Category Archives: § 1983 / Bivens

D.Utah: Defendant in prior dismissed federal action by state consumer protection agency refiled in state court won’t prevent state from using evidence obtained for that action

The state sued in federal court for relief, and it got a TRO, but the claim was later dismissed. Copies of records were made and originals returned. After the state sued in state court, the defendants sought application of the … Continue reading

Posted in § 1983 / Bivens, Abstention, Qualified immunity | Comments Off on D.Utah: Defendant in prior dismissed federal action by state consumer protection agency refiled in state court won’t prevent state from using evidence obtained for that action

CA7: Handcuffing winded obese man behind his back led to death because of unknown heart condition; not excessive force

Plaintiff’s decedent was in a foot chase with officers after a shoplifting incident. He was winded, obese, and, unknown to officers, had a heart condition. He was handcuffed behind his back and died from lack of oxygen in his blood. … Continue reading

Posted in § 1983 / Bivens, Excessive force, Qualified immunity | Comments Off on CA7: Handcuffing winded obese man behind his back led to death because of unknown heart condition; not excessive force

D.Utah: Unlatching but not opening car door to look inside then shutting it was attenuated from dog sniff that gave PC

Officers unlatched the door of a suspicious car parked on an cul-de-sac away from houses, and the car was suspected of a theft from a Sam’s store. The door was shut without looking inside and then a drug dog was … Continue reading

Posted in § 1983 / Bivens, Attenuation, Automobile exception, Dog sniff | Comments Off on D.Utah: Unlatching but not opening car door to look inside then shutting it was attenuated from dog sniff that gave PC

CA6: Without RS, two officers get no QI, but another acting at their request does

Three officers were involved in defendant’s stop. Two were involved in the decision to stop, but, based on the factual dispute in the record, they do not get qualified immunity on the decision to make the stop. The third officer, … Continue reading

Posted in § 1983 / Bivens, Collective knowledge, Dog sniff | Comments Off on CA6: Without RS, two officers get no QI, but another acting at their request does

CA11: No Heck bar for § 1983 false arrest claim over dismissed criminal count

The district court erred in dismissing plaintiff’s § 1983 false arrest claim against the deputy on Heck grounds because Heck did not apply–the charge that formed the basis for his § 1983 claim was dismissed, and his § 1983 suit … Continue reading

Posted in § 1983 / Bivens, Abstention | Comments Off on CA11: No Heck bar for § 1983 false arrest claim over dismissed criminal count

D.Md.: Conviction at trial despite reversal on appeal forecloses § 1983 false arrest case

Plaintiff was charged with OVI and was convicted at trial. On appeal to the next level he was found not guilty of that but convicted of evading an interlock device. He sued over the OVI arrest, and it is dismissed … Continue reading

Posted in § 1983 / Bivens, Abstention, Qualified immunity | Comments Off on D.Md.: Conviction at trial despite reversal on appeal forecloses § 1983 false arrest case

MS: Def was in open fields when he encountered wildlife officers and admitted he had meth on him

On the opening day of dove hunting season, wildlife officers were out. They heard shooting from open lands and went to investigate. They encountered defendant and another, and defendant tossed a bag aside when officers approached him. They asked what … Continue reading

Posted in § 1983 / Bivens, Open fields, Seizure | Comments Off on MS: Def was in open fields when he encountered wildlife officers and admitted he had meth on him

OH10: DV victim who shared house had apparent authority to consent to search for weapon

Police were called to a domestic disturbance, and the victim in the house had the apparent authority to consent to search of a Home Depot bucket in their house where a gun was found. State v. Henize, 2019-Ohio-5202, 2019 Ohio … Continue reading

Posted in § 1983 / Bivens, Apparent authority, Excessive force | Comments Off on OH10: DV victim who shared house had apparent authority to consent to search for weapon

CA8: SW for MJ in urine wasn’t stale by eight day wait to execute

The search warrant for defendant’s urine sample to prove he had marijuana in his system wasn’t stale after eight days. Staleness is determined by whether the probable cause for the warrant dissipates before execution. There was testimony in the record … Continue reading

Posted in § 1983 / Bivens, Standards of review | Comments Off on CA8: SW for MJ in urine wasn’t stale by eight day wait to execute

CA11: The lack of even arguable PC for ptf’s arrest denies the officer QI

This is a Fourth Amendment malicious prosecution claim. “The district court, upon a close analysis of the elements of the crimes alleged, determined that the facts proffered by Detective Brashears are insufficient to establish probable cause, or even arguable probable … Continue reading

Posted in § 1983 / Bivens, Probable cause, Qualified immunity, Reasonable suspicion | Comments Off on CA11: The lack of even arguable PC for ptf’s arrest denies the officer QI

OR: Officer had subjective PC, but it wasn’t objectively reasonable on totality; suspicious, yes, PC, no

The officer subjectively had probable cause to believe defendant was in possession of drugs, but it was not objectively reasonable on the totality. “Applying those standards here, we conclude that, even when viewed through the lens of Haugen’s training and … Continue reading

Posted in § 1983 / Bivens, Probable cause | Comments Off on OR: Officer had subjective PC, but it wasn’t objectively reasonable on totality; suspicious, yes, PC, no

CA1: Ptf shows apparent Franks violation to survive SJ in § 1983 case

Defendants’ grant of summary judgment in a § 1983 case is reversed for a Franks violation in a theft case where plaintiff had a power of attorney over the property and the officer knew it and failed to disclose it … Continue reading

Posted in § 1983 / Bivens, Franks doctrine | Comments Off on CA1: Ptf shows apparent Franks violation to survive SJ in § 1983 case