Governmental Liability Volume 27 Issue 2 | Recent Cases of Interest

Fourth Circuit

Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. June 24, 2021)

In an en banc opinion issued in June 2021, the Fourth Circuit Court of Appeals ruled that the that the City of Baltimore Police Department’s first-of-its kind warrantless aerial surveillance program violated the Fourth Amendment, because it “enables deductions about ‘what a person does repeatedly, what he does not do, and what he does ensemble,’ which ‘reveal[s] more about a person than does any individual trip viewed in isolation.’” Plaintiffs, a group of community activists, brought this action to challenge a public-private partnership that sought to surveil the City of Baltimore, using multiple planes scheduled for distinct orbits that covered about 90% of the area of the city for 12 hours per day (referred to as “Aerial Investigative Research,” or “AIR”). Private AIR contractors used the surveillance data to track individuals and vehicles from scenes of reported serious crimes (homicides and attempted murder, shooting with injury, armed robbery, and carjacking), and issued reports to BPD officers with information to aid the investigation, including: “observations of driving patterns and driving behaviors; the tracks of vehicles and people present at the scene; the locations those vehicles and people visited; and, eventually, the tracks of the people whom those people met with and the locations they came from and went to.” Data was stored on the contractor’s servers and deleted after 45 days.

Plaintiffs sought a temporary restraining order and preliminary injunction, which were denied by the district court. The decision was appealed the same day and appellate proceedings were accelerated, and the original Fourth Circuit panel that heard this case affirmed the district court’s decision. After a petition for rehearing en banc was granted, the majority of the Fourth Circuit judges reversed the district court’s decision, with two concurring opinions and a dissent.

Relying on Carpenter v. United States, 138 S. Ct. 2206 (2018), where the United States Supreme Court ruled that accessing records of cell-site location information to deduce an individual’s past movements was a “search,” the majority held that the community activist plaintiffs were likely to succeed on the merits of their Fourth Amendment claim. BPD had argued that precedents approving warrantless pole cameras and flyover photography should apply, and that CSLI data was far more intrusive, efficient, and reliable for tracking an individual’s movements. When the district court denied injunctive relief to plaintiffs, it held that the AIR program’s tracking of individuals was not sufficiently comprehensive (as footage was not captured for half the day or at all on days of inclement weather) or specific (individuals were no more than dots on the landscape) to violate any person’s expectation of privacy in their physical location and movements, as established in Carpenter. The Fourth Circuit majority rejected that distinction, interpreting Carpenter to draw a solid “line between short-term tracking of public movements—akin to what law enforcement could do ‘[p]rior to the digital age’—and prolonged tracking that can reveal intimate details through habits and patterns.” The Court held that the AIR program’s tracking fell into the second category, because it yielded enough data through multi-hour blocks showing the same location over a month and a half to identify the people behind the anonymous dots through their habitual movements, such as from home to work, and then trace those individuals’ locations, movements, and interactions.

The Fourth Circuit held further that the search took place when AIR program collected data, not later, at the time when contractors distilled the data to furnish leads to BPD detectives, because the AIR data enabled the deductions. Although the information gained from AIR data was much more time and labor-intensive to obtain than obtaining details about the inside of a home from its thermal image, it was the initial data-gathering that enables the deductions in the first place. Accordingly, the Fourth Circuit held that BPD could not engage in warrantless collection of the data. In support of its decision, the Fourth Circuit reflected further that Baltimore is already “over-surveilled” and “over-policed,” which tends to result in disproportionate arrest rates and exposure to police violence in minority communities.

Katherine Barber-Jones
Hartzog Law Group LLP
Raleigh, North Carolina

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Sixth Circuit

Taylor v. City of Saginaw, Michigan and Hoskins, 20-1538/1588 (Aug. 25, 2021) (to be published)

This Fourth Amendment § 1983 action relates to the City of Saginaw’s practice of chalking tires parked downtown to enforce its parking regulations, and whether the administrative-search exception to the warrant requirement applied. Appellant-Plaintiff, Taylor alleged that she had received several tickets form the City for leaving her car downtown beyond the time allowed by city ordinance, and each time the parking enforcement officer, Hoskins, had chalked the tires of Taylor’s vehicle several hours before issuing the ticket, which noted the time the vehicle was first “marked” with chalk.

