. Las Animas County Sheriff's Department, 10 Cir. Case No. 06-1027, 9/10/2007.  Deaf plaintiff is jailed. Jailers booking him note that he has difficulty hearing, and book as property  his hearing aid batteries. Later, he is unable to communicate with lawyer or participate in CCTV  hearing, because he can't hear what's going on. District court dismisses his ADA claim of jail  failure to accommodate his disability on summary judgment on ground that defendants were not  aware of his disability because he had not reported to them his inability to hear. Reversed.  Evidence raises material dispute, and even though at hearing charges were dismissed. His  inability to participate in the hearing is an injury.

Daubenmire v. City of Columbus, 6th Cir. Case No. 06-3461, 11/6/2007. Christian plaintiffs  express hostility to gays by burning, inter alia, a "rainbow flag" at a Gay Pride parade without a  permit for burning. City simply gave attempts to obtain such a permit the bureaucratic runaround.  District court denied standing for injunctive relief. Held: plaintiffs have standing, because the  red-tape nonsense was an injury in fact.

Dible v. Scholl, 8th Cir. Case No. 07-1013, 11/8/2007. Plaintiff, a prison inmate, is terminated from  a work-release program following hearing, notice of which referred to confidential information  alleging he had threatened and choked an unidentified person, without naming the time, place, or  any witnesses. Iowa state court reviewed the information in camera and affirmed. State appellate  court also affirmed. Federal District court denied defendants motion to dismiss claim of due  process violation and qualified immunity, granted plaintiff's cross-motion for summary judgment.  Held: affirmed.

Fisher v City of San Jose, 9th Cir. Case No. 04-16095, 11/20/2007. Plaintiff is in his apartment,  drinking, watching TV, and cleaning his guns. Security guard talks to him about noise from upstairs  neighbors, reports him to police, who, without warrant, engage in 12-hour standoff and finally take  him into custody. Jury finds for defendants, but court, on renewed motion, awards $1 nominal  damages and injunction to better train officers, finding unconstitutional warrantless arrest.  Affirmed. No exigency since standoff lasted 12 hours. Initial seizure at beginning of standoff was  lawful as exigent, but exigency dissipated over 12 hours. Somebody should have gotten a judge  on the phone to rubber stamp a warrant.

Young v. Selk, 8th Cir. Case No. 063883, 11/28/2007. Following threats from cellmate of a  different race that cellmate would do whatever he wanted and if plaintiff didn't like it he would have  to deal with cellmate and "his boys," plaintiff notified jailer of urgent need to be separated from the  "deranged" cellmate. Defendant jailers ignored the information. ("Go talk to somebody else.") The  same day, cellmate and friends poured a microwave-heated, scalding mixture of honey, hair gel,  tea, and water, on sleeping plaintiff's face, then beat him with a fist-sized rock. On summary  judgment motion for qualified immunity, defendants argued that plaintiff's information failed to  establish the existence of a substantial threat. Affirmed, statements, including tone and physically  threatening posture assumed while making them, established a substantial threat. Failure of jailers  to respond establishes basis for trial on claims that they were deliberately indifferent.

Tekle v. U.S., 9th Cir. Case No. 04-55026, 12/3/2007 (amended from 8/11/2006). IRS agents  suspect minor plaintiff's parents of drug trafficking. Mother is arrested after dropping 2 of 3  children off at school, she warns them 3rd child, then 11 years old (plaintiff) is still at home, and  that co-suspect husband has just had major heart surgery following a heart attack. Police arrest  plaintiff, barefoot and in t-shirt and shorts, as he is taking out trash, when he complies with  commands; they prone search, cuff, pull him up by cuffs, and have him sit on sidewalk while father  is arrested. Plaintiff's cuffs are removed, he is held at gunpoint sitting on a stool, allowed  monitored use of bathroom. Officers express profane ethnic slur about parents' country of origin,  Ethiopia ("fucking ugly country") and spit on his shoes. Several hours later another relative comes  to get plaintiff. District Court Judge Lew grants defendants summary judgment on grounds that  force was reasonable or right contours not clearly established, and no fact issue raised as to  reasonbleness of detention. Reversed. Plaintiff raised fact issues on Bivens claim for excessive  force for use of guns and unreasonable detention, in part for needless use of cuffs. FTCA liability  of U.S. is measured by state liability of a private individual (i.e., not of a government entity or  government-appointed law enforcement officer). Thus, arrest for a misdemeanor can only be  made if crime was actually committed in the presence of the arresting agent. Court rejects  argument offered by concurring Judge Kleinfeld that plaintiff "could run around the neighborhood  stirring up older youths and adults to interfere."

Casey v. City of Federal Heights, 10th Cir. Case No. 06-1426, 12/10/2007. Plaintiff fights traffic  ticket loses, goes to his truck to get money to pay the fine, but he's carrying the court file.  Returning to the courthouse he is tackled, beaten tasered by police. Plaintiff sues officers and  municipality under 1983. District Court dismisses everything on summary judgment. Reversed and  remanded. Officer's failure to tell plaintiff he was under arrest is significant. The arrest was  transformed from a routine encounter only by the officer's use of force. Standby officer may also  be liable for failure to intervene. "because excessive force jurisprudence requires an  all-things-considered inquiry with "careful attention to the facts and circumstances of each  particular case," Graham, 490 U.S. at 396, there will almost never be a previously published  opinion involving exactly the same circumstances. We cannot find qualified immunity wherever we  have a new fact pattern." Severity of force represented by Taser is measured by level of pain it  inflicts. Absence of warning is significant, as is fact plaintiff was a nonviolent offender.

Gilles v. Repicky, 2nd Cir. Case No. 06-1272-cv, 12/21/2007. Plaintiff is pulled over and detained  when detective is erroneously told by dispatcher that her van has been reported stolen, puts her in  handcuffs and continues to detain her for two hours, ordering her to return to police station with  him even after he learns of the error and neither a bomb nor a narcotics dog alert. District Court  dismisses 1983 action on grounds that "the fact that more time was taken than necessary in  connection with otherwise reasonable police conduct is not in itself a basis for a civil rights  violation." Vacated and remanded. Investigative detention must be no longer than necessary and  methods should be least intrusive reasonably available to verify or dispel suspicion in a short  period of time. No qualified immunity because arguable probable cause – which is a basis for  immunity – should not be confused with "almost" probable cause.

Holmes v. Village of Hoffman Estates, 7th Cir. Case No. 06-2759, 12/26/2007. Plaintiff is arrested  and beaten by two officers, then charged with resisting and battery. Jury acquits plaintiff on two  charges, hangs on third, court dismisses. Plaintiff sues under 1983 for false arrest, excessive  force, and malicious prosecution. Trial court denies both parties' continuance requests, but on trial  date, announces it won't proceed to trial without considering the issue of probable cause. "Taking  the hint," Defendants file for and are granted partial summary judgment when court simply accepts  officers' account as true on most of plaintiff's claims and ignored the others. Reversed in part and  remanded. Appellate acourt agrees that officer can claim probable cause on basis of fellow  officer saying plaintiff had already resisted prior to his arrival. However, because plaintiff was  prosecuted on multiple charges, each charge must be separately examined to see if there was  prosecution of an unsupported charge. Unlike arrest on various charges, any one of which may  ultimately validate the arrest despite the falseness of all the others, "when it comes to prosecution,  the number and nature of the charges matters: the accused must investigate and prepare a  defense to each charge, and as the list of charges lengthens (along with the sentence to which the  accused is exposed), the cost and psychic toll of the prosecution on the accused increase. … It is  reasonable to demand that each charge that a police officer elects to lodge against the accused  be supported by probable cause. Otherwise, police officers would be free to tack a variety of  baseless charges on to one valid charge with no risk of being held accountable for their excess."

Gilbert v. Cook, 7th Cir. Case No. 05-1728, 1/09/2008. Plaintiff prisoner, handcuffed and  shackled, is tripped by guards as they come up stairs to his cell. Then, after he extends his arms  through door hole for cuff removal, they bend his arm, separating it from his shoulder and  lacerating and scarring 6 inches of skin. A prison disciplinary board finds that he punched one of  the guards through the hole. Prisoner sues and is barred by the judge from presenting at trial  evidence of what happened after they came up the stairs, applying Heck v. Humphrey to the  prison administrative decision against him, then dismisses for lack of evidence. Reversed and  remanded. Heck does not bar litigation based on events after the crime from which the Heck bar  arises. "One major function of the due process
clause is to ensure that a wrongdoer's punishment comes after a hearing, rather than being meted  out on the spot by a public official's fists or weapons."

Richman v. Sheahan, 7th Cir. Case No. 07-1487, 1/07/2008. Plaintiff and his mother, who are  obese, loudly protest when judge continues their traffic ticket hearing to the next day. Plaintiff has  a history of public protest in this courthouse. When plaintiff refuses to leave the courtroom, the  judge finds him in contempt and sentences him to four months in jail. Deputies are summoned  and drag him from the podium which he is clinging to, then sit on his back, ignoring his protests  that he can't breathe, until he turns blue and dies. Mother sues under 4th and 8th amendments.  Trial court grants qualified immunity only on the 8th amendment claim. Reversed in part and  remanded as to 4th amendment claim. Obese decedent was frail with regard to positional  asphyxia, and there was no urgency – court was over for the day. Good review of authorities  establishing notice to police that positional asphyxia causes death. Good analysis of available tort  theories with multiple tortfeasors, including passive observers.

Beltran v. Santa Clara County, 9th Cir. Case No. 05-16976, 1/24/2008. County social workers  allegedly fabricate child abuse charges against parents, taking child into state custody pending  disposition of dependency petitions, confident that they are immune even from federal civil suit on  the basis of 9th Circuit precedent. Dependency petition is denied. Parents sue under 1983.  District court dismisses. Reversed and remanded, overruling erroneous precedent. 1983  immunity does not extend beyond traditional prosecutorial functions, which do not include  fabricating evidence.

Green v. Solano County Jail, 9th Cir. Case No. 06-16957, 1/22/2008. Pending trial, prisoner is  housed in maximum security, where he was denied group religious worship services. Prisoner  sues pro se, guard moves for summary judgment, which district court grants on recommendation  of magistrate. Reversed and remanded. Religious Land Use and Institutionalized Persons Act of  2000 (RLUIPA) bars government limitations on worship, even if they do not interfere with practices  that are "central" Sua sponte summary judgment dismissal of claims on the basis of arguments  not made by defendant do not accord plaintiff an opportunity to be heard.

Hammer v. Ashcroft, 7th Cir. Case No. 06-1750, 1/15/2008. Prisoner on death row is denied face  to face media contact following 60 Minutes interview with Tim McVeigh, sues under Bivens, district  court grants summary judgment on basis of legitimate penological interest. Circuit reverses and  remands. On remand, government objects to all discovery, files for summary judgment again.  Court refuses to provide counsel, or to continue summary judgment to allow discovery.  Government files declaration explaining that it doesn't want media to create "jailhouse celebrities."  Reversed and remanded. The restriction is content-based. The justification is pretextual. The  "penological interest that the prison officials invoke in court to justify the restriction must have  actually motivated them at the time they enacted or enforced the restriction." Defence to  administration officials about prison security needs does not extend to factual issue of true intent.  Denial of counsel merely restated the law; failed to address particulars of plaintiff's case.

Harris v. Bornhorst, 6th Cir. Case No. 06-3729, 1/14/2008. 12-year-old Black boy is suspected,  along with 4 people, of having kidnapped and murdered a 5-year-old girl. 12-year-old's parents are  told police want to give him a lie-detector test. Once he is under their control, they proceed to  extract a confession from him, which is inconsistent with facts and which he immediately recants.  Jury convicts him. Appellate court reverses, citing trial court failure to suppress the confession.  Prosecutor announces to press that she believes he is the murderer. Years later, criminal  defendant sues for malicious prosecution, then applies for enlistment in the US Marines, who  interview police. Police state that he is still a murder suspect "because there were no other  suspects," and that he has brought a civil rights action. Enlistment is denied. Trial court grants  summary judgment for defendant. Reversed and remanded. Arrest was made on instructions of  prosecutor, which is outside prosecutorial function. Trial court erred in considering any part of the  confession as reliable evidence supporting probable cause for arrest. Other supporting evidence  contained disputable fact issues. "This evidence indicates only that Harris and Devan, neighbors  who played together every day, once had a squabble; that a purported relative of Devan's, whose  precise identity is unknown, may have said that Harris had once threatened Devan; and that Harris  was seen on the day of the murder in an area that he frequented every day." As to the 1st  Amendment retaliation claim, causation is for the jury to decide, and may be proved  circumstantially. The prosecutor's "mention of Harris's civil suit during the course of her  conversation with the recruiters constitutes powerful circumstantial evidence that her other  remarks were motivated by retaliatory animus." Violation of Brady obligation to inform defense  counsel of reports of another potential suspect in the vicinity can also be a basis for malicious  prosecution. The press conference statement was a mixed statement of fact and opinion that  could give rise to a defamation claim.

Price v. Sery, 9th Cir. Case No. 06-35159, 1/22/2008. Suspect is shot to death seconds after  approach by police, still seatbelted in his car and unarmed. Decedent's family bring Monell claim.  District Court grants summary judgment in favor of defendants. Reversed in part and remanded.  Police chief's deposition statements interpreting written police raise a material issue of dispute,  even though the written policy itself does not. Statements of plaintiff's expert and Police  Assessment Resource Center report gave rise to triable issue concerning longstanding practice  in unconstitutionally impelementing the use of force policy.

Brown v. District of Columbia, DC Cir. Case No. 05-5320, 2/1/2008. Prisoner in good health, over  next 5 years, suffers various symptoms, which medical personnel ignore or wrongly diagnose,  resulting in jaundice and liver damage. District court dismisses on grounds that negligence does  not constitute 8th Amendment violation. Reversed and remanded. Failure to hospitalize when  doctor ordered it is deliberate indifference. Filing of numerous prisoner grievances also  establishes Monell violation. Dismissal for failure properly to serve individual defendant is  improper where pro se plaintiff did not receive proper notice of the impending sua sponte  dismissal.

Del Campo v. Kennedy, 9th Cir. Case No. 07-15048, 2/6/2008. Private company handles district  attorney's bad check diversion program as independent contractor. Plaintiff bounces check,  receives dunning letter on DA stationery, urging plaintiff to cover the check – and pay company's  fees – to avoid court prosecution. Plaintiff sues under Section 1983. Defendant private company  moves for dismissal, claiming 11th Amendment immunity. District court denies motion. Affirmed.  Private companies do not enjoy sovereign immunity despite state contracts.

Moore v. Indehar, 8th Cir. Case No. 08-4047, 2/1/2008. Plaintiff and another are shot at by a  passing car. Companion shoots back. Police car responds to sounds of gunfire, officers shoot,  hitting plaintiff as he runs away unarmed, falsely charge him with shooting at them. He is jailed a  month until charges are dropped for lack of evidence. Plaintiff sues. District court grants  defendants' motion for summary judgment on grounds of qualified immunity. Reversed and  remanded. Although bystanders struck by errant gunfire cannot bring a 4th Amendment claim,  plaintiff has evidence to dispute the officers' claim they were shooting at plaintiff's companion,  including the fact that the officer "aimed his gun and fired with his handgun pointed at" plaintiff, and  that all males in the vicinity were cuffed, indicating the officer was intending to seize plaintiff as well  during the incident.

Solis v. County of Los Angeles, 9th Cir. Case No. 05-56637, 1/29/2008. Prisoner, former Mexican  gangmember, seeks segregated housing, fearing attack, but refuses to be an informant, so prison  refuses him segregation, instead puts him in gang module. Prisoner sues, court denies appointed  counsel, grants partial summary judgment, denies jury trial for failure to file jury instructions, finds  for defendants. Reversed and remanded. Court cannot grant summary judgment against pro per  plaintiff without clear notification of the consequences of summary judgment. Although jury trial  can be waived by failure to demand, it may not be withdrawn other than by written stipulation – so  plaintiff did not "waive" jury trial by failing to file jury instructions. Because a reasonable jury could  have found for plaintiff, denial of jury trial was not harmless error.

Phillips v. County of Allegheny, 3rd Cir. Case No. 06-2869, 2/5/2008. 911 dispatcher seeks  addresses of ex-girlfriend and her current boyfriend in 911 databases. Supervisor learns of these  actions but merely suspends dispatcher for a week, during which he finally gets the addresses,  then supervisor warns only local police – not police in area of residences discovered by  dispatcher – after ultimately firing him. Dispatcher then kills ex-girlfriend, her sister, and her current  boyfriend. Surviving family sues under Section 1983. District court dismisses the action.  Reversed and remanded. Appellate Court analyzes US Supreme Court Twombly decision altering  standards for complaint pleadings. Although plaintiff's complaint failed to plead affirmative  misconduct by the entity, as required by a state-created danger action, the court was required to  offer an opportunity for amendment – plaintiff was not required to request leave to amend.   Foreseeability requirement does not mean a history of violence by the third-party actor. Extended  time in which to act lowers the requirements to satisfy a "shocked the conscience" level of  culpability. Here, deliberate indifference would be sufficient. As foreseeable victims of the third  party, decedents had a "special relationship" sufficient to bring this action. Plaintiff should also be  permitted to amend her equal protection "class of one" claim if possible to show that while others  were permitted access to personal 911 information for legitimate purposes, decedents'  information was accessed by defendants for improper purposes.

Alvarez v. Hill, 9th Cir. Case No. 06-35068, 3/13/2008. Prisoner claims interference with Native  American religious practice, asserting more favorable standard of Religious Land Use and  Institutionalized Persons Act of 2000 42 U.S.C. § 2000cc-1 than under only the First Amendment.  District court grants SJ dismissal, refusing to apply the cited standard. Reversed and remanded.  Defendants' argument that he failed to specifically name the Act in his complaint fails. Federal  complaints plead claims, not causes of action or statutes or legal theories. Although First  Amendment supports prison restrictions on religious practice that are "reasonably related to  legitimate penological interests", RLUIP Act requires that they "further a compelling governmental  interest…by the least restrictive means."

