Category Archives: § 1983 / Bivens

S.D.Ohio: Pole cam observation of def with blunt was RS for stop

Zooming in on a pole cam video, officers determined that defendant had a blunt in his hand when he was getting in his car. The question is reasonable suspicion, and officers don’t have to exhaust the innocent possibilities before acting … Continue reading

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CA5: A jury will have to decide reasonableness of excessive force used against a suicidal man

A jury needs to decide whether this officer’s use of deadly force on a suicidal suspect was reasonable. it was “clearly established — and possibly even obvious — that an officer violates the Fourth Amendment if he shoots an unarmed, … Continue reading

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SCOTUS: Shooting at and hitting a person fleeing is a 4A seizure: “The required corporal seizing or touching the defendant’s body … can be as readily accomplished by a bullet as by the end of a finger.”

Shooting at and hitting plaintiff with the intent to stop her flight is an attempted seizure under the Fourth Amendment. She made it 75 miles to a hospital, was airlifted back, and was arrested. (Qualified immunity is not decided here.) … Continue reading

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GA: 4A claim had to be raised at agency hearing level to preserve for appeal

Failure to object on Fourth Amendment grounds at the agency level before the zoning board in a zoning administrative case was waiver for appeal. Forsyth County v. Mommies Props. LLC, 2021 Ga. App. LEXIS 145 (Mar. 11, 2021). “The first … Continue reading

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CA5 declines to extend Bivens to 4A claims outside the home

Court declines to extend Bivens to a search in parking lot because it thinks SCOTUS would agree. Bivens was a search of the home. Byrd v. Lamb, 2021 U.S. App. LEXIS 6844 (5th Cir. Mar. 9, 2021). “Henriquez-Perez has not … Continue reading

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CA9: Violent take down of traffic detainee not resisting could be found excessive; no QI

Qualified immunity is denied officers for excessive force in a violent take down on a passively resisting plaintiff in a traffic stop without there being any exigency justifying it. “Viewing the facts, as we must, in the light most favorable … Continue reading

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CA1: Breaking the excessive force claim into parts for analysis results in a denial of QI

The officers do not get qualified immunity in this 1983 case. “Certainly, this was not an ‘obvious case’ where the officers so blatantly violated the Fourth Amendment that recourse to factually analogous case law is unnecessary. Wesby, 138 S. Ct. … Continue reading

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S.D.N.Y.: HomeAway and AirBnb prevailing parties in their data collection suit v. NYC

HomeAway.com and AirBnb.com were prevailing parties in their Fourth Amendment claims against the City of New York for sweeping data production, and they are awarded $595,000 in attorneys fees. HomeAway.com, Inc. v. City of New York, 2021 U.S. Dist. LEXIS … Continue reading

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E.D.Tenn.: Def wasn’t removed to avoid his being asked for consent under Randolph

The record doesn’t support defendant’s claim that he was removed to avoid his ability to object to consent under Randolph. In addition, his detention was otherwise objectively reasonable. United States v. Shaw, 2021 U.S. Dist. LEXIS 35405 (E.D. Tenn. Feb. … Continue reading

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CA5: Tasering a man threatening suicide who doused himself in gasoline was subject to qualified immunity when the Taser set him on fire

Plaintiff’s decedent doused himself in gasoline and threatened to burn the house down with six people inside. He had a lighter in hand. The officers used their Tasers on him as a last resort, and that caused him to burst … Continue reading

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CA3: Failure to factually plead lack of PC or malice for a 4A malicious prosecution claim makes it fail

Karkalas v. Marks, 2021 U.S. App. LEXIS 3868 (3d Cir. Feb. 11, 2021):

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N.D.Cal.: Misdemeanor arrest in the home reasonable under 4A and common law

Defendant’s misdemeanor vandalism arrest while officers were inside his house was reasonable under the Fourth Amendment. Common law on misdemeanor arrests applies, too. United States v. Barajas, 2021 U.S. Dist. LEXIS 21651 (N.D. Cal. Feb. 4, 2021). Defendant was convicted … Continue reading

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OH1: Blood draw from unconscious driver is by consent and reasonable

“Under [Ohio statute] an unconscious driver is deemed to have consented to a blood draw,” and that doesn’t violate the Fourth Amendment. State v. Albright, 2021-Ohio-292, 2021 Ohio App. LEXIS 301 (1st Dist. Feb. 3, 2021).* 2255 petitioner’s Fourth Amendment … Continue reading

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OH8: Traffic offense overcomes pretext claim

An actual traffic offense overcomes defense claims the stop was actually a motive for searching for drugs. Defendant didn’t produce current proof of insurance, and that led to extension of the stop. The officer wasn’t just obliged to have noted … Continue reading

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CA6: With PC, car can be searched on impound lot

Officers had probable cause to search defendant’s car for a hidden gun while it was on the impound lot. The automobile exception or inventory applied, so no warrant was required. United States v. Nuyen, 2021 U.S. App. LEXIS 1608 (6th … Continue reading

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CA6: PC for ptf’s arrest and prosecution defeats malicious prosecution claim, despite his acquittal

“This is one of those cases. A witness told Detective Keith Roberts that her former boyfriend, Eugene Baker, and one of Baker’s friends whom she knew as ‘Desean’ had robbed and murdered a competing drug dealer. After this witness identified … Continue reading

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CA10: Weaknesses in the PC for Franks should be disclosed

Plaintiff failed to show a Franks violation in the affidavit for warrant. “To be sure, if the affiant for a warrant possesses information that would cast substantial doubt on the existence of probable cause, that information should not be intentionally … Continue reading

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CA1: When police justifiably shoot at a car, a passenger hit has no claim

A police officer fired at a vehicle driven by an armed man that was trying to hit him, and a passenger was hit. On the undisputed facts, the use of force was reasonable. Fagre v. Parks, 2021 U.S. App. LEXIS … Continue reading

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E.D.N.Y.: Ptf’s injunction request against future illegal searches speculative

“Even if plaintiff had correctly labeled this claim as a Fourth Amendment one, he could not show that he is entitled to a preliminary injunction. ‘Speculative, remote or future injury’ is not enough to show irreparable harm. Phelan v. Sullivan, … Continue reading

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CA6: 4A 1983 claim brought after state court reversal on search claim was untimely

Plaintiff’s 1983 unreasonable search claim is untimely. He brought the claim after his state appeal reversed his conviction on a bad search. “Dibrell’s claim is untimely under these rules. His detention ended on February 18, 2014, when he was released … Continue reading

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