In a prior decision, the Court had ruled that the practice is an illegal search under the Fourth Amendment. Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019). Specifically, it was (i) a search for Fourth Amendment purposes under the property-based Jones test because it was “a physical trespass to a constitutionally protected area with the intent to obtain information[;]” and (ii) because it was conducted without an authorizing warrant, it was presumptively unreasonable. United States v. Jones, 565, U.S. 400, 406 (2012); and Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The Court also ruled that the government had not met its burden in establishing that the community caretaking and motor-vehicle exceptions to the warrant requirement applied in this case. Liberty Coins, LLC v. Goodman, 880 F.3d 274, 281 (6th Cir. 2018)

In its August 25, 2021 opinion, the Court also ruled that the administrative-search exception to the warrant requirement did not apply to the “suspicionless tire chalking” in this case. In order to fall within this exception, (i) the search must be conducted for an administrative purpose pursuant to a regulator scheme in which (ii) the government met “reasonable legislative or administrative standards” by “balancing the need to search against the invasion which the search entails;” and (iii) “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 536-38 (1967); and United States v. Patel, 576 U.S. 409, 420 (2015).

Because there was no precompliance review option, the administrative-search exception did not apply. Further, as the practice did not fall within the limited sub-classes of administrative searches that do not require the precondition (including practices involving “closely regulated industries” posing “a clear and significant risk to the public welfare[;]” or cases where the practice “was designed to serve special needs, beyond the normal need of law enforcement”), the Sixth Circuit reversed the trial court’s decision granting summary judgment to the City pursuant to this exception. See e.g., Patel, 576 U.S. at 424, 420; City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); and United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976).

The Court did affirm summary judgment in favor of the parking enforcement officer who chalked Taylor’s tires on qualified immunity grounds, observing that the alleged unconstitutionality of suspicionless tire chalking was not clearly established, and it was not apparent that every reasonable parking officer would have understood chalking to be an illegal search.

Caitlin McQueen Tubbesing
Freeman Mathis & Gary LLP
Lexington, Kentucky

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Eighth Circuit

Perry v. Adams, 993 F.3d 584 (8th Cir. 2021)

A prisoner committed suicide within a holding cell while switching jails. Her family sued to hold a transferring officer liable for the failure to communicate the suicide risk to the new prison. A mental health professional had determined the detainee was non-suicidal. The Court found the question was one asserting a violation of the Fourth, Eighth, and Fourteenth Amendments. The Court found there was no specific constitutional requirement to force an officer to second guess a mental health professional’s judgment as to the substantiality of suicide risk, so the officer had qualified immunity.

T.S.H. v. Green, 996 F.3d 915 (8th Cir. 2021)

High school students brought an action against a police officer, alleging violations of the Fourth Amendment. Two officers searched some high school students while they were on a college campus for potential misconduct. The students were kept in an office by their coach at the direction of the officers, which the students alleged went against their constitutional rights. The Court found the officer had qualified immunity from this suit, as the seizure was deemed reasonable under the circumstances.

Turtle Island Foods, SPC v. Thompson, 992 F.3d 694 (8th Cir. 2021)

Turtle Island Foods brought an action under 42 U.S.C. § 1983 to challenge the constitutionality of Missouri Statutes which criminalized misrepresenting a product as meat that was not harvested from livestock. The Plaintiff moved for a preliminary injunction in fear of the statutes violating the Plaintiff’s First Amendment Rights. The district court found the Plaintiffs did not show enough of a likelihood of success to grant the preliminary injunction, and the Court of Appeals affirmed the denial of a preliminary injunction.