Brown v. Fortner, 8th Cir. Case No. 06-3743, 3/4/2008. Prisoner is injured when transport van  officer denies request to fasten seatbelts and stop driving recklessly, resulting in collision and  injuries. District court denies qualified immunity on SJ. Affirmed.

USA v. Castellanos, 8th Cir. Case No. 07-1535, 3/12/2008. Criminal defendant allows officers to  enter his trailer but expressly denies permission to search further. District court denies  suppression motion on drug charges. Reversed. Consent to enter did not extend to search of  home.

Floyd v. City of Detroit, 6th Cir. Case No. 06-2441, 3/6/2008. Unarmed plaintiff suspect is shot in  the chest by police. District court denies qualified immunity on SJ. Affirmed. Shooting at suspect  and missing is still a seizure. Failure to intervene in fellow officer's excessive force incurs liability,  especially when also shooting encouraged the use of force.

Irving v. Dormire, 8th Cir. Case No. 07-1591, 3/7/2008. Prison guards retaliate against plaintiff for  pending lawsuit against them by allowing fellow prisoner into cell to beat him in the face; by telling  him they were going to kill him; by providing fellow prisoner with razor to kill him; by falsely telling  fellow prisoners and offering cash and cigarettes to induce fellow prisoners to kill him. District  court denies SJ qualified immunity. Affirmed in part. Face injury resulting in two months' breathing  difficulty is more than a de minimis injury. Death results resulting in no actual injury are still  actionable: "a prisoner retains at least the right to be free from the terror of instant and unexpected  death at the whim of his . . . custodians." This principle applies to efforts to induce other inmates  to kill plaintiff. Decisions in other circuits consistently find liability for labeling an inmate a "snitch."  But where guard merely made one death threat, or was among a group of guards threatening  plaintiff's life – that's not enough to incur liability. No indication these threats were "credible."

Mondragon v. Thompson, 10th Cir. Case No. 06-2358, 3/10/2008. Corrections officer with animus  against plaintiff because plaintiff's wife had a daughter from a prior relationship with officer  generates bogus arrest warrant alleging abuse of the daughter causing plaintiff's 3-month  incarceration. District court dismisses because complaint is filed exactly three years after  plaintiff's habeas corpus release, on grounds that action arose more than 3 years (SOL) prior to  complaint filing. Reversed and remanded. Supreme Court's Kato ruling holds that a 4th  amendment SOL period begins only after plaintiff's release, or when his continued detention is  pursuant to legal process. Due Process/ Malicious Prosecution claim – which requires "favorable  termination" - begins with institution of lawful process and ends with the favorable termination,  which is when Due Process/ Malicious Prosecution SOL period begins.

Pierce v. County of Orange, 9th Cir. Case No. 05-55829, 3/24/2008. Prisoners allege violation of  standing orders establishing standards for pretrial detention, as well as depriving them of  constitutional rights, and equal protection and rights under the ADA. Following bench trial, district  court dismisses all claims, holds standing orders are no longer necessary. Reversed in part.  Failure to provide equal access for disabled prisoners to bathrooms and other facilities and  programs causing e.g., bed sores and bladder infections, did not cause merely de minimis injury.  Court cannot rely on assumption that jail will "move toward" ADA compliance, especially given  County's 16-year record of non-compliance. However, the equal-protection claim fails because  plaintiffs did not show, e.g., "that the County accommodated the special needs of any other group  with regard to toilet or sink access."

Stufflebaum v. Harris, 8th Cir. Case No. 06-4046, 4/4/2008. Police pull over vehicle for driving on  dealer plates, request driver's grandfather to ID himself. He angrily refuses. Police arrest for  obstructing. Criminal case is prosecution reject. Grandfather sues. District court dismisses.  Reversed. "An officer may not arrest a suspect
for failure to identify himself if the request for identification is not reasonably related to the  circumstances justifying the stop." Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 188 (2004),  distinguishing Brown v. Texas, 443 U.S. 47, 52-53 (1979).

Hardrick v. City of Bolingbrook,  7th Cir. Case No. 06-4208, 4/10/2008. Plaintiff pleads to resisting  by "struggling while being handcuffed," then sues under 1983 for use of excessive force (which  broke his wrist) while he peaceably awaited arrest, district court dismisses on summary judgment  under Heck. Reversed and remanded. Just because plaintiff struggled at one point does not  preclude his later peaceably awaiting arrest.

York v. City of Las Cruces, 10th Cir. Case No. 07-2150, 4/22/2008. Driver says "bitch" when  female driver zips into wanted parking lot space; nearby New Mexico officer decides to arrest him  for disturbing the peace; following heated argument over legality of using the word "bitch" in  public, officer, after conferring with fellow officer about decision to arrest, but without verbally  seeking compliance from plaintiff, suddenly uses arm bar to throw driver to concrete, injuring him.  District court denies qualified immunity. Affirmed. Use of word did not qualify as disturbing the  peace for obvious reasons. Attempt to rely on Supreme Court's hideous ruling in Scott fails:  officer's partial audiorecording of the incident did not "blatantly contradict" plaintiff's version.  District court properly declined to apply police defendants' favorite passage from Graham case:  this was not an instance where court is using "20/20 hindsight" against police who had to make a  "split-second" choice, etc., etc., because here, officers had time to confer about the arrest  decision.

Davignon v. Hodgson, 1st Cir. Case No. 06-1191, 4/24/08. Plaintiff jail guards are active in union  when pay increase is sought at renewal of contract; sheriffs trumps up charges and suspends  them. Guards sue, jury finds in their favor, Sheriff appeals. Affirmed. Appellate court reviews  arguments pertinent to First Amendment employer retaliation claims.

Orem v. Rephann, 4th Cir. Case No. 07-1696, 4/28/2008. Plaintiff is served with a protective order  and then ransacks husband's office. He is a former deputy. She realizes she will not be able to  see her son for 6 months, returns to her house, drives her car into a ditch and "charges" at a  police officer. Officers put her in cuffs and ankle restraints and place her in the rear of patrol car.  En route to jail she curses the police, threatens to sue, bangs her head against window and  "loosens" the ankle restraint. Transport officers subject her to two Taser bursts totalling 1.5  seconds, one of which causes a scar ["You need to respect us. Right now you're not."]. She does  sue, under Section 1983. District court denies defendants' motion for summary judgment.  Affirmed on interlocutory appeal.  Applying 14th amendment due process standard to this  post-seizure, pretrial detention, court rejects justification of use to protect the prisoner from  herself; usefully cites Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) ("'torment without marks'  was the sort of excessive force the Supreme Court was concerned with in deciding prisoner  excessive force claims under the Eighth Amendment").

Archuleta v. Wagner, 10th Cir. Case No. 07-1108, 4/29/2008. Erroneous warrant is issued in  plaintiff's name on a charge of domestic abuse. Two months later, plaintiff is arrested on the  warrant, jailed and frisked. Police determine discover the error and know that the warrant is not for  the arrest of plaintiff. Nevertheless, they proceed to strip search her while taunting her. She sues.  District court denies qualified immunity. Affirmed. Fourth Amendment analysis is based on facts of  incident, not merely on arresting charge. No legitimate concern for smuggling of drugs or  weapons into jail, because this was a pre-booking search, she was not the suspect, and had  already been patted down. Arrest warrant alone cannot justify strip search. Domestic violence  charge elements are not enough to justify concern for weapons, despite word "violence."

Gibson v. Moskowitz, 6th Cir. Case No. 07-1074/1198, 4/29/2008. Prisoner has psychiatric  problems, is transferred to room constantly maintained at 90+ degrees, where "medical team"  ignores obvious symptoms of dehydration, exacerbated by prescribed medication, and he dies.  Jury awards $1.5 million, defendants appeal. Affirmed. Prisoners' physical and mental anguish  justified the award. Punitive damages were supported by the evidence: standards for "subjective  recklessness" (punitives) and "deliberate indifference" (8th Amendment) meet the same test  under Farmer v. Brennan (USSC). Punitive award of $3 million is well within 1 to 10 limit for  compensatory to punitives ratio. Evidence of defendant doctor referring to another patient by a  "derogatory name" on medical chart properly came in for purposes of impeachment. Admission of  decedent's positive character features did not justify admission of his conviction for sexual assault  of a minor and court properly excluded it. Reversed in part on grounds of error in allocating  damages with regard to state medical malpractice caps.

Torres v. Madera, 9th Cir. Case No. 05-16762, 5/5/2008. Deputy intends to taser prisoner sitting  cuffed in back of patrol car; uses firearm instead, killing her. Family sues under 1983, court  dismisses on summary judgment reasoning no seizure occurs unless force is intentionally used.  Reversed in part. 9th Circuit follows doctrine of "continuing seizure" rule (circuits are split): so long  as subject is in custody, 4th Amendment applies. As to reasonableness of error, 5 factors apply.  District court didn't get that far. Remanded.

Harden-Bey v. Rutter, 6th Cir. Case No. 06-1473,  5/12/2008. Muslim prisoner is transferred to  long-term, indefinite ad seg on grounds that he is fostering crimes and planning an uprising. He  sues under §1983. District court dismisses on grounds that ad seg is not an "atypical and  significant" hardship. Reversed. Duration of restricted confinement, here 3+ years and indefinite,  may qualify otherwise unressable conditions as "atypical and significant" hardship. Remanded for  consideration of due process claim re hearing.

Walker v. Sheahan, 7th Cir. Case No.  07-2817,  5/14/2008. 8-year pretrial jail detainee alleges  repeated beatings and denials of medical treatment. District Court dismisses 1983 action for lack  of evidence and failure to follow grievance procedure. Reversed in part. Evidence, including 3  witnesses and medical reports, did raise triable issues. Defendants admitted that general orders  about 15-day grievance deadline were not available to detainees. Failure of social worker to  process grievance was also supported by evidence. Defendants waived SOL defense by failing  to plead it. Court improperly dismissed retaliation claims on insufficient evidence grounds sua  sponte without giving plaintiff notice and an opportunity to respond.

Reese v. Herbert, 11th Cir. Case No. 04-14231, 5/16/2008. Owner of housing complex angers  police by asking them to move their vehicles once domestic violence suspect is in custody, they  throw him to the ground, beat, kick, and pepper-spray him. District court dismisses 1983 action on  summary judgment. Reversed in part. Court, after admitting plaintiff's affidavits, erred by finding  them unpersuasive due to plaintiff's failure to cite to them accurately and specifically, thus not  construing evidence in favor of nonmoving party. Police order to leave area beyond actual police  operations was not a lawful order providing basis for arrest when disobeyed.

Yount v. City of Sacramento, California Supreme Court Case No. S139762, 5/19/2008. DUI  suspect in handcuffs and hobble restraint struggles and threatens officers, and one shoots him in  the buttocks, claiming he erroneously thought he was using a Taser. Suspect later pleads to  resisting, then sues under 1983 and battery.  Court dismisses under Heck and Susag  (Heck-analagous California authority for state claims). Appellate court reverses, reasoning that  plaintiff's conviction could be sustained with regard to one of his acts of resistance that was not  the basis for the use of force, thus civil liability could be found without impugning the criminal  conviction. Reversed in part. Use of deadly force was not justified,  However, Heck bars an action  that would impugn any part of the criminal conviction, and plaintiff was convicted for the totality of  his acts prior to the shooting.  If defendant in pleading wants to preserve a civil rights action, they  must narrow the scope of the plea. Thus, plaintiff cannot proceed with a claim that any use of  force was excessive – only his claim that deadly use of force was unlawful.

Brand v. Motley, 6th Cir.  Case No. 06-6362, 5/23/2008. Black inmate's request to share cell with  white is denied expressly on racial grounds ("it's harder to do") and his §1983 action is dismissed  as frivolous on grounds that inmate lacks the right to be placed in the cell of his choice. Vacated  and remanded. Prisoner need only show that he was discriminated against on basis of  membership in a protected class. Nor was complaint date-barred: prison cannot delay mailing of  complaint to courthouse and engineer late-filing; "prison mailbox rule" means complaint is  deemed filed as of date of signing by complainant.

Beck v. City of Upland, 9th Cir. Case No.  05-56901, 5/28/2008. Police obtain warrant on basis of  prosecutor complaint and officer declaration, and arrest plaintiff, after he confronts them over his  claims of unfair treatment by city in awarding contracts. Criminal court finds no PC for the arrest  and dismisses the charges – felony threats against officers. Plaintiff's 1983 action is dismissed  on grounds of prosecutorial intervention and qualified immunity. Reversed and remanded for trial.  Retaliatory motive and lack of PC are enough to rebut presumption of prosecutorial independence  on both 4th amendment, and 1st amendment retaliatory claims, when DA asserts work product  privilege on decision to charge as felony after officer circled "felony" on charging sheet. The  evidence of malice was enough to preclude reliance by the officers on state law immunity for an  arrest on the basis of a warrant valid on its face.

Walker v. Bowersox,  8th Cir. Case No. 06-3118, 5/30/2008. In separate incidents, prisoner  refuses cell mate, is held restrained to bench for 24 hours; refuses officer order to surrender food  tray and is pepper-sprayed. District court dismisses action on summary judgment. Reversed in  part. Defendants failed to explain need for restraint bench after prisoner submitted to handcuffs,  to deny him access to bathroom, water, food, pain medication, or to exacerbate preexisting back  injury by forcing him to sit upright. Defendants also failed to justify repeated use of "super-soaker"  riot pepper-spray application, without warning, when he refused repeated orders to provide  cell-mate's tray, which soaked entire cell and bedding with spray, and then denied him shower,  clean clothes, or bedding, for three days.

ASOCIACIÓN DE PERIODISTAS DE PUERTO RICO v. MUELLER, 1st Cir. case no. 07-2196,  http://laws.findlaw.com/1st/072196.html, 6/18/2008. FBI does warrant search on home of  well-known Puerto Rican political activist. Media arrives during the search. Media interview the  activist at the location. FBI agents order them to leave, then, as they are complying, attack media  with pepper spray and batons. Plaintiffs sue under 1st and 4th amendments District court grants  summary judgment for defendants. Reversed in part, as to 4th amendment excessive force  claims. As to 1st amendment, media had no right to be on the private premises, a condominium  complex, therefore ejection could not violate 1st amendment (court ignores issue of excessive  force retaliation against complying media for 1st amendment exercise). As to 4th amendment,  court erred in adopting defendants' contested version of the events.

Cuevas v. De Roco, 9th Cir. Case No. 06-15403, 6/27/2008. Despite numerous documents and  records showing that parole violator does not live at his "emergency contact" phone number  address, deputies decide to try and arrest him there through a "knock and talk" contact. Even the  parolee'     s former friends no longer live there. The residents are perfect strangers to the parolee.  Deputy who has concealed under clothing indications that he is a law enforcement officer  approaches the front door, while uniformed officers cover the back. Deputy knocks, says, "State  Parole." Resident foolishly opens the door a crack, then tries to close it again. Deputies force  entry, handcuff resident, arrest him for resisting. The charges are dropped. Residents sue, court  dismisses on SJ reasoning there was no constitutional violation. Although a parolee's residence  may be searched without a warrant, agents must have PC to believe the parolee is in fact a  resident. Fact that resident supposedly "resembled" the parolee does not establish PC that he  was a resident there: coming to the door was not enough. Good review distinguishing cases  establishing such PC.

Juan Johnson v. District of Columbia, DC Cir. Case No. 06-7136, 6/20/2008. Plaintiff, officer out  of uniform, wearing badge around neck, checks mail outside his apartment. Drug sales suspect  fleeing police tricks him into letting him into the building, claiming robbers are pursuing him. When  police arrive, and plaintiff complies with orders to lie face down, police kick and stomp him until  they see his badge. Plaintiff is granted paid leave for "on-duty" physical and psychological injuries.  Plaintiff sues, trial court grants summary judgment qualified immunity. Reversed and remanded.  Kicking a compliant, prostrate suspect in the groin is not justified by legitimate state interests.

Kirby v. Duva, 6th Cir. Case No. 06-1976, 6/27/2008. Police stop suspect's vehicle on basis of  warrant, and hem it in with their vehicles. When suspect tries to slowly drive around the parked  police vehicles to escape, they shoot him to death, claiming he was trying to ram and kill them.  Civilian motorist witness, and reconstruction experts, dispute police version of events. Trial court  denies summary judgment qualified immunity. Defendants appeal, arguing that even under  plaintiff's version, they were entitled to QI. Affirmed. Critical was the time – up to 2 minutes – that  police had to make a judgment before they began firing. Where officer unreasonably places  himself in harm's way, deadly force is unlawful. Deadly force may not be used against  non-dangerous fleeing felons.

Lanman v. Hinson, 6th Cir. Case No. 06-2263, 6/17/2008. Volunatrily-admitted mental patient  attacks hospital staff, is restrained and medicated, stops breathing, and dies 17 days later. Fellow  patient observes staff with knee in decedent's back, and his legs being bent back into "hog-tie"  type position, calling for help because he can't breathe. Trial court denies SJ QI, and defendants  appeal, arguing that higher 14th amendment standard applies. Affirmed in part. Court concludes  14th amendment applies, analyzes bases and standards for 4th, 8th, and 14th amendment claims.  Where force is used to transform voluntary to involuntary confinement, a seizure occurs and 4th  amendment applies. Here, however, force was used only to administer medical treatment, so 14th  amendment standard applies. Court examines each staff member's alleged conduct to determine  availability to them of QI.

