Highlights of This Issue

United States Supreme Court Action

Supreme Court Approves Summary Arrests for Minor Offenses.

The plaintiff was stopped by a Texas police officer for failure to have her children seat belted in her vehicle. Police officers in Texas, as in other states, ordinarily issue tickets after stopping motorists for traffic violations.

Rather than doing this, the officer placed plaintiff under full custodial arrest. He allegedly handcuffed her, placed her in his squad car and took her to the police station. At the police station, she was required to remove her shoes, jewelry, and glasses and empty her pockets. Plaintiff's "mug shot" was taken, and she was placed in a jail cell for approximately one hour until being taken before a magistrate. Ultimately she pled no contest to the seat belt violation and paid the maximum penalty for this violation--a fifty dollar fine. Additional charges of driving without a license and proof of insurance were dismissed.

Plaintiff then filed suit in state court under the civil rights act, 42 U.S.C. § 1983 against the city, the police officer, and the chief of police, for damages arising from her incarceration. The city removed the suit to a federal district court which granted summary judgment for the city.

The United States Court of Appeals for the Fifth Circuit, three judge panel, reversed the summary judgment with respect to the Fourth Amendment claim, holding that plaintiff had established that the full custodial arrest for not wearing a seat belt violated a clearly-established Fourth Amendment right.

The Fifth Circuit then granted a rehearing en banc (full court) and vacated the panel's decision. A majority affirmed the district court's judgment, holding that the custodial arrest did not violate plaintiff's Fourth Amendment rights because the officer had probable cause and the arrest was not conducted in an unreasonable manner. 195 F.3d 242 (5th Cir. 1999).

The United States Supreme Court granted certiorari on the question: Does the Fourth Amendment limit use of custodial arrests for fine-only traffic offenses?

In a 5-4 decision and an opinion written by Justice Souter, the Supreme Court affirmed the en banc court below. It held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. The Court noted that some states have passed laws to limit police authority to make full custodial arrests for minor offenses, and said this trend as well as the "good sense" and "political accountability of local officials" would be adequate to take care of abuses of arrest powers, but soundly rejected an historical argument raised by the plaintiff that the framers of the Fourth Amendment would have regarded such arrests as constitutionally unreasonable. It rejected plaintiff's request to "mint a new rule of constitutional law" forbidding custodial arrests, even upon probable cause, when conviction could not ultimately carry any jail time and the government could show no compelling need for immediate detention.

The Court ruled that plaintiff's arrest satisfied constitutional requirements. It was undisputed that the arresting officer had probable cause to believe that plaintiff had committed a crime in his presence. Because she admitted that neither she nor her children were wearing seat belts, the officer was authorized (though not required) to make a custodial arrest without balancing the costs and benefits or determining whether plaintiff's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, or unusually harmful to her privacy or physical interests, according to the Court. It said that whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed and concluded that plaintiff's arrest and subsequent booking, though undoubtedly humiliating, were no more harmful to her interests than a normal custodial arrest.

Justices O'Connor, Stevens, Ginsburg and Breyer dissented in an opinion written by Justice O'Connor. In her dissenting opinion Justice O'Connor said that "unbounded discretion" for the police in making summary arrests for minor offenses "carried with it grave potential for abuse" and warned that "as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may serve as an excuse for stopping and harassing an individual," even though both the plaintiff and the officer in this case were white.

Arrest, Search and Seizure

Search: What Constitutes; Random Computer Checks of License Plates

State. This court took the position that there is nothing wrong with the police running random computer checks of passing vehicle licenses, without suspicion of criminal conduct, in light of the fact that such a check is not a "search" subject to the protections of the Fourth Amendment.