Masters v. City of Independence, Missouri, 998 F.3d 827 (8th Cir. 2021)

An arrestee brought an action under § 1983 alleging a police officer used excessive force during a traffic stop. The Plaintiff was a 17-year-old high school student who was pulled over by an officer, who forcefully pulled him out of his car and refused to say why Plaintiff was being arrested. The officer did not ask for any registration information or identifying information and tasered the Plaintiff for at least twenty seconds (four cycles of the Taser), during which the Plaintiff fell unconscious. The officer removed the Plaintiff after cuffing him to the side of the road and dropped him face down on the concrete, breaking four teeth, causing abrasions on his forehead, and a laceration on his chin. The Plaintiff fell into cardiac arrest as a result of the extensive tasering. Although medical professionals were able to resuscitate him, he suffered brain injuries as a result of the incident. A jury found for Plaintiff, awarding him $6.55 million in damages. The Court of Appeals found there was no qualified immunity and upheld all portions of the jury award.

Rebecca L. Mann
Gunderson Palmer Nelson Ashmore LLP
Rapid City, South Dakota

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Ninth Circuit

Gordon v. County of Orange, (6 F.4th 961, 9th Cir. 2021)

The Ninth Circuit split on qualified immunity arising out of a Fourteenth Amendment inadequate medical care claim, affirming immunity for the involved sheriff’s deputy, and reversing it for the jail nurse. In upholding dismissal of the claim against the deputy, the Court found that the due process right to an adequate safety check for pretrial detainees was not clearly established at the time of the incident. The Court also said that, going forward, pre-trial detainees have a right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment. But the panel denied qualified immunity to the nurse because, at the time of the incident, it was clearly established pretrial detainees have the right to a properly conducted medical screen, to ensure the initiation of medically appropriate protocol.

Lemos v. County of Sonoma, (978 F.3d 1088, 9th Cir. 2021)

The Ninth Circuit upheld summary judgment granted on Heck grounds, finding that the plaintiff’s conviction for resisting, delaying, or obstructing an officer lawfully performing his duties barred a subsequent excessive force claim. In reaching its conclusion, the majority noted that the relevant penal code requires (and the jury was instructed) that the criminal defendant resist, delay, or obstruct an officer lawfully exercising his or her duties. There was no meaningful break between the possible criminal violations and the use of force. The jury at the criminal trial found the officer did not use excessive force in the course of making the arrest.

Kevin Allen
Allen Glaessner Hazelwood Werth
San Francisco, California

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Tenth Circuit

Vette v. K-9 Deputy Sanders, 989 F.3d 1154 (10th Cir. 2021)

In a verified complaint, plaintiff Eric Tyler Vette alleged, inter alia, that Montrose County Sheriff’s Sergeant Keith Sanders subjected Vette to excessive force during the course of his arrest by committing the following acts after Vette had already been apprehended: punching Vette, hitting him in the face with a dog chain, and letting a police dog attack him. Sergeant Sanders moved to dismiss the complaint, or, in the alternative, for summary judgment, arguing he was entitled to qualified immunity. The district court converted Sanders’s motion to one for summary judgment and denied it. On appeal, the Tenth Circuit found that it lacked jurisdiction to the extent that Sanders’s arguments depend exercising jurisdiction over the abstract issues of law advanced by Sanders, the Tenth Circuit affirmed the district court’s denial of summary judgment, finding that under the totality of circumstances, Sergeant Sanders’s alleged use of force against Mr. Vette (striking him in the face and releasing a police dog to attack him after he was already apprehended) was objectively unreasonable, and that Vette’s right not to be attacked by a police dog or punched and hit in the face with a dog chain after he was already apprehended was clearly established at the time.

Huff v. Reeves, 996 F.3d 1082 (10th Cir. 2021)

Plaintiff Julie Huff went to a local bank to access her safe-deposit box; then, as the Tenth Circuit put it, “all hell broke loose.” A robber entered the bank, murdered the bank president, grabbed some money from tellers, and took Ms. Huff hostage, forcing her to drive the getaway vehicle. Police officers pursued the vehicle and were able to force it to crash. At first, the robber fired at the officers and fled in one direction while Huff fled away from him. She raised her arms and faced the officers. But they fired at her and she fell to the ground. Later, the robber came up behind her and used her body as a shield; he was killed in the shootout. Plaintiff was shot at least ten times.