Leary v. Livingston County, 6th Cir. Case No. 06-2603/4, 6/10/2008. Prisoner is arrested for  arresting a 9-year-old girl. One officer calls him a "sick prick" and strikes him on the back of the  neck, another officer warns him other prisoners will retaliate, and informs other prisoners of the  charge. Prisoner is attacked by other prisoners, resulting in skull fracture. Trial court denies  qualified immunity, defendants bring interlocutory appeal. Affirmed as to officer who informed: risk  of harm of objectively, and subjectively (to officer) evident. Karate chop to back of neck, however,  was de minimis injury, not enough under 14th amendment. Dissent recites usefully case law  establishing that the court lacked jurisdiction to review the issue of QI as to the officer of who  revealed plaintiff's pending charges, because only issues of fact were in dispute. Dissent also  usefully recites case law establishing the court's error in ignoring whether the karate chop was  administered to punish plaintiff, in absence of any legitimate penological interest, and authority  establishing that where force used "exacts psychological harm and produces an environment of  fear of arbitrary violence at the hands of guards" it is not de minimis:  "Under the majority's reading  of the caselaw outlining the boundaries of permissible uses of force in institutional settings,  however, the government and its officials are permitted to engage in uses of force designed to  psychologically harm a detainee so long as they do not impose some arbitrary quantum of  physical pain. Such a rule is particularly disturbing given the current climate of detainee abuse as  well as the evolving techniques of punishment and interrogation that will easily
pass this test, while inflicting untold damage upon detainees and prisoners alike."

CENTER FOR BIO-ETHICAL REFORM, INC. v. Los Angeles County Sheriffs Department, 9th  Cir. Case No. 05-55294, 7/2/2008. Pro-life organization drives panel truck with big aborted fetus  pictures near public middle school, with accompanying "security" vehicle. School calls deputies  who stop the vehicles, contact the drivers, search the "security" vehicle for weapons. School  orders pro-lifers not to do this again, citing Penal Code provision against continuing to disturb a  school after being asked to leave. Pro-lifers bring Section 1983 action for injunctive relief against  the individual defendants and municipal agencies. Trial court dismisses individual defendants on  12-b-6 qualified immunity, dismisses entities on SJ. Reversed and remanded in part. Penal Code  statute could not justify interference with speech on basis of content, and pro-lifers had not  continued after being asked to desist. Detaining the pro-lifers for an hour and a quarter violated  the 4th Amendment. Officers cannot detain while waiting for supervisors to arrive and help them  decide whether a crime has been committed – continued detention is to investigate facts, not law.  Although use of lights may be unlawful, entry and search could not be justified on basis of finding  out whether the lights were working. Use, not functionality, of the lights is the crime element.

El Bey v. Roop, 6th Cir. Case No. 07-3133, 7/1/2008. Federal Marshals and local police enter  residence hoping to make an arrest based on a federal warrant. They find a man who denies  being the wanted individual. Officers detain and handcuff him while investigating his identity. They  learn that he is someone else, but there is a New Jersey warrant outstanding for him. He is jailed a  month until Jersey prosecutors decide not to proceed with the case. He brings a 1983 action. Trial  court dismisses, ignoring plaintiffs' version of the events (entry without consent, finding his identity  by examining documents that were not in plain sight). Reversed and remanded in part. Trial court  erred by ignoring fact that pro se plaintiff had filed a verified complaint, rendering its assertions  evidence to be considered on SJ, and his version the one the court must presume true on SJ.

In re Sims, 2nd Cir. Docket No. 06-0644-op, 7/18/2008. Prisoner brings 1983 action alleging use  of excessive force including being cut with a knife, and fear when guards handle knives near him,  but otherwise no special mental injury, trial court orders disclosure of psychiatric records, prisoner  seeks writ of mandamus. Reversed. Complaints by prisoner to a mental therapist seeking her aid  in relief from guard intimidation did not waive privacy rights. Prisoner withdrew any damages claim  based on fears. Deposition testimony stating such fears did not vitiate the withdrawal, especially  because he was not represented by counsel at the time. Public need for patient-psychotherapist  confidentiality cannot be balanced against state interest in probative evidence.

Jacob v. West Bloomfield, 6th Cir. Case No. 07-1534, 7/3/2008.  Complaints about junk cars lead  land ordinance enforcement officer to warn resident to remove cars. Resident fails to do so and  town files misdemeanor criminal charges. Officer repeatedly enters resident's property without a  warrant to investigate ongoing ordinance violations, resulting in resident's arrest, and even after he  pleads guilty and is incarcerated. Resident sues under Section 1983 for violations of the 4th  amendment. District court denies qualified immunity. Affirmed. Post-conviction searches are not  precluded by Heck. Officer did not enter plaintiff's curtilage for purely administrative reasons – this  was an investigation of criminal charges.

Redding v. Safford Unified School District #1, 9th Cir. Case No. 05-15759, 7/11/2008. Public  middle school officials receive uncorroborated information from 8th-grader that 13-year-old girl  has prescription-strength ibuprofen, and strip-search her. Defendants' motion for SJ is denied.  The 9th Circuit reversed. Affirmed in part and remanded en banc. Search of underwear without  complete nakedness is still a "strip search." Consent to the search by frightened girl was not valid.  School searches must satisfy only reasonableness standard, not PC, but scope of search must  be reasonably related to the justifying circumstances. School's interest in finding the equivalent of  2 over-the-counter Advils is not enough to justify strip search of girl. Evidence linking the girl to the  pills was too feeble to justify a strip search.

Douglas v. Yates, 11th Cir. Case No. 07-10518, 7/28/2008. Prisoner claims punitive retaliation  due to his request for a cell change. District Court dismisses with prejudice. Reversed in part.  Under Twombly, complaint was adequate as to prison warden because it stated his failure to  address complaints by family of guards' ongoing misconduct.  PLRA requirement of physical  injury before claiming emotional injury applies only to suits filed while plaintiff is a prisoner, so a  prisoner can wait for release, and then file.

Gil v. Reed, 7th Cir. Case No. 06-1414, 7/23/2008. Federal prisoner receives in effective medical  care for rectal medical condition resulting in complications following surgery, including infection.  Physician's assistant tries to deny him prescribed antibiotic. He is denied needed treatment for a  year and a half. Following corrective surgery, prison gives him medication specifically prohibited  by doctor because it causes constipation. Doctor previously sued by prisoner for needlessly  delaying first surgery cancels other needed medications to prevent constipation. Prisoner brings  FTCA claim. District court dismisses on summary judgment. Reversed and remanded in part.  Prisoner was permitted to satisfy Wisconsin requirement of expert witness in medical malpractice  action by relying on treating physician; furthermore, res ipsa loquitur obviated the need for any  expert. Trial court erred by concluding that prison doctor countermanding treating doctor's  prescription was mere "difference of opinion" that would not support claim of deliberate  indifference. Treating doctor's later declaration that countermanding his orders was not  substandard care could be reasonably rejected by a jury. FTCA claim has a less stringent  standard – negligence – than 8th Amendment claim – deliberate indifference.

Hodak v. City of St. Peters, 8th Cir. Case No. 07-2590, 7/30/2008. Bar owner who runs his bar  business through a privately-held corporation writes letters to local newspaper accusing local  politicians of bad government. Police start focussing greatly-increased attention on the bar;  commission trumps up license violations. Local politician warns bar owner to shut up or they will  close down his business. He doesn't shut up. They close down his business. Plaintiff bar owner  brings suit. Court dismisses for lack of standing – only the corporation suffered financial harm.  Affirmed. Court usefully lists in a footnote legal theories that would have survived motion for  dismissal on 1st Amendment retaliation claim of this kind (i.e., claims alleging that police action  reasonably was calculated to chill speech).

Wilson v. Johnson, 4th Cir. Case No. 07-6347, 7/25/2008. Department of Corrections for some  reasons decides not to release prisoner until 4 months after his sentence release date. After  release, he seeks money damages under Section 1983. District court dismisses under Heck.  Reversed and remanded. Although circuits are split, this court concludes that where favorable  termination through habeas remedy is not available, 1983 should be available.

Parsons v. City of Pontiac, 6th Cir. Case No. 07-2299, 6/24/2008. Probationary firefighter who  didn't get the job is detained for two days following shooting of another firefighter, when  ex-girlfriend reports his anger over the firing, then all charges are dropped. Suspect sues under  1983. District court dismisses on qualified immunity.  Reversed and remanded. Trial court  erroneously attributed to arresting officers knowledge of information that didn't come out until  ex-girlfriend was later deposed.

Phillips v. Roane County, 6th Cir. Case No. 07-5405/5407, 7/25/2008. Prison quack and guards  ignore inmate's obvious symptoms of diabetes during pretrial detention on charges of infanticide,  and she dies. District court denies summary judgment motion on issue of qualified immunity,  reasoning that the fact analysis in a medical deliberate indifference case should be made by a  jury. Affirmed in part. Court erred by deferring the QI issue to the jury. The court must make a  decision based on the facts alleged, because QI is an immunity from suit.

Howard v. Waide, 10th Cir. Case No. 07-1169, 7/23/2008. Gay nonviolent criminal is repeatedly  raped, reports assaults but fears to name individual perpetrators, so when transferred he is denied  special housing.  District court grants summary judgment dismissal. Reversed in part and  remanded. Notification re threat need not be in writing. Furthermore, fact that prisoner was  physically slight and openly gay arguably gave guards subjective knowledge of the danger from  gang attack – threat need not be individual. Despite general risk of imprisonment environment,  failure to take reasonable precautions may be deliberate indifference.

Montano v. City of Chicago, 7th Cir. Case No. 06-2148, 7/23/2008. Chicago Police beat and  arrest, then strip-search Mexican Independence Day celebrants. District court repeatedly  dismisses 1983 action, first on procedural grounds (reversed), then at trial, granting defendants'  Rule 50 motion for JML and as sanction for "perjury" by plaintiffs. Reversed and remanded.  Grounds for JML were inadequate. Inconsistencies between trial testimony and deposition  testimony didn't come close to evidence of perjury. And it was improper to also dismiss claims of  plaintiffs who were not even accused of perjury.

Culver v. Delaware, DE Supreme Ct. Case No. 348, 2007, 8/5/2008. Police tipped off probation  officers that plaintiff was dealing drugs. POs take the tip unquestioningly, search plaintiff's home,  calling it an administrative search based on info from a "reliable source". They find no drugs but  other contraband and violate his probation. Trial court denies suppression motion. Reversed. POs  were required to conduct independent analysis of tip's reliability. Basis for tips was volume of  automobile traffic. Search of car allegely involved turned up nothing.

Ford v. County of Grand Traverse, 6th Cir. Case No. 07-1062, 8/5/2008. Epileptic is injured falling  from jail bunk during weekend probation violation incarceration when nurse fails to obtain  anti-seizure medication, sues under section 1983, 8th and 14th amendments. Jury finds liability  only against county for medical policy re weekend incarceration. District court denies county  motion for JML dismissal. Affirmed. Jury could reasonably rely on doctor's deposition statements  giving the medication would have prevented the seizure, and ignored his trial testimony to the  contrary.

Moreno v. City of Sacramento, 9th Cir. Case No. 06-15021, 7/28/2008. Following successful civil  rights action, court cuts plaintiffs' counsel's fee request by 40% from over $700,000 to $428,000.  Vacated and remanded. Chief Judge Kozinski writes a terrific opinion explaining why the district  court erred in reducing the award of fees.

Parrott v. USA, 7th Cir. Case No. 06-1489, 7/30/2008. Prisoner is stabbed, transferred. Officers  send his personal property to his sister, and prison rules prohibit returning the property to him. He  sues them under FTCA for failure to protect from a fellow inmate and for negligent handling of his  property. Court grants summary judgment following one successful appeal. Property handling  claim is dismissed, barred by an exception to the FTCA for detaining goods. Vacated and  remanded. As to the failure ot protect claim, court improperly ruled in government's favor on  discovery issues, barring access to evidence on, e.g., grounds of admissibility. FTCA  discretionary exception would not apply if the prison had, by its own scheme, classified the two  involved inmates as having to be separated, and then put them together in the general population.

Bibbs v. Early, 5th Cir. Case No. 07-10452, 8/12/2008. In retaliation against prisoner for lodging  grievances, prison uses fan to reduce temperature in his cell to below freezing for 4 winter nights.  District court dismisses, finding the retaliation was de minimis. Reversed and remanded. Standard  is what retaliation would reasonably deter future complaints. Resulting harm is not required.  Retaliatory motive can be established by chronology of events from which retaliation may be  inferred, as well as by taunting statements about not writing grievances.

Bull v. City and County of San Francisco, 9th Cir. Case No. 05-17080, 8/22/2008. Jail has blanket  policy of strip searching all general population inmates. Class action under 1983 results. District  court denies qualified immunity. Affirmed. Individualized reasonable suspicion is the  well-established standard. Defendants' claim that they have evidence of smuggling by members  of the class is not supported by any evidence.

Danley v. Allen, 11th Cir. Case No. 07-12328, 8/22/2008. DUI jail prisoner complains about having  to use dirty toilet with no toilet paper, officers pepper-spray him, won't let him wash it off, partially  suffocate him in small unventilated "cells" for about 12 hours (per usual jail custom), he sues  under 1983. Following one successful appeal by defendants and remand, district court again  denies qualified immunity dismissal. Affirmed. Although initial spraying was ok, suffocating  confinement counts as excessive force, and implies that force was not used for legitimate  purpose. Because in order to allege facts that establish the required mens rea for a constitutional  violation the plaintiff must meet an extemely demanding standard, "there is no room for qualified  immunity in Eighth and Fourteenth Amendment excessive force cases" for qualified immunity on  the ground that the right was not clearly established. Failure to medically treat which worsens the  condition qualifies for deliberate indifference. Prior incidents put supervisors on sufficient notice  of the practice to defeat qualified immunity.

Grievson v. Anderson, 7th Cir. Case No. 05-4681, 8/18/2008. Canadian former deportee, pretrial  jail detainee on unlawful reentry charges, is beaten as a favor to another inmate who is being  investigated by a grand jury that plaintiff's friend on the outside was involved with. Officers ignore  his injuries. Finally he is seen by a doctor but officers refuse him the pain medication ("You don't  need it. Be a man and stop whining."). Requests to be moved were ignored; plaintiff was again  attacked, and again medical care was delayed; officers wrote a report that he had slipped in a  water puddle. In retaliation for his continued filing of grievances, guard threw him against bars,  treated at hospital for shoulder injury. Guards refused prescribed ice packs. Guards kept giving  him pain medication all at once, despite repeated thefts by other inmates. Inmate attacks  continued. Jailer witnessed an attack and did nothing. "Learn how to fight harder or don't come to  jail." When transferred, his medical files were withheld – he did not receive needed surgery. He  brings state and federal (1983 and Alient Tort Claims Act, 28 USC §1350) claims and district  court dismisses all of them, some on summary judgment. Reversed in part. The incident where a  guard witnessed the attack might support liability. As to medical indifference in violation of the 14th  amendment, although verifying medical evidence is required, evidence of a plaintiff's diagnosis  and treatment, standing alone, is sufficient if it will assist the jury in determining whether a delay  exacerbated the plaintiff's condition or otherwise harmed him. This is sufficient for state law  negligence claim also.

Ido v. Shreve, 4th Cir. Case No. 07-7569, 8/6/2008. Correctional officers kill uncommunicative  state prisoner with mental health history during cell extraction from isolation cell following inmate  altercation, by suffocating him with positional asphyxia and spit mask following repeated uses of  pepper spray fogger. Family sues under 1983. District court denies qualified immunity for some.  Affirmed in part. Court applies Scott decision, because there is a videotape. Court discusses  which trial court decisions are and are not subject to interlocutory appeal. Because decedent  offered his hands to be cuffed prior to use of pepper spray, and lay down passively on cell floor,  use may have been excessive. Use of spit mask in violation of prison directive about medical  attention following use of chemical agent shows failure to temper severity of force used. Prior  case law establishes that chemical agents can only be used in necessary quantities – mace vs.  pepper spray makes no difference. Fact that observing nurse stated that decedent appeared  "unfazed" by use of pepper spray is unavailing – medical examiner's finding that it killed him tends  to establish there was a serious need for medical care. Officers could not defer to nurse's  decision to do nothing when decedent collapsed in their immediate presence.

Keylon v. City of Albuquerque, 10th Cir. Case No. 07-2071, 8/5/2008. Car driver damages tow  truck removing his car after emerging from plaintiff's home. Tow truck driver calls police, tells them  plaintiff is the driver's mother. Officer begins questioning the mother, and when he asks for her ID  she starts to go into house to get it, so he arrests her for conceling her ID. Trial court denies her  motion for summary judgment, and, at trial, for JML, then gives qualified immunity issue to jury,  which defenses. Reversed. 4th amendment requires PC for an underlying crime before arrest for  ID concealment. Evasive answers do not qualify for obstruction charge – physical resistance or  "fighting words" are required. Qualified immunity is only a question for jury when legal and fact  issues are intertwined, and trial court's reasoning about evidence of officer's subjective "good  faith" fails: the test has been objective 1982 (Harlow).

Odd v. Malone, Schneyder v. Smith, 3rd Cir. Case Nos. 06-4287, 07-1490, 8/4/2008. Prosecuting  attorneys issue bench warrants for material witnesses in murder trials, omit to notify anyone that  one case had been continued for 4 months (after warrant-issuing judge warned he would release  prisoner if the case was continued by another judge, and ordered prosecutor to notify him of any  delays), and the other dismissed (when the prosecutor failed to use the witness at the preliminary  hearing). They sue under 1983. One trial court bases qualified immunity on prosecutorial immunity  , the other denies, finding prosecutor role ended when criminal case was dismissed. Plaintiff in  one case, defendant in the other appeal. Affirmed and reversed, in both cases in favor of  plaintiffs. Prosecutorial immunity is limited and prosecutor has a heavy burden in establishing it.  Out-of-court and pre-indictment actions generally not immune; purely administrative acts also may  not be; prosecutor must be acting as "the state's advocate." Some acts are so egregious they are  not immune. Here, in one case failure to notify judge re continuance was administrative, not  advocative act, particularly because it violated judge's order. Tracking status of witnesses is  prosecutor's administrative obligative. In the other case, the advocacy role ended when the case  was dismissed.