" . . . Such a check is not a search subject to the protections of the Fourth Amendment to the United States Constitution. See State v. Bjerke, 697 A.2d 1069, 1073 (R.I.1997) (holding that a defendant had no reasonable expectation of privacy in a motor vehicle license plate). Nor does it constitute a search withing the meaning of Part I, Article 19 of the New Hampshire Constitution. 'In considering what constitutes a search for purposes of our Constitution, we have stated that a search ordinarily implies a quest by an officer of the law, a prying into hidden places for that which is concealed.' State v. Summers, 142 N.H. 429, 432, 702 A.2d 819, 821 (1997) (quotation and brackets omitted). In no way can the visual inspection of a license plate mounted in public view on the front or rear of a vehicle be considered 'prying into hidden places for that which is concealed.' Nor can the officer's subsequent check of associated motor vehicle licenses and records, when 'the state is the very body that issues, controls and regulates' such licenses and records. Bjerke, 697 A.2d at 1073. . . . "

Civil Liability: False Arrest; Disorderly Conduct; Good Faith Immunity

State. A reasonable police officer could not conclude that he had probable cause to arrest for disorderly conduct under state law the proprietor of a judgment debtor, who was protesting a civil execution on his property by walking around the premises and trying to persuade persons executing the writ not to take exempt property. Therefore a claim of qualified immunity from civil liability under 42 U.S.C § 1983 arising from the arrest was not available to the arresting officer.

The court concluded that the proprietor's activities did not constitute intentional or reckless conduct causing alarm to any member of the public, as required under the state disorderly conduct statute. This decision was based on a motion by the defendant to dismiss the complaint; the defense might still be available depending on the facts that would come out at trial.

Federal. A family failed to state a claim for deliberate indifference after a suspect died in custody after being sprayed with pepper spray (OC). The officers had responded to a suspect acting erratically, and decided to take him into custody for an involuntary mental commitment. The suspect was sprayed during the struggle and handcuffed and transported to the hospital. While laying prone and handcuffed, a nurse noticed he was not breathing. The parents sued the officers, alleging that they were deliberately indifferent to the needs of the suspect. The court stated:

"The original complaint alleges only that Young was behaving strangely and that the autopsy revealed that Young had PCP in his system when he died; there is no allegation that the officers knew or even suspected Young was under the influence of PCP. Thus, to the extent the Parents' claims are premised upon the use of pepper spray on a person under the influence of PCP, the original complaint does not allege the existence of a serious risk of harm that was faced by Young, much less a risk known to and disregarded by the law enforcement officers. And given Young's erratic behavior and his acknowledged struggle with the law enforcement officers, the mere use of pepper spray in this case cannot be considered a Fourteenth Amendment violation."

Federal. A hog tie on a suspect with diminished capacity was considered excessive force in a civil rights action under 42 U.S.C. § 1983. The deceased was naked in an apartment hallway and hallucinating.

The officers were entitled to qualified immunity because use of hog ties and positional asphyxia was not clearly established at the time of the incident in June 1996. However, the court denied summary judgment for the city because there remained a genuine issue of material fact regarding whether the city trained officers properly in the use of hobble restraints and because the police staff were aware of positional asphyxia research and literature.

"We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint."

Federal. The at-home, off-duty dog-care efforts of police canine handlers were ruled to be a necessary and integral part of their principal activities as law enforcement officers, and thus were considered to be compensable "work" for purposes of the Fair Labor Standards Act (FLSA). The city required officers to take the canines home with them, look after them at all times, keep them well-nourished and in good health, and have them ready for recall to active service at a moment's notice.

The court also ruled that a reasonable agreement existed between the city and the police canine handlers as to the amount of compensable time the officers needed for at-home, off-duty dog care, and thus the officers were not entitled under the FLSA to compensation for off-duty time in excess of 17 minutes per day as specified by a collective bargaining agreement. There was no evidence that the city knew that 17 minutes per day of compensatory time far under-approximated the actual amount of FLSA "work" performed, or that the non-monetary support that the city provided to the canine handlers in the form of a take-home cruiser, taxpayer-provided dog food, veterinary care, kennel, travel to competition, and on-duty training days, failed to compensate them reasonably for any deficiency the collective bargaining agreement may have left.

Federal. A city employee's addiction to cocaine did not render his possession of cocaine truly involuntary, and thus his dismissal for violating a city personnel rule prohibiting possession of controlled substances did not constitute disability discrimination in violation of the Americans with Disabilities Act (ADA). The court said that although the ADA might protect an employee from an adverse employment action taken because of his alcoholism or drug addiction, it would not bar discipline for employee misconduct.

" . . . A contrary rule would 'require an employer to accept egregious behavior by an alcoholic [or drug addict] employee when that same behavior, exhibited by a nondisabled employee, would require termination.' Williams [v. Widnall, 79 F.3d 1003 (10th Cir. 1996)], 79 F.3d at 1007."