Plaintiff filed suit under 42 U.S.C. § 1983 for violations of her civil rights. The Tenth Circuit affirm the grant of summary judgment on Huff’s Fourteenth Amendment claim against Reeves (the shooting officer) and her failure-to-train claim against the Sheriff. However, the Court reversed and remanded on plaintiff’s Fourth Amendment excessive force claim against Reeves. The Court held that plaintiff could not invoke Fourteenth Amendment substantive due process in the circumstances of this case and that she failed to point to any additional training of the Sheriff’s personnel that could have prevented the alleged constitutional violation. However, the Court concluded that Huff presented a genuine issue of material fact on whether Reeves shot her intentionally. Because it is clearly established in the Tenth Circuit that an officer may not employ deadly force against a person who poses no threat, Reeves was not entitled to qualified immunity.

Williams v. Hansen, 5 F.4th 1129 (10th Cir. 2021)

Williams was a Colorado prisoner who practiced a Native American religion that uses tobacco in sweat lodges. The ceremonies are possible because prison officials specified where inmates could use tobacco in religious services.

In 2018, prison officials confiscated tobacco from a prisoner and suspected that it had come from Williams’s religious group. Prison officials responded with a 30-day ban on the use of tobacco for religious services. Weeks later, prison officials imposed a lockdown and modified operations, including an indefinite suspension of Native American religious services. Despite this suspension, prison officials allowed Christian and Islamic groups to continue their religious services because outside volunteers could provide supervision.

Williams sued under 42 U.S.C. § 1983, alleging in part that prison officials violated the First Amendment. The district court found—and the Tenth Circuit affirmed—that Williams’s allegations had overcome qualified immunity. In upholding the denial of qualified immunity on the “clearly established law” prong, the Tenth Circuit noted that its review was not limited to only those prior cases that had been cited by plaintiff himself. Looking to “all relevant case law,” the Court found that it was clearly established that the indefinite denial of any religious services would violate Williams’s right to freely exercise his religious beliefs in the absence of a legitimate penological interest.

Ashaheed v. Currington, 7 F.4th 1236 (10th Cir. 2021): Ashaheed wears a beard because he is Muslim. He arrived at the Colorado Department of Corrections Denver Reception and Diagnostic Center to serve a short sentence for parole violations. The Center’s policies required inmates to shave their beards at intake but exempted those like Mr. Ashaheed who wear beards due to their religion. Mr. Ashaheed alleged that he repeatedly invoked this exemption, but Sergeant Thomas Currington, motivated by anti-Muslim animus, forced him to shave his beard.

Ashaheed sued Currington under 42 U.S.C. § 1983, alleging claims for violations of the First Amendment Free Exercise Clause and Fourteenth Amendment Equal Protection Clause. Sergeant Currington moved to dismiss both claims based on qualified immunity and failure to state a claim. The district court granted the motion and dismissed the case with prejudice. However, the Tenth Circuit reversed, finding that a jury could infer from Ashaheed’s allegations that Sergeant Currington acted because Ashaheed is Muslim. The Court also found that, when Currington ignored the Center’s religious exemption and forced Ashaheed to shave his beard, he violated clearly established First Amendment law.

Janny v. Gamez, 8 F.4th 883 (10th Cir. 2021)

Janny was released from jail on parole in early 2015. Janny’s parole officer, John Gamez, directed him to establish his residence of record at the Rescue Mission in Fort Collins, Colorado, and to abide by its “house rules.” After arriving at the Mission, Janny learned he had been enrolled in “Steps to Success,” a Christian transitional program involving mandatory prayer, bible study, and church attendance. When Janny objected, citing his atheist beliefs, he alleged both Officer Gamez and Jim Carmack, the Mission’s director, repeatedly told him he could choose between participating in the Christian programming or returning to jail. Less than a week later, Carmack expelled Janny from the Mission for skipping worship services, leading to Janny’s arrest on a parole violation and the revocation of his parole.