Mendez v. County of San Bernadino, 9th Cir. Case Nos.  05-56118, 07-56029 & 06-56424,  8/27/08. Police shoot deaf-mute during an armed standoff in neighbor's driveway.  Spanish-speaking mother and brother are taken to station for questioning, induced to sign  incimprehensible English search consent form. While they are detained and not told of boy's  death, police trash the house. They sue under 1983 and at trial, jury finds liability for false arrest  and unlawful search, awards $1 compensation, $250,000 in punitives against arresting officer.  Trial court remits punitives to $5,000; denies all attorney fees on grounds that $727,000 shocked  the conscience; and sanctions plaintiff's counsel for failure to appear personally at an OSC re his  repetition of a witness examination question the court had ruled improperly phrased. Reversed in  part and remanded. Court erred in failing to determine a lodestar and do the math. Fee-denial  discretion is very narrow. Punitive damages take a case out of the "nominal" category, regardless  of compensation damages amount. "Windfalls" are ok. Counsel properly eliminated hours for  unsuccessful claims; did not submit outrageous hours or hourly rate. "Shock the conscience" is  not a fee standard applied by the 9th Circuit and wouldn't apply here anyway. Court cannot  sanction when attorney was not reasonably on notice that his personal appearance was required,  and when court itself failed to make a finding of bad faith.

Torres v. City of Los Angeles, 9th Cir. Case No. 06-55817, 8/26/2008. Despite failure of witness  in slanted photo array to really ID 16-year-old suspect, LAPD detectives arrest him for murder in a  drive-by shooting. After nearly 6 months detention, charges against him are dropped. He and his  mother sue under section 1983. At trial, court denies in limine motion to prevent defendant  detectives from testifying as witnesses, because they failed to properly designate themselves,  and to prevent them from stating why they felt they had PC to make the arrest. At close of  evidence, court then grants motion to dismiss JML and alternatively under QI. Reversed. PC to  believe plaintiff was in the car would not be enough to arrest – mere presence, or flashing gang  signs is not murder. Even after evidence was in, factual determination re QI was for jury to decide,  not court. Admission of the undesignated expert testimony was also error. It is the offering party  that must establish lack of prejudice – not the party objecting.

Turner v. Burnside, 11th Cir. Case No. 07-14791, 8/28/08. Prisoner is forced to clean electric  oven even after he objects that it is sparking and the floor is wet. Electrical shock knocks him  down and permanently injures his leg. Prison employee laughs, files disciplinary report against  prisoner. He is denied adequate medical care. When prisoner files grievance, warden tears it up  and threatens to transfer him to another prison far away where his family cannot see him if he files  another. Prisoner sues under 1983. District court dismisses for failure to exhaust administrative  remedies. Vacated and remanded. Prisoners are not required to grieve a breakdown in the  grievance procedure or resubmit in order to exhaust remedies. Warden's threats removed  obligation to appeal denial of grievance. "Remedies that rational inmates cannot be expected to  use are not capable of accomplishing their purposes, and so are not available." Fact that warden  later retired is irrelevant – plaintiff had already filed his suit. Plaintiff need only exhaust remedies  available prior to suit.

Barrett v. Belleque, 9th Cir. Case No. 06-35667, 9/22/2008. Prison inmate wrote letter to family  describing prison administrators in profane language, prison officals read the letter, cited him for  disciplinary violations, revoked good behavior time, privileges. Prisoner brought 1983 action under  1st and 14th amendments. Oregon District judge Garr M. King dismissed the case sua sponte,  "reasoning" that the prison had a "legitimate penological interest[ ]" in preventing Barrett from  using "crude and racist language," that outweighed any countervailing First Amendment interest.  Reversed and remanded. Regulations governing communications between prisoners do not apply  to private correspondence to family members.

Castaneda v. USA, 9th Cir. Case No. 08-55684, 10/2/2008. Despite two recommendations from  medical professionals, prison fails to obtain biopsy of possible penile cancer for prisoner during  3-1/2 month incarceration. Following transfer to federal immigrant detention facility, health  professionals continue to recommend biopsy, adminstrators continue to refuse. Symptoms  worsen. Biopsy is again refused. Penis is spraying blood every time he urinates. Prison issues  more boxer shorts. He is ultimately seen by a doctor who again recommends biopsy. Detention  facility instead releases him At ER, penis is amputated. He dies after a year of chemo at age 36.  Bivens and 1983 action he filed while alive is continued by surviving family members. Judge  Pregerson denies motion asserting 42 USC 233(a) preempts constitutional claims. Affirmed. It  doesn't. FTCA depends on state laws, which, following "tort reform" in med mal cases is  inadequate protection of constitutional rights. 42 USC 233(a) language is not explicitly preemptive  of Bivens, likewise legislative history and statutory context. Nor are there special factors barring a  Bivens claim.

Dominguez v. Hendley, 7th Cir. Case Nos. 07-1004, 07-1005 & 07-3030, 9/30/2008. 15 year old,  following false arrest, falsification and manipulation of evidence by police, is convicted of home  invasion and sexual assault. 13 years later on the basis of DNA evidence he is exonerated. He  sues under 1983 alleging violation of due process. City is dismissed from suit with understanding  City will indemnify defendant officer. Jury awards $9 million, City changes its mind, judge amends  judgment to make City liable. Individual officer and City appeal. Affirmed. Officer's SOL argument  fails because although Heck does not suspend accual date for false arrest claims, plaintiff alleged  subsequent misconduct in violation of right to fair trial. Failure of plaintiff to plead Brady violations  is no bar to judgment – defendant was on notice by time of trial, and offered evidence in defense  against those claims. Although plaintiff may move to amend to conform to trial evidence, failure to  do so does not affect trial result on that issue.

Hartline v. Gallo, 2nd Cir. Case No. 06-5309, 10/8/2008.  21-year-old woman is stopped re  missing rear plage while driving truck on the job. Officer sees marijuana stem on floor, searches,  finds more bits of marijuana in truck. Arrested; at jail female officer cavity-searches her, pursuant  to policy of strip-searching all arrested females, while broadcasting video of such searches  throughout the jail. Charges are later dismissed. She sues under §1983, individual officers and  municipality. District court dismisses. Reversed and remanded. Officer could not reasonably have  had individualized reasonable suspicion that plaintiff was concealing drugs on her person.  Defendants can't claim the "special needs" of controlling a larger prison population where plaintiff  was searched prior to booking and release. Absent a case suggesting these circumstances would  justify a search, reasonable jury might conclude this conduct violated 4th amendment rights. Court  also erred by finding waiver of broadcast issue, given that plaintiff's opposition papers specifically  addressed this issue.

Manning v. USA, 7th Cir. Case Nos. 07-1120 and 07-1427, 10/6/2008. Former police officer and  FBI informant's convictions for kidnapping and murder are overturned. He sues individual FBI  agents under Bivens and RICO, and sues USA under FTCA for malicious prosecution and IIED.  In bifurcated trial, jury awards $6.5 million on Bivens claims in January 2005, finding fabrication  and concealment of evidency by agents; in March, court orders judgment entered on that verdict.  In September, 2006, bench finds for Defendant USA on FTCA claims, deciding that even without  the fabricated evidence, there was probable cause to prosecute. Court then dismisses Bivens  claims on ground that inconsistent FTCA decision bars the Bivens claims. Affirmed, in conflict with  9th Circuit decision in Kreines. Plaintiff had a choice whether or not to continue to pursue the  FTCA claim – at his own risk. The language of §2676 is unmistakeable.

Nguyen v. USA, 11th Cir. Case No. 07-12874, 10/21/2008. Plaintiff doctor is falsely arrested on  charges of unlawful drug prescription without physical examination of DEA informant. He had  examined, and prescribed in good faith, but DEA agents ignored those facts. Charges are  dismissed two months later. He loses his practice as a result of the arrest and attendant publicity.  He sues local arresting sheriffs department and US as DEA employer. Court dismisses US on  sovereign immunity. Jury awards over $1 million against local law enforcement. Plaintiff appeals  dismissal of US. Reversed. The discretionary function limit to immunity waiver generally applies to  arrest decisions, but the subsequent proviso under 28 U.S.C. § 2680(h) withdraws such immunity  waiver for claims of false arrest and malicious prosecution. I.e., they are not immune. The  language of the proviso is plain, and further supported by legislative history of its enactment – a  congressional response to drug raids on innocent families' homes.

Porter v. Osborn, 9th Cir. Case No. 07-35974, 10/20/2008. State Troopers, responding to report  of abandoned car, order sleeping decedent out of the vehicle. When he is slow to comply, they  pepper-spray him. He starts to drive toward their car and they shoot him to death. District court  denies summary judgment dismissal, finding disputed facts in support of 14th amendment claim  under conscience-shocking deliberate indifference standard. Reversed and remanded. In this  kind of "urgent situation," standard is whether officer's subjective purpose was to harm decedent,  regardless of legimitate law enforcement objectives. In County of Sacramento v. Lewis, SCOTUS  established an illegitimate "purpose to harm" standard in police chase cases, as opposed to  "deliberate indifference", because "actual deliberation" in such cases is not "practical."

People v. Sweig, 3rd Cal.App.Dist. Case No. C057241, 10/27/2008. Officers detain criminal  defendant under mentally-disabled 72-hour evaluation statute, then warrantlessly search his home  and find an unlawful assault rifle under his bed. Finding the search unlawful, the court dismisses  the firearms charge. Affirmed. It is not for the court to rewrite a statute that calls for police to  confiscate firearms from the mentally-disabled, so that it includes a right to search, even though  that may have been the legislature's intention. The "community caretaking" exception to the  warrant requirement does not apply because, with the plaintiff in the back seat of a patrol car, there  was no necessity to search the residence where he lived alone.

Weigel v. Broad, 10th Cir. Case Nos. 05-8094 and 05-8102, 10/21/2008. Decedent hits trooper's  vehicle after trooper does a U-turn across the median. When he fails to produce a driver's license,  and troopers smell alcohol on his breath, they request a field sobriety test. Instead he tries to run  out into traffic. Troopers and a bystander wrestle with him in a ditch, at one point putting him in a  chokehold, and sitting on him until he goes into cardiac arrest. Family sues under 1983, district  court dismisses on qualified immunity, holding 4th amendment right violated was not clearly  established. Reversed and remanded. Jury could reasonably conclude that decedent was no  longer a threat, when deadly asphyxiation force was applied. Same facts bar qualified immunity,  despite lack of precedent on identical facts.

Gill v. Maciejewski, 8th Cir. Case Nos. 07-3451/3482/3630, 11/4/2008. Police pin plaintiff to  ground, defendant officer does knee drop on his head, district court jury awards damages in 1983  action, officer appeals. Affirmed. Court's determination that plaintiff's inaccurate deposition  testimony concerning his prior criminal record resulted from a mistaken belief justified decision to  exclude that evidence offered for purposes of impeachment, and court's credibility determinations  are virtually not reversible. Criminal defense attorney's trial statement that "we still don't know" who  performed the knee drop, taken out of context by civil trial defense attorney was properly  excluded. Court properly refused to reduce plaintiff's recovery by amount paid by medical  insurance – common law collateral source rule applies to § 1983 actions – state law (which under  Minnesota statute provides for such reduction) is only applied when federal law is inadequate.  $10,000 award was substantial enough to justify award of reasonable fees in this case, even  though amount of damages does bear on fees awarded.

Parker v. Gerrish, 1st Cir. Case No. No. 08-1045, 11/5/2008. Police Taser plaintiff in the course of  handcuffing him on drunk driving charge. Both operations cause injury. He wins $111,000 in 1983  action. Officers appeal. Affirmed. Appellate court review of police video (under SCOTUS Scott v.  Harris) of the incident is inconsistent with police claim that plaintiff's "dramatic movement" justified  Taser use after one hand had been cuffed. Jury could have reasonably concluded on basis of  medical expert testimony that use of Taser and consequent paralysis and fall, and not the  handcuffing itself (dismissed as a basis for liability on summary judgment), caused rotor-cuff tear.

Torres v. City of LA, 9TH Cir. Case No. 06-55817, 8/26/2008. Using six-pack that contains only  one other photo of overweight person – identified by witness as suspect characteristic – police  get witness to tentatively ID plaintiff as "more likely" to be in the car during a gang-related drive by  shooting death, and arrest him. He is charged with murder and jailed 5 months. Following trial on  1983 action, Judge Klausner grants JML dismissal to defendant officers. Reversed and  remanded in part. Mere resemblance to a general description is not enough for PC. Reasonable  jury could find that tentative ID following suggestive six-pack was not enough for PC. Jury could  also consider that plaintiff did not flee when detectives came to arrest him. And mere fact of  presence in vehicle would not establish PC for murder. Due to issue going to the jury after  defendant admitted material dispute on QI in prior SJM, QI is question of jury reasonableness in  possibly finding against the defendant, and on this evidence, jury could do so. However, one  detective, by lying about tentativeness of ID to other detective, gave him basis for QI, which court  grants. On remand, defendants' gang experts must provide disclosure reports. Burden is on  non-disclosing party to show lack of prejudice, thus plaintiffs' failure to show prejudice is  immaterial. Trial court also erred in allowing defendants to testify about existence of PC – a  question for the jury, not an expert, to resolve.

Vasquez v. California, Cal. Supreme Court Case No. S143710, 11/20/2008. Prisoners are  employed to make clothes in prison in a joint state-private corporate venture, paid unlawfully low  wages, made to place false "Made in Honduras" labels and sell the clothes in California. Textile  union sued. Following denial of demurrer, plaintiffs prevailed on certain of their claims in a bench  trial and were awarded damages, costs, and attorney fees. Following commencement of jury trial  on the remaining claim for waste (based on failure to collect the state's share of the prisoners'  unpaid wages), the parties agreed to a stipulated injunction, later entered as a judgment, providing  for financial reports and payment of wages by defendants. Defendants appealed the award of  additional fees as to the taxpayer waste claim. Affirmed. California provides for the grant of  attorney fees when "private attorney general" litigation has resulted in in the enforcement of an  "important right affecting the public interest". In other words, even when there's no final judgment  (as required by the federal courts). California has some limits on attorney fee awards based on the  "catalyst theory," including reasonable settlement attempts prior to litigation. This isn't a "catalyst  case," because plaintiff had obtained a judgment (and defendants failed to raise a catalyst  argument in the trial court), however, all "private attorney general" attorney fee awards are made at  the court's discretion, applying equitable discretion, and require a finding of the necessity for, and  financial burden of, private enforcement, as to which settlement attempts may be a factor.  Discussion of history and purpose of private attorney general statute. Settlement attempt is a  factor, not an absolute requirement, of fee award in non-catalyst case. Discussion of what  constitutes adequate pre-litigation settlement attempts, e.g., they can be conducted by  non-attorney complainant. Futility of settlement attempts may also be a factor.

Vance v. Wade, 6th Cir. Case No. 07-5930, 11/17/2008. Police conduct warrant search of  restaurant for gambling machines. Owner is roughly handcuffed and "crammed" into a patrol car  whose windows are rolled up in 90 degree heat. This exacerbated prior injuries, necessitating  subsequent neck surgery. Owner sues under 1983, court dismisses claim of handcuff excessive  force on merits; dismisses "cramming" claim on QI. Reversed in part and remanded. This case is  different from Saucier, where a military police officer "reasonably" shoved the disabled plaintiff  into a van despite his visible, knee-high leg brace. Here, there was a delay in the action. That delay  removed the basis for a Saucier belief that the plaintiff should be "hurried" through the use of  force. The officer here needed to immediately cram the handcuffed plaintiff into the police vehicle;  delaying denies him the QI he would otherwise deserve despite the neck injury to his handcuffed  prisoner.

McGhee v. Pottawattamie County, 8th Cir. Case No. 07-1453, 11/21/2008. Security guard is  murdered. ADA not yet assigned to the case participates in the investigation, while  election-campaigning DA oversees it. Much evidence implicates one suspect, but they like plaintiff  – a teenager with a criminal record – better, so that evidence is concealed including by  affirmatively false statements in discovery. They also obtain cooperation from an informant by  promising to drop or reduce criminal charges against him and suggesting he might receive $5000.  Cooperation includes getting him to change or drop statements establishing plaintiff's innocence.  Plaintiff brings suit under 1983. District denies SJ absolute and QI on some claims; prosecutors  file interlocutory appeal. Affirmed in part and remanded. Prosecutorial absolute immunity (AI)  does not attach until there is PC to arrest. Evidence fabrication prior to filing charges is not a  prosecutorial function.

Cooper v. Southeastern Pa. Transit Auth., 3rd Cir. Case No. 07-1522, 11/26/2008. Bus driver  brings collective labor action against transit authority for underpayment. TA moves to dismiss  claiming 11th amendment sovereign immunity. Trial court denies the motion. Affirmed. Whether  an agency is "an arm of the state" for 11th amendment purposes is based on 3 factors: state  treasury funding of the agency (i.e., must it pay if liability is found, according to a legal liability, not  as a discretionary subsidy); state law status (e.g., separate corporate entity, subject to suit, subject  to state taxation); and autonomy (from state control). Based on recent SCOTUS decision, all 3  receive equal weight, because the central issue is "state dignity." State legislature cannot simply  enact an effective sovereign immunity designation for an agency. Although state has some control  over the agency's funding, it does not predominate and the agency is mostly autonomous of state  control, particularly as to its operations and decisions.

Houskins v. Sheahan, 7th Cir. Case Nos. 06-2283, 06-2549 and 06-2575, 11/25/2008. Social  worker is disciplined in retaliation for complaining to her employer, the sheriff, of fight between  herself and correctional officer (he steals space she was waiting for in parking lot, she uses  abusive language and he hits her in the face) sues under § 1983 the county, the sheriff, and the  CO, jury awards damages, defendants appeal. Affirmed in part. Trial court should have dismissed  1st amendment retaliation claim. Internal complaint was job-required, so not protected speech.  Criminal complaint was only self-interested, not of public concern, so not protected speech. So  sheriff can't be sued, nor county – a policy of such retaliation is not a constitutional violation. As to  CO: court properly exercised supplemental jurisdiction over state law claims for assault and  battery, arising from the same incident.

