Category Archives: § 1983 / Bivens

TX4: Illegal stop claim was waived for failure to present to trial court

Defendant’s illegal stop claim for having an open container in San Antonio wasn’t presented in the trial court so it’s waived. Sowers v. State, 2020 Tex. App. LEXIS 7473 (Tex. App. – San Antonio Sept. 16, 2020).* “This Fourth Amendment … Continue reading

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CA10: Ptf didn’t have to show officer his ID and that wasn’t PC for arrest

“Mglej’s refusal to provide Deputy Gardner with his driver’s license or some other form of identification, then, as Deputy Gardner demanded, did not create probable cause to arrest Mglej under Utah Code § 76-8-301.5(1). Thus, sufficient to defeat summary judgment, … Continue reading

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CA3: State court suppression of search isn’t favorable termination for malicious prosecution case

Just because the evidence was suppressed in plaintiff’s criminal case and then affirmed on appeal doesn’t mean the criminal case was terminated in his favor on the facts. He possessed heroin, and that’s not in dispute, and there was probable … Continue reading

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CA7: Civil claim for false arrest or detention on fabricated evidence is 4A claim

“A claim for false arrest or pretrial detention based on fabricated evidence sounds in the Fourth Amendment right to be free from seizure without probable cause.” Patrick v. City of Chicago, 2020 U.S. App. LEXIS 28380 (7th Cir. Sept. 8, … Continue reading

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CA5: Bivens not extended to excessive force claim on entering VA hospital

Bivens won’t be extended to an alleged unprovoked attack at a VA hospital metal detector. Oliva v. Nivar, 2020 U.S. App. LEXIS 28052 (5th Cir. Sept. 2, 2020). “The issue before the Court is whether the Government violated Rule 16 … Continue reading

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CA11: Telling ptf to move along wasn’t a 4A seizure

“Here, Watkins did not state a plausible claim that Willson violated his Fourth Amendment rights because Willson did not arrest him, detain him, or restrain his movement. Instead, Willson gave Watkins notice to leave the premises, as required by Florida … Continue reading

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S.D.Fla.: Deputy sheriff stated false imprisonment claim against ATF officers

Plaintiff, a Monroe County deputy sheriff, stated a claim so far for false imprisonment against ATF agents who stopped him for no reason while he was working Hurricane Irma in the Florida Keys. His excessive force claim, however, is dismissed. … Continue reading

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CA9: Hernandez bars Bivens claim against false arrest in Thailand U.S. allegedly participated in

“As in Hernandez, ‘it is glaringly obvious that [Hobbs’s] claims involve a new context.’ Id. at 744. And the same extraterritorial concerns that foreclosed a Bivens claim in Hernandez apply here with greater force. Unlike in Hernandez, all of the … Continue reading

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IN: CI’s statement he bought from def ten times was a statement against penal interest

The CI was the target of a search, and he snitched off defendant as his source for about ten sales, the most recent the day before. That was a statement against penal interest. State v. Stone, 2020 Ind. App. LEXIS … Continue reading

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CA8: TSA’s officers “satisfy the FTCA’s definition of an investigative or law enforcement officer” for FTCA

“The central question here is whether Transportation Security Administration (TSA) screening personnel, known as Transportation Security Officers (TSOs), satisfy the FTCA’s definition of an investigative or law enforcement officer. Holding that they do, we reverse and remand.” “Two of our … Continue reading

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CA6: Pleading false information used to get SW overcame QI at this stage

Pleading that defendants used false information to get a search warrant for them. That was enough to get around qualified immunity, and the district court erred in dismissing at this stage. Marvaso v. Sanchez, 2020 U.S. App. LEXIS 26723 (6th … Continue reading

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CA6: Seizure under a SW is not a 5A taking

The consensus of several other circuits is that seizing property under a search warrant is not subject to the Fifth Amendment’s takings clause. See, e.g., Lech v. Jackson, 791 Fed. Appx. 711, 717 (10th Cir. 2019), cert. denied, No. 19-1123, … Continue reading

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CA7: Violation of police dept regulations can’t reasonably be a § 1983 claim or 4A violation

Violation of department violations can’t reasonably be a § 1983 claim or violation of the Fourth Amendment. Estate of Biegert v. Molitor, 2020 U.S. App. LEXIS 24211 (7th Cir. July 31, 2020):

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CA9: Nevada JP’s PC determination never finalized has no preclusive effect in § 1983 case

A preliminary determination of probable cause by a justice of the peace that is not appealed is not entitled to preclusive effect under state law. Therefore, plaintiff states a claim for relief for his alleged false arrest despite that. Scafidi … Continue reading

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CA9: 4A issues in “travel ban” case: expungement of records unconstitutionally obtained is a remedy

“Addressing plaintiffs’ Fourth Amendment search claims, the panel first held that the expungement relief sought by plaintiffs — the expungement of all records unconstitutionally obtained and maintained — was available under the Constitution to remedy the alleged constitutional violations. Because … Continue reading

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CA8: Mistake of name in SW affidavit deleted by district court wasn’t material

The affidavit for search warrant here originally used the name “Aaren” but the officer found “Taylor” could be the last name, and the affidavit was changed for that. It turned out that there were two people. The district court properly … Continue reading

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