Janny brought a 42 U.S.C. § 1983 suit against Gamez, Carmack, and the Mission’s assistant director, Tom Konstanty, alleging violations of his First Amendment religious freedom rights under both the Establishment and Free Exercise Clauses. The district court granted summary judgment to all three defendants, finding Janny had failed to (1) adduce evidence of an Establishment Clause violation by Officer Gamez, (2) show Officer Gamez violated any clearly established right under the Free Exercise Clause, or (3) raise a triable issue regarding whether Mr. Carmack and Mr. Konstanty were state actors, as required to establish their liability under either clause. The Tenth Circuit reversed the district court’s order as to Gamez and Carmack but affirmed as to Konstanty. The Court held that, viewed in the light most favorable to Janny, the evidence created a genuine dispute of material fact regarding his claims under both the Establishment and Free Exercise Clauses. And because the basic right to be free from state-sponsored religious coercion was clearly established under both clauses at the time of the events, Gamez was not entitled to qualified immunity on either claim. The Court further held that the evidence sufficient for a jury to find Carmack was a “state actor,” as required to impose § 1983 liability on private parties. However, because no facts linked Konstanty to Officer Gamez, the evidence was legally insufficient for a jury finding that Konstanty acted under color of state law.

Osterhout v. Bd. of Cnty. Comm’rs of LeFlore Cnty., Okla., __ F.4th __, 2021 WL 3729645 (10th Cir. Aug. 24, 2021)

Kendall Morgan, a former deputy sheriff for LeFlore County, conducted a traffic stop of plaintiff Chad E. Osterhout. During the traffic stop, Morgan struck Osterhout in the face and kicked him twice in the ribs. According to Morgan, Mr. Osterhout was trying to flee; Mr. Osterhout says that he remained still with his hands raised. Osterhout sued Morgan under Section 1983 for excessive force, and sued the Board of County Commissioners of LeFlore County under the Oklahoma Governmental Tort Claims Act, claiming negligent use of excessive force. Following trial, the jury attributed liability to Mr. Morgan and the Board, awarding Mr. Osterhout $3 million in compensatory damages against both defendants and $1 million in punitive damages against Mr. Morgan. Mr. Morgan moved for a new trial or remittitur of damages. The district court remitted the compensatory damages to $2 million, but denied the motion for a new trial.

On appeal, the Board and Morgan argued that the district court abused its discretion by using a verdict form with a single total for compensatory damages. And the Board argues that 1) the district court erred in denying summary judgment because the notice had been defective (because it did not include plaintiff’s home address and telephone number), and Mr. Morgan’s alleged force would have fallen outside the scope of his employment, 2) the jury acted inconsistently by assessing punitive damages and finding that Mr. Morgan had acted within the scope of his employment, 3) the verdict against the Board conflicted with the clear weight of the evidence, and 4) the award of compensatory damages was grossly excessive. For his part, Morgan argued that 1) the district court should have granted a new trial based on opposing counsel’s misconduct, 2) the compensatory damages were grossly excessive and unsupported by the evidence, and 3) the punitive damages were grossly excessive. The Tenth Circuit affirmed the district court on all grounds.

Mark D. Standridge
Jarmie & Rogers, P.C.
Las Cruces, NM

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Eleventh Circuit

The Eleventh Circuit provided a trio of opinions in a very short window of time involving police use of deadly force, exposing deep divisions among the judges of that Court.