Walker v. Epps, 5th Cir. Case No. 08-60652, 11/24/2008. Prisoners challenge lethal injection  mode of carrying out death sentence. Trial court dismisses claim as exceeding statute of  limitations. Affirmed. Plaintiffs' equitable actions accrued when state lethal injection statute  became effective. SCOTUS and state law holding that statutes of limitations do not apply to  equitable actions (principles of laches do) are rejected in favor of one-limit-fits-all simplicity.  Continuing tort doctrine does not apply, despite repeat applications of allegedly unconstitutional  execution method because "plaintiffs are individually subject to execution, and that act will be a  single
event. The challenged protocol will affect each plaintiff but once."

Ballard v. Heineman, 8th Cir. Case No. 08-1103, 12/1/2008. Plaintiff's car is stopped and  searched, police find cocaine, but the court dismisses, finding the search was unlawfully  racially-motivated. Plaintiff sues under § 1983 and the district court dismisses on MSJ. Affirmed.  The parties on the suppression motion were not the same, so the criminal court's ruling lacks  preclusive effect and therefore is not evidence raising a material dispute. A state commission  concluding that the police racially profile also fails to address whether this particular stop and  search were racially motivated.

Broadley v. Hardman, 1st Cir. Case No. 08-1342, 12/10/2008. Plaintiff is improperly subpoenaed  to pretrial deposition, sues under § 1983, district court dismisses. Affirmed. Use of notary public  to issue subpoena pursuant to state law still does not rise to level of conduct by a state actor.

Buck v. City of Albuquerque, 10th Cir. Case No. 07-2118, 12/9/2008. New Mexico protestors sue  police under § 1983 alleging false arrest and malicious prosecution at protest event. Captain files  MSJ, which is denied. Affirmed. Plaintiffs established adequate personal involvement of this  officer in the alleged misconduct, as to which evidence raised material dispute on the issue of  constitutionality for retaliatory arrests and excessive force (beanbags, pepperballs, tear gas,  kicking, beating). He was videotaped on the scene and evidently in charge, and in fact ordered a  number of arrests. He was involved in planning police response in advance of the protest.  Plaintiffs' actions, e.g., chanting, playing drums, making hand "peace signs", standing on public  sidewalk, did not establish PC for arrest. By closing some streets for parade and directing  protestors down them, police appeared to permit the parade.

Dunn v. Matatall, 6th Cir. Case No. 08-1094, 12/1/2008. Following a brief vehicle pursuit, drunk  driver's leg is broken as he is pulled out of his car by arresting officers. Driver sues under § 1983.  Court dismisses on MSJ. Affirmed. Plaintiff's reliance on police videotape, arguing that the  assessment of evidence is for the jury not the judge, is sad and pathetic. SCOTUS Scott ruling  governs. Judge's decision that the videotape showed reasonable force ends the matter.

People v. Hernandez, California Supreme Court Case No. S150038, 12/11/2008. Driver with no  plates but temporary operating permit is pulled over, admits probation, resists arrest, is  pepper-sprayed, handcuffed and arrested. Suppression motion is denied and jury convicts of  various resisting and drug charges. Court of appeal reverses. Affirmed. Police cannot stop a  vehicle on basis that temporary operating permits are often forged. The suspicion must relate to  the particular person being detained. 

The People v. Raymond C., California Supreme Court Case No. S149728, 12/11/2008. Juvenile  driver with no plates but temporary operating permit is pulled over, arrested when officer smells  alcohol and fails driver on field sobriety test, placed on probation in 10-day work program.  Affirmed. Officer following vehicle did not see permit in windshield, was not required to observe all  sides of vehicle before stopping it, which would be difficult and dangerous. No discussion of  whether officer was required to walk around the vehicle after stopping it.
Corporate security investigator recites in report the incomplete account of she received  concerning incident involving security guard, and is criminally prosecuted

Jianinney v. Delaware, Delaware Supreme Court case no. 350, 2007. Defendant's father testifies  he was at home at time of crime (lewd conduct), and employer states he would not have had time  to drive to the location. Prosecutor impeaches employer with Mapquest travel estimates. Affirmed.  Mapquest drive-time estimate is not reliable and should not have been admitted, but prosecutors  had two other witnesses who tended to contradict the father and employer, so error was harmless.

LeVine v. Roebuck, 8th Cir. Case No. 08-3388, 12/4/2008. When prisoner is unable to give urine  sample because of enlarged prostate, officer threatens him with discipline if he doesn't go to  nurses and submit to catheterization. He later sues under 4th and 8th Amendment and trial court  dismisses. Affirmed. Correctional officer didn't command the nurses – only the prisoner – so no  liability.

Marley v. USA, 9th Cir. Case No. 06-36003, 12/8/2008. Patient files FTCA med mal action against  veteran's hospital, dismisses without prejudice, and refiles, this time after the 6 month deadline.  Trial court dismisses on SJM for missing the statute of limitations deadline. Affirmed. Appellate  court lacks jurisdiction even to consider equitable tolling argument.

Reynolds v. USA, 7th Cir. Case No. 08-1634, 12/9/2008. Corporate security officer, based on  incomplete report she received concerning employee security guard of Homeland Security office  building, writes incomplete report (stating he locked himself out on the roof; omitting that he was  nude at the time) and is prosecuted in state court based on inaccurate investigation of federal  agency. Charges are dismissed but she is fired anyway and she sues for malicious prosecution  under FTCA. District court dismisses. Vacated and remanded. Discretionary-function exception to  FTCA does not apply. Prosecutor decision to prosecute is discretionary, and prosecutor providing  misinformation to jury is discretionary. But providing misinformation to a prosecutor is not  discretionary. Perjury is not what Congress intended to protect from "second-guessing."

Tennison v. San Francisco, 9th Cir. Case No. 06-15426, 12/8/2008. Following a beating and fatal  shooting, police provide only some witness statements to prosecutor, withholding contradictory  exculpatory statements. Suspects are convicted, serve 12+ years until defense attorney have  them freed and found factually innocent. The sue under § 1983 and win. Defendants appeal.  Affirmed. Brady obligations include police, not just prosecutors. Plaintiffs need not show bad faith  to sue on violation of due process. Maintaining exculpatory evidence in a file without informing  prosecutors does not satisfy Brady obligation. Defense attorneys may not be able to obtain  exculpatory statements in the hands of the prosecution, from witnesses.

McCown v. City of Fontana, 9th Cir. Case No. 07-55896, 12/24/2008. During marijuana arrest,  plaintiff and officer get into mild scuffle. After handcuffing, officer Tasers plaintiff repeatedly on  stomach, genitals, and chest. Plaintiff sues under § 1983 claiming false arrest, excessive force,  municipal deliberate indifference. During discovery, plaintiff makes $251,000 settlement demand,  attorney fees (John Burton) included. On SJM, court dismisses all but excessive force claim.  Parties reach pretrial settlement for $20,000, plus court-awarded fees. Plaintiff seeks $300,000 in  fees; court (Andrew J. Guildford) awards $200,000. Remanded. Court failed to explain how it  reached a lodestar figure, or basis for number of hours awarded. However, failed claims which are  related to the successful claim – common fact core or related legal theories – can still support  fees. Dismissal of 8 out of 9 claims is pertinent to "level of success" calculation. So is failure of  plaintiff successfully to allege agency-wide misconduct or effect change in police policy, because  that lessens benefit to the public.

Laurence v. Wall, 1st Cir. Case No. 08-1380, 12/24/2008. Forma pauperis prison plaintiff fails to  timely serve amended complaint and court dismisses. Vacated and remanded. Forma pauperis  plaintiff is entitled to time extension when US marshals fail to serve his papers for him.

Kaemmerling v. Lappen, DC Cir. Case No. 07-5065, 12/30/2008. Prisoners sue claiming DNA  collection violates Religious Freedom Restoration Act, because it is repugnant to his strongly held  religious beliefs about the
proper use of "the building blocks of life." Court dismisses without prejudice for failure to exhaust  administrative remedies and failure to state a claim. Affirmed except dismissal is now with  prejudice. Lack of Bureau of Prisons discretion not to collect DNA does make administrative  remedy futile, so PLRA exhaustion requirement does not support court's original grounds for  dismissal without prejudice. However, he fails to state a claim because the DNA collection statute  is a valid and neutral law of general applicability which does not impact his religious practice, and  is the least restrictive means of serving a compelling governmental interest.

Bonner v. Outlaw, 8th Cir. Case No. 07-3676, 1/9/2009. Attorney sends legal papers to prisoner,  they are rejected for not complying with "package" regulations, without notification to prisoner.  Prisoner files Bivens action against warden. Prisoner eventually is left with procedural due  process claim based on failure to notify. District court denies QI dismissal. Affirmed. Prisoners  have a 1st amendment liberty interest in correspondence. This includes packages. Ambiguous  federal regulation distinguishing whether sender or prisoner gets notice of rejection of package  vs. letter doesn't matter: case law is what controls, not regulation. Warden is liable either for  setting policy – or for failing to do so. Notice from attorney doesn't remove claim – prisoner was  injured by the delay.

Herring v. US, SCOTUS Case No. 07-513, 1/14/2009. Plaintiff is arrested due to error: county  database failed to list warrant as recalled. Arresting officers find drugs and gun. District court  denies suppression motion. Affirmed. Court weighs deterrence of police misconduct against cost  of letting "guilty" defendants go free. Isolated errors will not be deterred by this suppression.  Dissenters point out that such suppression will deter negligence, which is important to deter to  prevent violation of rights of the innocent. They also point out the court is now erasing the line  between court errors and police errors.

Morelli v. Webster, 1st Cir. Case No. 08-1759, 1/7/2009. Officer running prostitution sting  telephones exotic dancer and invites her to dance in his motel room. She fails to agree to perform  sexual acts, and takes $20 for the waste of her time and cost of transportation. As she leaves,  officer slams her against wall. Police bring her back to room and detain her for questioning. After  her release, a hospital confirmed injuries to her shoulder (rotator cuff tear and contusions), and  she suffers ongoing pain. She sues under § 1983. Court dismisses all claims except excessive  force. Reversed in part. Taking the $20 justified arrest, but not the level of force used.

USA v. Stewart, 2nd Cir. Case No. 07-3003-cr, 1/8/2009. Plaintiff, a convicted felon, is a  passenger in a cab, stopped by officers who erroneously believe the cab has violated the law by  "encroaching" on a crosswalk at a red light. The question the passenger, search him, find he has a  firearm. Court suppresses, reasoning that the cab could not be stopped without probable cause to  believe a traffic violation had occurred. Vacated and remanded. Police only need reasonable  suspicion of traffic violation to conduct a vehicle stop.

Valladares v. Cordero, 4th Cir. Case No. 07-1995, 1/12/2009. Responding to call of domestic  disturbance (argument between 25-year-old and his mother), police verbally provoke 25-year-old,  and, when he responds in kind arrest him using pepper spray. Younger brother, 15, intercedes,  and officer breaks his jaw by slamming him face into a parked car, claiming it was the result of an  accidental fall. Younger brother sues through mother under § 1983. Court denies defendant QI,  he appeals. Affirmed. Purported inconsistencies between boy's affidavit and deposition testimony  do not justify granting of defendant's motion – this is a credibility issue for the jury to decide.  Meanwhile, the officer (6'2", 250 lbs) admits he slammed the boy (5'3", 130 lbs) into the car after  the boy ceased resisting. Failure of boy to verbally surrender is immaterial.

Arizona v. Johnson, SCOTUS Case No. 07-1122, 1/26/2009. Gang task force conducts traffic  stop, question backseat passenger. Because he is from a town with a known gang, and had been  to prison, orders him out of car, pats him down, finds gun. He is arrested and convicted for  weapons violation after trial court denies suppression motion. Court of appeals reversed.  Re-reversed and remanded. Traffic stop means police can detain and search everybody for  duration of investigation of traffic violation, if officer has reason to believe they are armed and  dangerous. Here, passenger was wearing a blue article of clothing (a bandana) and carrying a  police scanner, in addition to admitting prior conviction and residence in a town with a gang.

Pearson v. Callahan, SCOTUS Case No. 07-751, 1/21/2009. Suspect is arrested on drug charges  after police search home without warrant. Appeals court vacates conviction on grounds that police  "consent-once-removed" (consent given to police informant) was invalid consent. Suspect sues  under § 1983. Trial court grants qualified immunity after conducting Saucier v. Katz 2-step QI  analysis. Affirmed. Trial court need not conduct 2-step analysis – can, if it chooses, grant QI if the  asserted right, whether or not it existed under the Constitution, was not "clearly-established" at the  time. It can be not clearly established and stay that way; the federal courts have more important  things to worry about.

Van de Kamp v. Goldstein, SCOTUS Case No. 07-854, 1/26/2009. Falsely convicted, after 18  years in prison, prisoner finally wins habeas petition because prosecutors, according to their usual  policy, unlawfully withheld impeachment material about their jailhouse informant (he had received  reduced sentences in other cases for providing testimony favorable to prosecution) from the  defendant. After release, he sues under § 1983. Court denies prosecutorial immunity for  "administrative" conduct (maintaining the unlawful policy), as opposed to "prosecutorial" conduct.  Ninth Circuit affirms. Reversed. Unlawful prosecutorial policy is also absolutely immune from suit.

Singson v. Norris,  8th Cir. Case No. 08-1570, 1/27/2009. Wiccan prisoner challenges, under  RLUIPA (Religious Land Use and Institutionalized Persons Act) prison policy of prohibiting  keeping Tarot cards in cell, requiring that they be checked out from prison chaplain. Affirmed.  Prison expert testified to dangers of the cards: readings can be exchanged for goods or services;  gang symbols on cards; psychological intimidation, and prisoner was never denied use of cards  by chaplain. Consequently, no burden on religious practice. Court granted due deference to  expert's opinions. No need to consider less restrictive means because "the parties only presented  one deck of cards."

Case v. Eslinger, 11th Cir. Case No. 08-10657, 1/29/2009. Deputies arrest president of repo  company, without warrant, over somewhat inconsistent allegations from fired former employee,  that president was using forged or altered ID plates on vehicles, following investigation that  disclosed some corroborating evidence. DA dismisses the case. Company president sues  deputy, sheriff, and city under § 1983. Court dismisses on summary judgment qualified immunity.  Affirmed. Although SCOTUS Pearson decision gives court option of deciding solely on issue of  whether purported right was clearly-defined, here, it was best for the Court to look at issue of  whether the right existed at all because of municipal liability allegations. Here, the arresting officer  had probable cause to arrest, because supporting information need only be "reasonably  trustworthy," and no right was violated. Note: this case suggests that adding Monell claims may  help avoid Pearson shortcut to QI dismissal.

Humphries v. County of Los Angeles, 9th Cir. Case No. 05-56467, Second Amended Decision  filed 1/30/2009. Disgruntled teenager accuses parents of child abuse, they are arrested and other  family children are taken into state custody until doctor testifies the allegations cannot be true.  They obtain determination of factual innocence from criminal court and juvenile court dismisses  dependency petition brought by child welfare authorities as not true. Parents however remain on  the Child Abuse Central Index. They bring action under § 1983, claiming the Index procedures  deny them due process. District Court (James V. Selna) grants summary judgment for  defendants, finding no constitutionally-protected interest entitled to due process protection.  Reversed in part and remanded. Inclusion under the Index constitutes stigma-plus infringement of  a state-law right or interest, and, therefore, infringement of a federally-protected liberty interest.  Under California Penal Code, removal depends on decision of the case investigator that her own  case failed to meet various minimum criteria. There is no way for someone on the Index to  challenge the listing and have their name removed. Although the Index is supposed to be  "updated" the law doesn't say by whom – apparently only the reporting agency can update the  listings, based on the investigator's decision (in this case, he was no longer with the agency).  Inclusion on the Index is considered by various entities in making decisions granting or denying  opportunities and benefits. Even though the third-party entities may still grant those benefits or  opportunities, consideration of the Index alters plaintiffs state-law rights and status; extinction of  those rights is not required for federal protection – alteration is enough. However, qualified  immunity protects the individuals; only claims against the County under Monell survive SJM.

Dominguez v. Correctional Medical Services, 6th Cir. Case No. 08-1212, 2/17/2009. Prisoner  sickens during summer weight-training, guard phones nurse, who says she will treat prisoner 3-1/2  hours later. When he starts vomiting ½ hour later nurse agrees to see him. She sees and  examines him, sends him back to his cell. He ends up a paraplegic. Prisoner sues. District court  denies defendant's SJM. Affirmed. Delay in treatment of evident serious medical condition  constitutes reckless indifference. Likewise decision to return him to his non-air-conditioned cell  rather than to one of two available air-conditioned holding cells. Likewise decision to delay visiting  prisoner for another 25 minutes after he was found unconscious.

Sossamon v. Texas, 5th Cir. Case No. 07-50632. Prisoner is not permitted to worship in chapel  with cross, supposedly on grounds of prison security, except other prisoner group activities do  take place in that space. He sues under Religious Land Use and Institutionalized Persons Act  ("RLUIPA"), seeking injunctive and damages relief. District court dismisses all claims on SJM.  Reversed and remanded in part. RLUIPA does not provide for damages actions against individual  government agents, despite some language to the contrary, because it was passed under the  Spending Clause, not the 14th Amendment. However, he has raised a material issue as to claims  that satisfy the RLUIPA liability standard ("least restrictive means of furthering [a] compelling  interest"), which is lower than the 1st Amendment standard ("reasonably related to legitimate  penological interests").

Drogosch v. Metcalf, 6th Cir. Case No. 08-1249, 2/25/2009. Parole agents falsely arrest  probationer, refusing to look at his documents, jail him using wrong form, which they know will  deprive prisoner of PC hearing. Prisoner is jailed 13 days before being released. Prisoner sues  under 1983. District court denies QI SJM. Affirmed. Although actual probation officer received  notice of the arrest, responsibility for the false imprisonment remains with the officers who jailed  him using the wrong form. That decision cannot be defended as "split-second."