Bradley v. Benton, 2021 WL 3782003 (11th Cir. Aug, 26, 2021)

The Eleventh Circuit affirmed the trial court’s denial of qualified immunity to a police officer who discharged a Taser during the course of a foot pursuit. The officer had pulled over a vehicle for a suspicious temporary tag, and the driver admitted having a handgun in the car. The officer asked the passenger if he had any identification, which he did not. When the officer asked a fellow officer to run the passenger’s name, the passenger suddenly exited the vehicle and fled, running across a road and parking lot into an area behind a dollar store. As the passenger tried to climb an eight-foot high concrete wall, he was struck by the pursuing officer’s Taser, fell off the wall, and died of blunt force trauma to the head and neck. The Court detailed evidence that use of a Taser on a suspect at height presents a risk of falling, a departmental policy the officer was aware of. Eyewitnesses nearby also claimed that the officer fired the Taser only when the passenger reached the top of the wall, contrary to the officer’s claim. The Court held that the initial stop was valid and that the pursuit of the passenger was valid; however, use of the Taser while the passenger was at height violated his right to be free from deadly force. While a Taser is not ordinarily considered “deadly force,” under the circumstances presented with the passenger at height, it was so considered, with the Court analogizing it to other instances where a foot or a fist are used in a certain way. Moreover, there was no threat of serious physical harm from the passenger, there was no warning given, and the passenger was not suspected of committing a crime involving infliction of serious physical harm. The Court concluded that the use of force here was obviously unconstitutional even without a case directly on point. Thus, the claims against the officer for use of the Taser were remanded for trial.

Underwood v. City of Bessemer, 2021 WL 3923153 (11th Cir. Sept. 2, 2021)

Police responded to a citizen report that shots had been fired in a neighborhood. Upon arriving, they noticed two individuals who appeared to be arguing near a running parked car. Both men attempted to depart when police arrived, one by getting into his car after being told not to. This individual put his car in drive and coasted toward the two officers, with one officer telling him to stop. The car did not stop, passing very close to the first officer who was pressed against his police vehicle. As the car proceeded at a slow speed toward the second officer, ignoring officer commands to stop, the second officer opened fire, hitting and injuring the driver. As the officer fired, he was struck by the car, but not injured. There were disputed facts of whether the car began to accelerate before or after the shots. The Eleventh Circuit, unlike the district court, found that there were issues of fact on whether a constitutional violation had been shown, based upon various disputes of fact implicating the factors found in Tennessee v. Garner, 471 U.S. 1 (1985). However, the 11th Circuit affirmed the district court’s grant of summary judgment, holding that the right was not clearly established as of the date of the incident. The Court found that the officers’ actions were “not so obviously excessive, but rather within ‘the hazy border between excessive and acceptable force.’”

Tillis v. Brown, 2021 WL 4059492 (11th Cir. Sept. 7, 2021)

This appeal concerned police actions following a high speed chase across state lines at speeds over 100 miles per hour, and whether an officer reasonably used deadly force when the suspect’s vehicle suddenly went into reverse after the officer stepped out of his car to make an arrest. The officer fired 11 shots initially, changed magazines, and fired 10 more shots, striking and killing the driver and injuring the 2 passengers. All shots were fired within 13 seconds. The district court found the officer actions during pursuit and with respect to the first 11 shots to be reasonable, granting qualified immunity, but denied qualified immunity for the second round of shots, finding that no reasonable officer could have concluded that the car posed an imminent threat of serious physical injury when these shots were fired. Judging reasonableness “from the perspective ‘of a reasonable officer on the scene at the time the events unfolded,’” the Court emphasized that “police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” The Eleventh Circuit also noted that it has consistently upheld an officer’s use of deadly force where the officer reasonably believed his life was endangered by a suspect who used or threatened to use his car as a weapon. A vigorous dissent argued that the majority opinion was dangerous in concluding that an officer was “justified in shooting three unarmed teenagers who took a family member’s car on a joy ride” and that the officer was never in any danger, leading to the potential “to excuse the unconstitutional use of force by police in the future. The dissent further accused the majority of sanctioning “the use of deadly force when after a car chase an officer on foot approaches a vehicle and the driver attempts to flee, even if the officer is not in the vehicle’s path and has no probable cause to believe the driver will use the vehicle as a weapon.”

Michael D. Strasivich
Burr & Forman LLP
Mobile, Alabama

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