Espinal v. Goord, 2nd Cir. Case No. 07-0612-pr, 2/27/2009. Prisoner files grievance alleging  excessive force retaliation for prior suits and denial of medical treatment, fails to name 12 of 14  defendants, later sues under 1983. District court dismisses claims against these 12, as well as  retaliation claims. Reversed in part. Supreme Court subsequently ruled that unless rules  specifically require it, grievance need not name defendant. As to retaliation, trial court found no  causal connection because of 1-1/2 year lapse between filing of prior suit and use of force. But 6  months lapse between dismissal of prior suit and use of force is short enough to raise material  issue of causation. Guards could have waited for an opportune time to get their revenge. It is a  legitimate inference that guards communicated to each other about the prior suit.

Fennell v. Gilstrap, 11th Cir. Case No. 08-12553, 2/27/2009. Jail officer kicks prisoner in the face  who is allegedly resisting handcuffing. Prisoner brings suit under 1983. District court dismisses.  Affirmed. The claim of a prisoner falls under the 14th, not the 4th, amendment, so prisoner had to  show use of force was malicious and sadistic, not merely excessive, and plaintiff cannot prove  that guard did not "attempt" to kick plaintiff's arm when he kicked him in the face.

Jenkins v. Hennepin County, 8th Cir. Case No. 08-1058, 2/25/2009. Plaintiff is kicked in jaw during  drug arrest. Despite his complaints of severe pain, inability to chew or blow his nose, and visible  swelling, jail nurse fails to treat for 7 days. Since surgery, he has jaw numbness and discomfort.  Plaintiff sues under 1983, district court dismisses. Affirmed. Prisoner can't show that any delay  was detrimental to his ultimate recovery, so there was no "urgency." Mere negligence isn't enough  for constitutional violation.

Lytle v. Bexar County, 5th Cir. Case No. 08-50217, 2/23/2009. Officer, responding to report of  threats against an ex-girlfriend pursues vehicle; suspect crashes and stops. Officer approaches  and car begins to back up, so he opens fire, killing 15-year-old girl in the back seat. Family sues  under 1983, defendant's motion for QI SJM is denied. Affirmed. Material dispute re distance of  officer from vehicle when he opened fire, and whether it was still backing toward him or had  already started driving away. Prior US Supreme Court decision did not declare open season on  felony suspects fleeing in motor vehicles. Jury must assess details as to what danger was posed  by fleeing vehicle. Good review of various circuit cases finding use of deadly force against fleeing  vehicles excessive.

McCullough v. Antolini, 11th Cir. Case No. 08-10176, 2/26/2009. Following apparent drug  transaction, officers pursue truck, it skids to a stop in a parking lot. Driver fails to show hands when  ordered to, drives toward officer forcing him to jump on hood of his own car to avoid being struck,  starts driving away, officers shoot him to death. Family sues under 1983. District court denies QI  SJM dismissal. Reversed. Decedent's actions showed danger to public.

Tortu v. Las Vegas Metropolitan Police Dept, 9th Cir. Case No. 06-16663, 3/3/2009. Plaintiff was  arrested at Las Vegas Airport, when, having temporarily lost his ticket, he boarded the plane while  his partner retrieved the ticket. After being taken off the plane he argued with police, who, he  alleged attacked,  handcuffed, and then continued to beat him. After being placed in a police  vehicle, he claimed police squeezed his testicles. Medical examination supported plaintiff's  claims: testicles were bruised and swollen. At trial, the judge refused to give a QI instruction,  indicating it would entertain QI following the jury verdict. Following jury verdict finding one officer  liable, court dismissed on Rule 50(b) motion for JML and alternatively granted new trial motion.  Reversed. Failure to defendant to file 50(a) motion prior to verdict precludes grant of 50(b)  motion. Court's instruction re post-verdict QI hearing did not direct defendant not to file 50(a)  motion. As to grant of new trial, jury's finding against one defendant and in favor of others was not  a verdict against clear weight of the evidence. Defendant found liable was the one accused of  squeezing plaintiff's testicles. Court improperly took it's own view of the medical evidence and  disregarded jury's view of that evidence. Court also improperly found damages excessive,  ignoring various bases for compensatory and punitive damages.

Bridges v. Gilbert, 7th Cir. Case No. 07-1551, 3/4/2009. Guards retaliate against prisoner by  delaying his mail, interrupting his sleep, filing false disciplinary charge, falsely rejecting  subsequent grievance claims, after he provides witness affidavit in wrongful death action of fellow  prisoner who died following lack of medical treatment. Prisoner files 1983 action claiming violation  of 1st amendment rights to freedom of speech and to right to petition for redress of grievances.  Court dismisses for failure to state a claim. Reversed in part. Review of prisoner 1st Amendment  cases. Public employee "matter of public concern" test does not apply to state prisoners. No  legitimate penological interest in preventing truthful testimony by one prisoner on behalf of  another. However, testimony on behalf of another does not implicate right of access to courts or to  petition for redress of grievances. Bogus rejection of his subsequent grievances was ok – no  denial of redress of grievances, because he's able to bring them now in this lawsuit. So they were  properly dismissed from this lawsuit!

USA v. Poe, 10th Cir. Case No. 07-6237, 3/3/2009. Bail jumper is arrested by bounty hunters,  alleges 4th amendment violation. Trial court rules bounty hunters are not state actors. Affirmed.  They weren't acting on instructions or for benefit of police. State licensing of bounty hunters is not  enough to make them state actors.

Rodis v. City and County of San Francisco, 9th Cir. Case No. 05-15522, 3/9/2009. Lawyer who is  also a locally-elected government official goes into drug store, tries to spend 1985-vintage $100  bill which store thinks is counterfeit, he agrees to stay and await arrival of police to "settle the  issue." Police decide to handcuff and detain him at station pending instructions from Secret  Service. Secret Service confirms the bill is genuine and he is released after one hour. Suspect  sues under § 1983, and trial court denies defendants' motion for QI summary judgment, ruling that  lack of evidence re two crime elements, knowledge that bill was counterfeit, or intent to pass  counterfeit money, barred probable cause. Reversed. Other circuits have ruled that mere passing  of counterfeit bill is enough to establish PC to arrest. This circuit has not ruled on the issue – and  isn't going to now, either! No need, because circuit split would be basis for QI. As to whether jury  should decide on PC basis for believing a genuine bill was counterfeit – no need for that either. "It  is undisputed that Rodis's $100 bill looked odd, and that it lacked many modern security features."

Schmidt v. Magyari, 8th Cir. Case No. 07-3053, 3/2/2009. Riding in vehicle that is pulled over for  traffic violations, plaintiff, 20-year-old woman, gives false name, DOB and SSN. She is arrested  for false declaration and minor in possession of alcohol. Male police chief forces her to partially  remove her trousers to take picture of tattoo on her hip. She sues under 1983 alleging violation of  4th and 14th amendments, violation of Missouri's strip search law. District court strikes her police  procedures expert and photo of where the tattoo was and dismisses her claims on SJM. Affirmed.  Police procedures expert gave impermissible legal conclusions, not fact-based opinions. His  opinions on reasonableness of arrest that plaintiff did not challenge are not relevant. His police  experience (traffic patrolman, watch commander, public events security) did not relate to civil  rights issues or strip searches. Photo was provided by plaintiff counsel's legal secretary who had  no personal knowledge of condition of pants at time of incident, and they weren't the same pants,  or folded the same way, either. The search was not intrusive enough to qualify as a strip search.

Vaughn v. Gray, 8th Cir. Case No. 07-2921, 3/6/2009. Mildly obese man is jailed on sexual assault  charge, fills out medical intake form indicating various serious problems, mother brings his  anti-depressant medication. Jail fails to refill prescription and delays in distributing when they get it,  and he is without antidepressant for 4 days. He starts acting bizarre on 3rd day, e.g., drinking  shampoo. On 4th day he is throwing up but his request to see nurse is denied. Mother comes to  jail and is falsely told he is receiving his medications. Decedent's sister had also called and faxed  the jail to warn of his medical and mental disabilities and need for transfer to another facility. On  5th day jailers arrive to give him the medication they had withheld for a day but he is dead of a  heart attack. Family sues under 1983, trial court denies defendants' QI SJM. Affirmed. Jury  reasonably could find deliberate indifference on these facts.

Fisher v. City of San Jose, 9th Cir. Case No. 04-16095, 3/11/09. Plaintiff drinks beer while  watching sports on tv and cleaning his rifles in his apartment complex residence. After game  ends, he continues drinking and gun cleaning, occasionally reading from The Second Amendment  Primer. Security guard comes by about 1 am to inquire through the window about upstairs  neighbors (plaintiff lives on ground floor) who are playing loud music. Plaintiff tells security guard  to mind his own business, starts spouting off about 2nd amendment. Security guard decides to  call police about plaintiff, whose rifle supposedly at some point pointed at the security guard.  Police surround apartment, one makes contact with plaintiff, who rants about 2nd amendment, his  gun collection, and threatens to shoot officer if he comes on or near his property. Officer calls still  more police. Now there are 60 officers on the scene. For about 6 hours police hang around  watching, never bothering to obtain a warrant. Plaintiff continues ranting at police to leave him  alone, and threatening to shoot them. A "negotiating team" shows up, uses various tactics  appropriate to a hostage situation (there are no hostages however), including flash-bang and tear  gas. Nothing works. Finally after 12 hours he comes out, turns around, they shoot him with a  rubber bullet and arrest him. Jury deadlocks on various weapons charges and he pleads to  brandishing in front of a security guard. He sues under 1983, alleging false arrest and use of  excessive force. Jury defenses him, but judge grants JML on false arrest with nominal damages  of $1. Police appeal. Reversed en banc. Plaintiff was seized as of the start of the standoff. In  such a "fluid, uninterrupted engagement," once exigent circumstances are established, time does  not dissipate police authority to arrest without warrant.

Johnson v. Walton, 9th Cir. Case Nos. 07-55935, 07-56238 and 07-56547, 3/13/2009. LASD  deputy obtains warrant to search home of relatives of suspected massage parlor prostitution  ringleaders, with whom they live. Ringleaders later plead to tax evasion. District Court Judge Otero  denies SJM QI to deputy, grants SJM in favor of plaintiffs against deputy. Reversed. 9th Circuit  (Opinion by 8th Circ. Judge Myron Bright, joined by 9th Circuit Judges Trott and Hawkins) feels the  deputy's "expertise" was enough to estabish that prostitution owners "typically" keep evidence at  their homes.

Fontroy v. Beard, 3rd Cir. Case No. 07-2446, 3/10/2009. Department of Corrections implements  new policy concerning legal mail. Law requires legal mail to be opened in presence of inmates.  New policy requires lawyers to request control numbers from DOC. Attorneys fail to obtain the  numbers "despite repeated requests," so DOC stops opening mail in presence of inmates. Trial  court grants injunctive relief to inmates on SJM and denies defendants' SJM. Reversed; SJM  granted to defendants. Failure of certain of plaintiffs' attorneys to go through the procedure for  getting the control numbers is not violation of 1st amendment; there was a legitimate penological  interest in preventing contraband from being smuggled in using falsified attorney return  addresses, and there was evidence that examination not in prisoners' presence was more  effective.

McSherry v. City of Long Beach, 9th Cir. Case No. 06-55837, 3/30/2009. Plaintiff is imprisoned  14 years after police obtain from victim descriptions that match his home, car, and identification of  himself. DNA totally exonerates him, someone else confesses, and he is released. He sues  under 1983 for fabrication, witness coercion, false arrest. District Court (Judge Gary Klausner)  grants QI SJM. Reversed in part. There are issues of material fact in dispute based on plaintiffs'  evidence that later victim claimed never to have given the description; that descriptions attributed  to victim matched descriptions taken by police from plaintiff and became more detailed after  police had entered plaintiff's home, not to mention that victim obviously had never been in  plaintiff's home. Other evidence was enough to legalize the arrest, but fabrication of evidence  would rebut presumption of independent investigation by prosecutor. Officer is immune from  liability for perjured testimony, however. Reassignment request denied, as on prior successful  appeal.

Marella v. Terhune, 9th Cir. Case No. 07-55006, 4/14/2009. Prisoner, knifed by fellow prisoners,  files Section 1983 action against prison officials on grounds opinion omits, district court dismisses  for failure to exhaust administrative remedies. Reversed and remanded. District court failed to  consider whether untimeliness of filed grievance (not within 15 days of incident) was due to  impossibility, since plaintiff was in hospital, then ad seg, for 33 days, where he could not obtain the  necessary forms. District court also erred in dismissing due to failure of prisoner to appeal  rejection of his grievance after he was informed by prison that he could not make such an appeal.

Andrew v. Clark, 4th Cir. Case Nos. 07-1184, 07-1247, 4/2/2009. Baltimore Police Dept. Major  releases his internal memo urging investigation of death of a barricaded suspect to the media, and  is demoted and then ordered to retire. District court dismisses his section 1983 action under the  First Amendment, finding his speech remained part of his official duties and therefore not  protected. Vacated and remanded in part. Writing the memo was not part of his job: he had never  written such a memo before. In concluding that plaintiff had conceded that the memo was part of  his job, district court erred by taking that statement from defendants', not plaintiff's papers. The  issue of retaliation for filing suit was itself an issue of public concern, raising possible 1st  Amendment protection. Even an at-will employment position may have a protected property  interest where rules and procedures exist that establish an entitlement to "for-cause" termination.

Ortiz v. Flageole, 7th Cir. Case No. 06-2453, 4/1/2009. Inmate is denied Roman Catholic religious  materials, and also is denied access to legal materials for pro se criminal and civil litigation. Trial  court dismissed for failure to state a claim. Reversed in part and remanded. Court erred in not  requiring defendants to show evidence of a penological interest served by denying this prisoner  his religious requests, and simply ruling on the basis of the prisoner's complaint. Affirmed as to  denial of legal materials, because plaintiff failed to plead any actual injury resulting therefrom. No  discussion of whether denial of legal materials led to pro se prisoner's oversight in failing to plead  injury.

Martinez v. Beggs, 10th Cir. Case No. 08-6042, 4/21/2009. Deputies respond to report of fight in  progress, arrest decedent for drunk in public after being told that he has drunk an entire bottle of  whiskey, that he is talking as if hallucinating. Jail requires medical screening if prisoner's BAC is  over .30, but department policy is only to test BAC in DUI cases – purpose is to prove crime, not  protect prisoners. Jailers are also supposed to periodically check on drunk detainees, but in this  case don't. He dies of a heart attack, caused in part by alcohol. Family sues, court dismisses.  Affirmed. Reckless indifference requires awareness of specific ultimate harm. Here, jailers were  aware of danger of harm from acute alcohol poisoning, not heart attack and death.

McCown v. City of Fontana, 9th Cir. Case No. 07-55896, 4/24/2009. Attorney (John Burton)  settles case for $20,000, not including attorney fees, following summary judgment in which District  Judge Guilford dismisses most claims, but leaves claim of excessive force for Taser use.  Attorney files fee motion seeking $300,000+; court reduces it to $200,000. Reversed and  remanded. Court failed to explain how it reached the reduced figure; needs to take into account  plaintiff's level of ultimate success compared to the claims he lost on in summary judgment;  needs to assess what the public benefit of the litigation was. No discussion of whether such a  "level of success" analysis conflicts with attorney's ethical obligations to zealously represent  client's interest.

Silverbrand v. County of Los Angeles, Cal. Supreme Court Case No. No. S143929, Apr. 23,  2009. State prisoner seeks to appeal SJM dismissal of his medical malpractice action based on  SOL. He mails appeal notice within appeal notice deadline, but clerk marks it as filed upon receipt  – not upon mailing date. Appellate court dismisses appeal. Reversed. Pro se prisoner's mailbox  rule applies in prisoner civil appeals cases, same as in criminal appeals.

Morris v. Lanpher, 8th Cir. Case No. 08-2040, 4/24/2009. Police obtain search warrant for  residence, find no criminals, kick resident in face during search. Plaintiffs claim warrant was falsely  obtained. Trial court dismisses 4th amendment claim. Affirmed. Plaintiffs merely assert that the  officers testified falsely, and fail to provide affirmative proof.

Robinson v. York, 9th Cir. Case No. 07-56312, 4/27/2009. Police officer files complaints alleging,  among other things, use of excessive force and expressions racism by L.A. County officers, then  claims retaliatory denial of promotion, sues under Section 1983. Trial court denies defendants'  motion for dismissal. Affirmed. Competency and discriminatory conduct of police force are  matters of public concern. Balancing of department's interests raises material issue of dispute.

Cassady v. Goering, 10th Cir. Case No. 07-1092, 5/28/2009. Plaintiff is storing grain on his farm,  refuses access to the grain's owner, claiming failure to pay storage fees. A physical struggle  results and police are called. When police arrive, grain owner alleges the struggle resulted when  he found marijuana being stored. Police arrest plaintiff and conduct unsuccessful "security sweep"  of the farm's unlocked buildings. Remaining at farm, police obtain search warrant, while allowing  grain owner to take his grain away. Search discovers a large marijuana operation. Plaintiff returns  home and finds his farm and home trashed. Criminal charges are dropped because the search  was unlawful, due to lack of PC; overbroad warrant; and lack of good faith exception. Plaintiff sues  police under 1983. Jury finds for plaintiff. Defendant appeals denial of QI. AFFIRMED. Warrant  which authorized search for "any and all narcotics" and "any and all illegal contraband" and  basically anything else that could be illegal as the result of theft, embezzlement, etc., or whose  seizure was in any way authorized under state law, was not constitutionally particularized. Warrant  severability does not apply, because no portion is both constitutionally valid and severable, for  failure to describe distinct subject matter, and because valid parts do not comprise majority of  warrant.

Byrd v. Maricopa County Sheriff's Dept., 9th Cir. Case No. 07-16640, 5/18/2009. Jail inmate 1983  action arising from partial strip search by female guard when male guards were available. Trial  court dismisses equal protection claim and, following trial, grants JML re remaining claims.  AFFIRMED. Because plaintiff was a pretrial detainee, trial court properly re-characterized his 8th  amendment (cruel & unusual punishment) claim as a 14th amendment (substantive due process)  claim. Plaintiff failed to show membership in a protected class, or any discriminatory animus. Trial  court properly refused plaintiff's instruction re destroyed video evidence. Trial court did not err in  finding legitimate penal interest served by search. Pretrial nature of detention does not affect the  standard of treatment that is constitutional. Plaintiff failed to prove punitive intent, or deliberate  indifference to his special vulnerability to such a search. Cross-gender searches are not  necessarily unconstitutional, and court properly deferred to opinions of prison officials.

Clem v. Lomeli, 9th Cir. Case No. 07-16764, 6/2/2009. Inmate files pro se 1983 8th amendment  action arising from beating by cellmate alleging failure of guard to abate known risk, appeals  adverse trial verdict on basis of erroneous jury instruction. REVERSED. Model 9th Circuit  instructions failed to instruct on liability for failure to act as opposed to affirmative act.

Collier v. Montgomery, 5th Cir. Case No. 08-30665, 5/20/09. Plaintiff is found not guilty at trial of  not wearing seat belt, even though it was only fastened around his waist. He sues officer under  1983 for arresting him and failing to call his cardiologist despite chest pains. AFFIRMED. Officer  could arrest when he saw belt was not over plaintiff's shoulder; there was no basis for serious  concern about chest pains because plaintiff himself refused medical treatment.

Grawey v. Drury, 6th Cir. Case Nos. 07-2584, 08-1064, 5/28/2009. District court denies summary  judgment QI in claim of excessive force involving claims of pepper spray use without telling  suspect he is under arrest and he is not resisting arrest, discrimination against gays, handling of  legs while suspect was unconscious resulting in broken ankle. AFFIRMED.

Guzman v. City of Chicago, 7th Cir. Case No. 08-2172, 5/13/2009. Police search home, plaintiff  brings 1983 action for unlawful search as a result of incorrect warrant information, District Court  grants defendants SJM. REVERSED IN PART. Police lack of diligence in verifying informant's  information when applying for warrant was not enough for constitutional violation. But upon arrival  they should have seen the mistake. Discussion of cost-benefit analysis in suppression motions.

Haywood v. Drown, SCOTUS Case No. 07-10374, 5/26/2009. New York state passes law  transferring prisoner claims of damages against state corrections officers – including 1983 claims  – to NY Court of Claims – where they cannot obtain punitives, attorney fees, or injunctive relief.  HELD: the statute violates the Supremacy Clause.

War v. Marion Correctional Institution, 7th Cir. Case No. 07-2556, 3/23/09. Following cell  altercation, plaintiff is charged with rules violation, found culpable on the basis of false reports, and  sentenced to 240 days (8 months) of "segretation." Trial court dismisses. REVERSED. 8 months  of segregation constitutes "an atypical and significant hardship" that implicates a protected liberty  interest under the Due Process Clause.

Marion v. City of Corydon, 7th Cir. Case No. 08-2592, 3/23/09. Following pursuit based on reports  of shoplifting, police fire at driver as he again attempts to flee, wounding and injuring him. He  brings 1983 action for excessive force. Trial court dismisses on summary judgment. AFFIRMED.  Under the "totality of the circumstances" plaintiff was attempting to reenter the highway where he  would have endangered bystanders with his disabled vehicle, and run over officers who were in  his way.

Martin v. Russell, 8th Cir. Case No. 08-2577, 5/6/09. Plaintiff is arrested for violating vacated  protective order after wife tells officers that the protective order she got had been vacated. Trial  court dismisses subsequent 1983 action. AFFIRMED. Officers did not have to believe her.  Evidence in record does not satisfy reviewing court that the order had in fact been vacated.

Mason v. Correctional Med. Svcs., Inc., 8th Cir. Case No. 07-2814, 3/24/09. Prison housing unit  manager fails to send prisoner for emergency treatment, resulting in pain as prisoner goes blind.  Prisoner sues under 1983. Jury defenses and trial court denies JML. AFFIRMED. Jury could have  believed that manager believed that prisoner could have gotten emergency treatment in spite of  official's inaction, so he wasn't really indifferent despite ignoring the emergency.

McLean v. USA, 4th Cir. Case No. 06-7784, 5/21/2009. Prisoner seeks to sue legislators for law  he consider unconstitutional; trial court dismisses 1983 action without prejudice for failure to state  a claim. Before reviewing this dismissal, appellate court must determine whether he can proceed  in appellate court without paying fees, despite PLRA which denies indigent fee waiver to prisoners  with three prior dismissals of frivolous claims. HELD: Dismissal without prejudice does not qualify  an action as frivolous. Prisoner is entitled to fee waiver on appellate review of his meritless claim.

Unus v. Kane, 4th Cir. Case No. 07-2191, 5/6/2009. Federal agents and police obtain warrant to,  burst in at gunpoint, and search family home of suspected money-launderers for Middle Eastern  terrorist organizations operating phoney charitable organizations, in part on the basis of an  "experts" opinion that any believer in Islam is a terrorist. Apparently no criminal conviction resulted  because thereafter the family sues under Bivens and section 1983. Trial court dismisses the  claims and awards attorneys fees to defendants. Reversed as to the award of fees. Plaintiffs  claims were not frivolous, unreasonable, or groundless. Plaintiffs did amend their complaint to add  specific facts as ordered. A Georgia court's adverse ruling as to probable cause was not  controlling here, and the plaintiffs were not participants in that litigation. The claim arising from the  "expert"'s "off-the-wall" theory was unavailing, but not groundless.

Millender v. County of Los Angeles, 9th Cir. Case No. 07-55518, 5/6/2009. Ex-boyfriend assaults  woman and threatens her with sawed-off shotgun. Investigating detective sees he has a criminal  record; believes he is a gangmembers, seeks and obtains warrant. Police burst into and  unsuccessfully search home of suspect's family, they file section 1983 action, claiming no  reasonable officer could have believed the overbroad warrant was lawful. District court (Hon. Dean  Pregerson) denies defendants' motion for QI on summary judgment. REVERSED. A reasonable  officer could have believed the warrant, which authorized a search for any weapons, and any  evidence of gang relations (even though the crime in question had nothing to do with a gang) was  lawful, and, anyway, an assistant district attorney and judge signed it.

Poolaw v. Marcantel, 10th Cir. Case No. 07-2254, 5/4/2009. Deputies search and detain in-laws of  primary suspect in murder of another deputy. In-laws bring section 1983 action. District court  denies summary judgment qualified immunity. AFFIRMED. Family relationship is not enough to  support search or seizure.

Goodman v. Harris County, 5th Cir. Case No. 07-20816, 6/9/2009. Deputy chases cyclist for  riding on the wrong side of the road and allegedly fighting with him, releases dog. Cyclist is  allegedly drowning the dog and reaches for a "shiny object" in his pocket. Deputy shoots him to  death. Jury returns verdict against deputy on section 1983 claim, he appeals. AFFIRMED. Even  though deputy was the only living witness, forensic evidence reasonably established he was lying  (uniform not muddied by alleged altercation; victim's right arm was powerless as the result of an  earlier gunshot wound, so how could he wrestle with the deputy or drown the dog). Court did not  err by admitting testimony from psychiatric expert on credibility of deputy, because deputy  planned to bring in such evidence on credibility of decedent.

Cousins v. Lockyer, 9th Cir. Case No. 07-17216. Convicted sex offender is subsequently  convicted under California statutes requiring registration and notification with government of his  place of residence, and sentenced under 3 strikes to life in prison. The statutes are struck down  as unconstitutionally vague. He seeks release by habeas, but state keeps him imprisoned for  another year. He sues state officials under state and federal constitutions for false imprisonment.  District court finds qualified immunity and dismisses his claims. REVERSED IN PART as to the  state claims only. No qualified immunity under state law.

Cordova v. Aragon, 10th Cir. Case No. 08-1222, 6/17/2009. Truck-driving thief of construction  equipment is pursued by police vehicles. He tries to ram some of them and ends up driving on the  wrong side of the highway. As he passes by, an officer shoots him in the back of the head. District  court dismisses family's claim on QI summary judgment. AFFIRMED. True, without evidence that  there were other motorists in the vicinity, or that they would have been unable to avoid the truck,  this use of deadly force was not lawful. However, the right was not clearly established.

Lahr v. National Transportation Safety Board, 9th Cir. Case Nos. 06-56717, 06-56732, 07-55709,  6/22/2009. Former Navy and commerical pilot doesn't believe NTSB explanation of explosion of  TWA flight over Long Island, seeks information through over a hundred FOIA demands, not all of  which are complied with, he sues and district court (Hon. Howard Matz) orders some more  documents disclosed. AFFIRMED IN PART. Some of the FOIA exemptions applied, others  didn't.

Friedman v. Boucher, 9th Cir. Case No. 05-15675, 6/23/2009. Convicted of sexual intercourse  without consent, plaintiff serves his sentence and is released, not on parole or probation. After  moving to another state, while jailed on other charges, detective has his DNA forcibly removed  without a warrant for storage in a cold case data bank. Plaintiff sues under section 1983, district  court dismisses on summary judgment QI. REVERSED. "Special needs" exception to warrant  requirement is only for non-law enforcement purposes. Statute of state where he was convicted  does not apply because he was no longer in that state (and state statute is no guarantee of  constitutionality anyway) and wouldn't apply to him anyway for various reasons. Finally, even  pretrial detainees are not subject to suspicionless searches.

Moldowan v. City of Warren, 6th Cir. Case Nos. 07-2115/2116/2117, 7/1/2009. Convicted in part  on false testimony by police "bite-mark" experts, and concealment of exculpatory evidence,  plaintiff is imprisoned 12 years until they recant. He sues. District dismisses. AFFIRMED IN  PART. Police witnesses enjoy absolute immunity for trial testimony. Police share Brady obligation  to disclose exculpatory evidence, as well as false imprisonment liability, so concealment of  witness statements may incur liability, both for officer and municipality through failure to train; lack  of proof that other evidence destruction was with knowledge of its exculpatory nature fails to give  rise to a claim. Expert's manipulation and fabrication of evidence is also subject to valid claims  under 4th, 5th, 6th, and 14th amendments.

Stainback v. Dixon, 7th Cir. Case No. 08-3653, 6/30/2009. Police tear both plaintiff's rotator cuffs  handcuffing him. He sues. District court dismisses on SJM QI. AFFIRMED. Torn rotator cuffs  weren't enough. Plaintiff failed to specifically to state what about the manner of handcuffing was  excessive force. "Mr. Stainback claims only that the
Officers ‘quickly' put his arms behind his back and handcuffed him."

Nelson v. Miller, 7th Cir. Case No. 08-2044, 7/1/2009. Prisoner wants to follow no-red-meat diet in  keeping with Catholic beliefs. Prison chaplain disagrees with his beliefs, refuses to approve the  diet. District court dismisses in part, then defenses on remainder following bench trial.  REVERSED IN PART. Prisoner should not have been required to prove some formal basis for  his beliefs, and the requirement that he accept a totally meatless diet deprived him of nutrition.

Hopkins v. Bonvicino, 9th Cir. Case No. 07-15102. Plaintiff is involved in traffic injury resulting in  neither injury nor damage, but angry other driver follows him home and reports to police he had  alcohol on his breath. Plaintiff watches tv in his basement and ignores or doesn't hear police  banging on his door. Police force entry to plaintiff's home, handcuff and arrest him at gunpoint,  then formally execute a citizen's arrest outside. District court denies SJ dismissal. Police appeal,  raising ridiculous arguments. Reinhardt opinion amusingly demolishes these arguments in spirited  defense of 4th amendment, emphasizing that the exigency exception is supposed to be a narrow  one, and that the emergency exception requires a reasonable basis. "The officers' explanation for  their warrantless entry is both simple and audacious: They claim that, after hearing that Hopkins  had the smell of alcohol on his breath, they feared he was on the brink of a diabetic coma and  broke into his house in order to offer medical assistance." Furthermore, probable cause to arrest  cannot be based solely on a victim's statement – the officers failed to conduct any further  investigation prior to arrest. Plus the alleged crime was only a misdemeanor. Subsequent  California Supreme Court support for police argument is unavailing in this federal court. However,  although the other motorist's citizen's arrest is not a defense, given the lack of probable cause for  a hit and run arrest (no vehicle damage), that fact was not clearly established, so no false arrest  liability as to the second arrest.

Giles v. Kearney, 3rd Cir. Case No. 07-4140, 7/15/2009. Transferee prisoner argues with entry  procedures, curses guard who enters shower to turn on water; guard pepper-sprays him and he  strikes guard in the mouth. Guards sit on his back, kick him in the ribs and punch him in the face in  order to handcuff him. Nurse observes possible symptoms of broken ribs, schedules prisoner for  exam the following day. That night he experiences pain, pounds on door and demands medical  treatment, which is refused following nurse exam. The following day he is x-rayed and treated for  broken rib and collapsed lung. He pleads guilty to misdemeanor assault for striking the officer in  the face. District court dismisses some of his claims, and, following bench trial, finds prisoner less  credible and defenses the remaining claims. REVERSED IN PART as to dismissal. Qualified  immunity does not protect officers who kick in the ribs and punch in the head a prisoner already  restrained on the ground [sic], if, as he alleged, he had stopped resisting, hence a material dispute  of fact.

Mays v. Springborn, 7th Cir. Case No. 05-3630, 7/16/2009. Prisoner complains, gets memo from  prison security chief prohibiting routine strip searches of prisoners going to and from work  assignments. Guards continue to conduct the strip searches. Prisoner shows guards memo.  Guards conduct extensive mocking search of his anus, then lock him in cell with too-short hospital  guard while guards wait for him to defecate. After transfer to another facility he is strip-searched  again in view of other prisoners. Prisoner sues about the searches and retaliation, as well as  complaints about food, clothing, and censorship of a magazine he received in the mail. District  court grants JML on all claims. VACATED AND REMANDED IN PART. Prisoner could have  proved to jury that manner in which searches were conducted showed intention to harass, rather  than a legitimate penological purpose. Dismissal of the retaliation claims was also improper: JML  cannot be based on a credibility determination by the court.

Pilgrim v. Luther, 2nd Cir. Case No. 07-1950-pr, 7/6/2009. Prisoner is disciplined for printing  pamphlet urging work stoppages. AFFIRMED. Prisoners do not have the same First Amendment  rights as other citizens. Prison has a legitimate penological interest in preventing prisoners to  organize a union.

Garczynski v. Bradshaw, 11th Cir. Case No. 08-16100, 7/7/2009. Wife informs police of  separated husband's suicidal intentions with firearm. They use her hours-long phone conversation  during which she calmed him and moved to a discussion of reconciliation of their marriage, to  locate him near a car parked at the beach, then have her direct him to get in the car and start the  engine, whereupon they shoot him to death. District court dismisses the subsequent federal  claims. AFFIRMED. Decedent's failure to obey officers' commands to drop his gun is all that  matters to this court.

Moore v. Hartman, DC Cir. Case No. 08-5370, 7/7/2009. Manufacturer's scanning design is  rejected by US Post Office, he lobbies for a change of policy, ends up being indicted and tried,  unsuccessfully, for conspiring to bribe and defraud decisionmakers. Following acquittal he sues  on malicious prosecution theory. District court dismisses. VACATED AND REMANDED. Lack of  probable cause is an element of a mal pros Bivens claim, but grand jury indictment does not  establish PC as a matter of law, it is only prima facie, rebuttable evidence.

Conn v. City of Reno, 9th Cir. Case No. 07-15572, 7/24/2009. Mentally disabled woman screams  her suicidal intentions and attempts to strangle herself with seatbelt as police transport her into  civil protective custody. They fail to notify jail personnel or take her to a hospital. She is released  from protective custody, detained and jailed again on a misdemeanor charge and hangs herself in  her cell. Family sues, district court dismisses on SJM. REVERSED AND REMANDED. Her  suicide attempt raised an issue of fact for the jury as to whether police were aware of a "serious  medical need." Prior medical evaluations that disagreed on the likelihood of self-harm did not  dispel that issue. The officers' belief that the self-choking was merely her attempt to manipulate  them is not dispositive, despite the subjective nature of the indifference prong. Circumstantial  evidence raised an issue that should have been submitted to the jury. Furthermore, the  municipality had failed to implement suicide prevention training and policies prior to this incident.

Smith v. Ozmint, 4th Cir. Case No. 07-6558, 7/31/2009. Prison forcibly shaves prisoner's head  despite his religious belief claims. He sues under Religious Land Use and Institutionalized  Persons Act (RLUIPA) and claiming US constitutional violations: use of excessive force. District  court dismisses on SJM. REVERSED IN PART. Court erroneously relied on affidavit, filed in  another case, which failed to identify specific prison needs met by the grooming policy. As to  excessive force claim, however, although plaintiff and defendants' versions of the force used  differ, appellate court has viewed the videotapes prepared by defendants and finds no  constitutional violation.

Dobbey v. Illinois Dept. of Corrections, 7th Cir. Case No. 08-2828, 7/28/2009. Black prisoner  complains when noose is displayed by guards, publicizes the incident. The complaint goes  nowhere, but in retaliation, false disciplinary charges are sustained against the prisoner. Prisoner  sues, district court dismisses. REVERSED IN PART. The noose was offensive, but not a credible  threat of harm. However, retaliation for the complaint may have violated the First Amendment.

Talamantes v. Leyva, 9th Cir. Case No. 06-55939, 8/6/2009. Plaintiff at MCJ is placed in ad seg  without food or toilet paper; guards allow inmates to enter cell with knives and watch as they attack,  then medical unit refuses proper medical treatment. After release he sues. District Court (Gary  Feess) dismisses for failure to exhaust administrative remedies under PLRA. REVERSED.  Administrative remedy requirement does not apply to prisoner after release.

Boyd v. City and County of San Francisco, 9th Cir. Case No. 07-16993, 8/7/2009. Following  decedent's two separate abduction attempts, police engage him in high-speed chase during  which he shoots at them and they return fire. After stopping and being surrounded, he does not  fully comply with orders to surrender, instead turning back toward his vehicle after getting out of it.  Police shoot him to death. Family sues, jury defenses. AFFIRMED. Trial court properly admitted  evidence of prior incident during which, according to police, he screamed at them to kill him;  testimony of psychiatric expert that fatal incident was "suicide by cop", lawsuits he and his family  had previously filed against police; evidence of drugs in his system during fatal incident; printed  rap lyrics in his car advocating murder of police. All of this was relevant to issue of whether  decedent was in fact reaching into car when shot, or simply leaning against car waiting for  assistance in being taken to the ground due to fact he had two prosthetic legs. Psychiatrist  satisfied Daubert inquiry, in part because family failed to present any evidence or testimony  inconsistent with the "suicide by cop" theory. Some of the rap lyrics were erroneously admitted,  but the error was not prejudicial.

Davis v. Barrett, 2nd Cir. Case No. 08-0479, 8/13/2009. Prisoner is ordered placed in ad seg for  55 days, placement is reversed after 41 days because hearing officer failed to interview  confidential informants alleging prisoner extorted commissary products from weaker inmates and  simply relied on correctional officer's report, prisoner then sues under § 1983, district court  dismisses. VACATED AND REMANDED. Exhaustion of administrative remedies die not require  prisoner to separately grieve the conditions of ad seg because he was only seeking remedy for  improper hearing – not for the ad seg conditions themselves. Although "restrictive confinements"  of under 101 do not generally raise a "liberty interest" warranting due process protection, if the  prisoner can show conditions that are "more onerous than usual" then there may be a liberty  interest. Court erred in granting dismissal because there was a material dispute as to whether  prisoner's conditions were "more onerous than usual." Court failed to assume the truth of  prisoner's sworn assertions re those conditions, e.g., his cell was flooded daily and subject to  feces and urine thrown by other inmates.

James v. Harris County, 5th Cir. Case No. 07-20725, 8/4/2009. Decedent is pulled over for  speeding, arresting officer finds handgun in vehicle, takes decedent to patrol vehicle, allegedly  without handcuffing. Officer asserts that in the course of handcuffing him in the patrol vehicle, the  prisoner went for the officer's gun, so the officer was forced to shoot the prisoner in the back, and  three times in the face. Family sues, jury hangs, court dismisses case against employer county on  JML. AFFIRMED. Family failed to show that individual officer was aware of the county's policy of  not investigating police shootings. Expert's opinion that such knowledge would be commonly  shared was properly excluded from evidence.

Baird v. Renbarger, 7th Cir. Case No. 08-2436. Officer brandishes 9mm submachine gun while  detaining suspects in 2-hour search and investigation of VIN alteration which ends with no finding  of unlawful alteration. District court denies SJM QM. AFFIRMED. Crime alleged was not  sufficiently severe; compliant suspects posed no threat; nor were they actively resisting or fleeing.  Mere fact that police did not yet know the identities of the suspect is inadequate justification.  There is no physical injury requirement in the 7th Circuit for 4th Amendment claims. Citation to of  cases from other circuits so holding.

Malik v. District of Columbia, DC Cir. Case No. 08-7046, 8/4/2009. Prisoner of private prison  corporation is transported, shackled, on 40-hour bus ride deprived of water and asthma inhaler,  unable to use restroom, causing him and others to urinate and defecate on themselves, retaliation  for participation in prior class action. Prisoner sues under 8th Amendment, district court dismisses  for failure to exhaust administrative remedies. REVERSED AND REMANDED. Private firm didn't  allow grievances for such transfers, so there was no administrative remedy to exhaust. The  retaliation claim could be construed as a motive only, not a separate claim, and even as a  separate claim could have been excluded from the exhaustion requirement due to the  no-transfer-grievance policy.

Stoot v. City of Everett, 9th Cir. Case No. 07-35425, 8/13/2009. 4-year-old at school accuses  14-year-old of sexually molesting her the year before; police detective coerces confession from  plaintiff's child in principal's office; state court dismisses the case; parents sue; district court  grants SJM dismissal on all claims. REVERSED IN PART. The 4-year-old's statements were too  confused and contradictory to provide PC, but the detective is still entitled to QI because no case  clearly stated that police cannot rely on uncorroborated, confused, and contradictory statements  of a 4-year-old to make an arrest. However, plaintiffs' 5th Amendment claim was erroneously  dismissed because the filing of criminal charges is enough of a "use" of a coerced statement on  which to base a claim, despite subsequent pre-trial dismissal, and a jury could reasonably  conclude that the detective's conduct was not superseded by independent prosecutor decision in  merely filing the charges.

Shomo v. City of New York, 2nd Cir. Case No. 07-1208, 8/13/2009. Prisoner is denied medical  treatment recommended by doctors for partial paralysis; files § 1983 action alleging medical  indifference 8th Amendment violation and under ADA, applying "continuing violation" doctrine to  defeat statute of limitations problems. District court dismisses all claims against all defendants, in  part on pleading and in part on SJM. VACATED AND REMANDED IN PART. When treating  physicians are deliberately ignored, a deliberate indifference claim may lie, and a pattern of such  conduct may constitute a policy triggering the continuing violation response to defeat an SOL  defense.

Manzanares v. Higdon, 10th Cir. Case No. 07-2156, 8/10/2009. Police are invited into home of  rape informant at 6 AM. After some discussion of the case he wants to end the interview; they  don't, so they stay and handcuff him. He then admits remembering the suspect's last name, so  they put him handcuffed into patrol car and bring him to suspect's residence, where he is kept for  about 7 hours with radio blasting and heat turned up full while they await warrant, make arrest, and  write reports, causing dry heaves, headache, dehydration. ("For his cooperation, Manzanares was  repaid many times over.") Arizona jury defenses § 1983 claims and court denies JML.  REVERSED AND REMANDED FOR ENTRY OF JML IN PLAINTIFF'S FAVOR AND FOR  TRIAL ON ISSUE OF DAMAGES ONLY. Consent entry 4th Amendment exception is limited to  the scope of the consent. Belief that witness is withholding knowledge of a crime does not  constitute PC for the crime of obstructing, or for belief witness will interfere with investigation so  as to justify detention in home. As to patrol car detention, per SCOTUS, detention over 90 minutes  is arrest. The use of handcuffs generally turns a detention into an arrest. No basis for handcuffing  and holding in back seat – police "standard procedure" cannot govern issue of constitutionality.  Ambiguity of line between detention and arrest does not grant QI – precedent establishes clear  guidelines.

Sanders-Burns v. Cabezuela, 5th Cir. Case No. 08-40459, 8/7/2009. Police responding to report  of neighbor dispute kill one disputant by leaving him handcuffed face down while questioning  others in the house, resulting in positional asphyxia. Family erroneously sues officer under § 1983  and 14th Amendment in official capacity only, is allowed to amend to add individual capacity, then  individual case is dismissed because amendment fell outside SOL. REVERSED IN PART.  Amendment from official to individual capacity can relate back, depending on case circumstances.  Here, there was no prejudice, and there was true error, not calculated strategy by plaintiff, so the  case relates back. E.g., answer to complaint included affirmative defense of QI. Good review of  other circuit opinions on this issue.

Rodriguez v. Plymouth Ambulance Service, 7th Cir. Case No. 06-4260, 8/18/2009. Prisoner  needs hospital care, complains repeatedly that IV is causing pain, but nurses and doctors at  various medical institutions refuse to do anything for 4 days, by which time his arm is severely  infected; pain is ongoing. He sues; district court agrees that hospital may have been acting under  color of authority, but dismisses 8th Amendment claim. AFFIRMED AND REMANDED IN PART.  Detailed and lengthy analysis by Posner of various bases for private corporations incurring § 1983  liability. The failure to remedy the botched IV insertion and its effects are enough to trigger 8th  Amendment medical indifference liability. Circumstances of one medical facility do establish color  of law, however there is no allegation of a Monell-like policy, so that hospital also was properly  dismissed. But identities of unnamed individual defendant health professionals can be discovered  and they can be individually sued.

Hanes v. Zurick, 7th Cir. Case No. 09-1043, 8/18/2009. In ongoing disputes with neighbor, plaintiff  is arrested 8 times – never her neighbor – and all criminal charges against her are always dropped  later; she sues under § 1983 and 14th Amendment alleging discrimination against her as a class  of one; district court denies SJM dismissal. AFFIRMED. Single plaintiff's claim for unequal law  enforcement may lie, especially where motive of personal animus is alleged. Although SCOTUS  recently ruled in Engquist that public employers cannot be liable for class-of-one equal protection  violations, that case is limited to its context. Here, police discretion to act (and resulting insulation  from class-of-one claim) is narrower than that of government employers, because, e.g., police  must be able to point to articulable facts when making a detention, and employer decisions are  subjective, whereas subjective intentions are irrelevant to a 4th Amendment analysis.

Fairley v. Andrews, 7th Cir. Case No. 07-3343, 8/20/2009. Guards violate prison code of silence,  file internal complaints and later threaten to testify in civil case on behalf of inmates injured in  beatings by other guards, so other guards begin to harass them. Finally they do testify for the  inmates (jury defenses the inmates), and quit working at the prison. The former guards then bring  this action. District court rules that evidence of harassment, which preceded their pro-inmate court  testimony, is irrelevant to their present retaliation claim because only their pro-inmate testimony  was protected speech, (prior internal reports of fellow guards' misconduct was unprotected as  part of guards' job), and dismisses with plaintiffs' "consent" ("[I]f you are still saying that you  concede that you cannot prove causation in your case based on the Court's rulings, then I will  grant judgment for the defendants on that issue, and you can take it all up to the Seventh Circuit.")  However, the case is still appealable, because acknowledging case's hopelessness in light of  judge's reasoning is not the same as abandonment. REVERSED AND REMANDED IN PART in  cunning opinion by Easterbrook. True, plaintiffs' early internal complaints were not protected  speech. Although the unprotected speech doctrine only insulates employers, not fellow guards,  from 1st Amendment claims by whistle-blowers, here, plaintiffs have unfortunately alleged that the  guards were acting pursuant to the employers' code of silence. However, this appellate court will  substitute the words "prior restraint" for the unfortunate word "retaliation" in the plaintiffs' claim,  rendering the prior harassment unlawful, because no one, not even a government employer, can  intimidate a witness from later testifying, because such testimony is protected speech.

McRaven v. Sanders, 8th Cir. Case No. 08-3543, 8/20/2009. Decedent is arrested for driving  intoxicated, jail learns he has taken large amounts of all sorts of drugs, finds that he is very sleepy,  jail nurse rejects notion of taking him to hospital, 4 hours later another detainee is put in the cell,  "notices" he is not breathing. Family sues, court denies defendants' SJM. AFFIRMED. Deadly  danger from drug overdose was too obvious to officers for them to rely on nurse's opinion,  despite being a health professional.

Okin v. Village of Cornwall-on-Hudson Police Dept., 2nd Cir. Case No. 06-5142, 8/18/2009.  Plaintiff's husband, pal of local police, began beating her, breaking her bones. Her complaints to  police were essentially ignored. She later sues under § 1983 and 14th Amendment. District court  dismisses all her claims. REVERSED IN PART. Department's inaction may have encouraged  later abuse, satisfying state-created-danger theory for 14th Amendment due process claim, and  such conduct is enough to shock the conscience.

Crawford v. Clarke, 1st Cir. Case No. 08-2100, 8/24/2009. Prisoners in ad seg are denied Muslim  prayer meetings, even by closed-circuit TV. They sue under the Religious Land Use and  Institutionalized Persons Act ("RLUIPA") seeking injunction. District court grants the injunction.  AFFIRMED. CC TV was least intrusive means of satisfying prison's security concerns.

Limone v. USA, 1st Cir. Case No. 08-1327, 8/27/2009. On evidence of FBI informant, plaintiff,  among others, is falsely convicted of gang murder, jailed for life. 30 years later, FBI discloses that  it had suppressed substantial exculpatory evidence – they knew all along from a hidden  microphone and other informants that the plaintiff had not committed the murder – and lied to  prosecutors saying the false story "checked out." Even after the convictions, when plaintiff  pursued post-conviction relief over the decades, the FBI continued to suppress its evidence and  block appeals. Plaintiff sues under FTCA and, in bench trial, is awarded $100 million in damages.  AFFIRMED. The court erred in not dismissing the mal pros claim, not because the amendment to  the FTCA permitting such claims against law enforcement occurred after the filing of this action,  but because the FBI did not institute the criminal charges, state prosecutors did. However, the  IIED claim stands, in part precisely because of the missing element in the mal pros claim, and in  part because IIED requires proof of extreme and outrageous, not merely malicious conduct  (these aspects distinguish it from a mal pros claim, which may have been barred because it  preceded amendment). The discretionary exception does not apply to unconstitutional denial of  due process. The damages are high but do not shock the conscience or represent a miscarriage  of justice. Note: You will need to know (or look up) a host of challenging vocabulary words and  expressions, e.g.: decretory, timeous, tamisage, airtels, correlator, agnate, congeners – in order  fully to enjoy the 1st Circuit's curiously Scrabble-worthy opinion.

Cruz v. Safford, 7th Cir. Case No. 08-3083, 8/28/2009. Prisoner brings § 1983 action claiming  guard reached into cell and choked him. At trial he objects to erroneous jury instruction requiring  jury to find two facts which jury actually did not have to find – one a matter of law (prisoner has right  to protection against use of excessive force), the other a fact conceded by defendants (color of  law). He is not allowed to bring up in cross-examination officer witness' prior six arrests to show  "poor memory" (officer stated at depo he had only two prior arrests). Jury defenses; plaintiff  appeals. AFFIRMED. Jury instruction was confusing, not misleading. Of the six prior arrests only  one resulted in conviction, so not very probative – no discussion of whether knowing that officer  had misstated under oath at depo that he'd had only two prior arrests might have impacted jury  perception of his credibility.

Lewis v. Downey, 7th Cir. Case No. 08-2960, 9/4/2009. Hunger-striking prisoner fails to respond  to command to stand up in cell; officer tasers him. He sues pro se under 8th amendment and  Section 1983. District court dismisses. REVERSED IN PART. After reviewing authority that  stands for principle that pro per prisoner claim erroneously brought under 8th Amendment ("cruel  and unusual" punishment) must still be considered under 14th Amendment (any punishment at all  of pretrial detainee), appellate court still decides to consider the case under the former standard,  because prisoner only argued for 8th Amendment protections. Magistrate judge erred in calling  use of Taser a de minimis use of force, because pain, not injury, is the measure. Issue under 8th  Amendment is the "mind-set" (maliciously and sadistically to cause harm) of the shooting officer,  which remained under dispute, in absence of any threatening behavior from plaintiff.

Al-Kidd v. Ashcroft, 9th Cir. Case No. 06-36059, 9/4/2009. Plaintiff is arrested at airport ticket  counter, detained under torturous conditions for 16 days, then placed under travel restrictions,  probation, and compulsory home "visits," for use as witness in trial against another man. No  crimes were alleged against him. Arrest warrant was obtained on the basis, in part, of false and  concealed information, e.g., that his ticket was two-way to Saudi Arabia, not one-way as alleged;  that he was a US citizen as were his wife, parents and children. He was never called to testify. He  files Bivens action against US Attorney General who promulgated policy of using witness statute  as pretext for detaining suspects without sufficient evidence. District court denies motions to  dismiss. AFFIRMED IN PART. Assistant AG admitted in public statement that the arrest was for  investigative purposes, taking it out of traditional prosecutorial function and absolute immunity.  Plaintiff has enough circumstantial and other facts to survive Twombley standard of raising right to  relief above speculation. Because material witness seizure is not based on 4th Amendment,  subjective purpose becomes relevant to 4th Amendment analysis – here, the purpose was crime  control, not securing witness testimony. Despite absence of precedent, the rights violation at  issue was obvious (which may account for the lack of precedent). Interesting recital of 4th  Amendment's origins in relation to 1st Amendment exercise.

Goodman v. Harris County, 5th Cir. Case No. 20816, 6/9/09. Decedent ignores officer trying to  stop him for riding his bicycle the wrong way. Officer sets dog on bicyclist, then shoots him to  death, claiming decedent had a "shiny object" in his hand while trying to drown the dog. Jury finds  for plaintiff, awards $2 million, damages, $3 million punitives. Officer appeals. AFFIRMED. Officer  asserts that the only eyewitness testimony was his own, therefore jury could not find liability –  evidence could only have impugned his credibility, not proved decedent's case. But officer  concedes his use of force killed decedent, and overlooks circumstantial evidence that  contradicted the basis for his reasonable use of force, e.g., decedent's right arm was virtually  useless due to a 3-month-old unhealed gunshot wound. Also, an expert testified that the officer's  improper handling created the situation. Psychological evidence about officer's state of mind  became admissible when defendant stated he would prove decedent's state of mind on the night  in question. The psychologist properly testified as to the officer's cognitive problems, e.g.,  memory lapses. Court properly admitted psychological testimony that officer had  anger-management problems, acted impulsively, saw decedent as a "bad guy" and precipitated  the confrontation. Even if beyond proper scope, the error was harmless.

Whittier v. Kobayashi, 11th Cir. Case No. 08-12998, 8/31/09. Decedent is shot to death after  SWAT team enters on charge of selling marijuana and possession of guns. Operational plan  called for knock-and-announce prior to entry, and, indeed, all officers but one clearly heard a loud  and clear knock and announce. However, three neighbors, who were listening, and claimed they  would have heard, heard nothing. District court denies QI SJM. REVERSED. Officers' subjective  judgment about need for knock-and-announce is irrelevant, as is whether there were actual exigent  circumstances. Standard is "'arguable' reasonable suspicion" that exigent circumstances existed.  The combination of guns, drugs, and (unspecified) "criminal history " were enough for that  standard. No need to knock and announce.

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