The Fifth Amendment provides that no person shall be compelled to give testimony against him or herself. This right against self-incrimination is not absolute. The government has the power to compel a person’s testimony even when that testimony is incriminating. The government must however provide the person so testifying with protection that is similar to the Fifth Amendment privilege. The mechanism ...

In Walker v. City of New York, the United States Court of Appeals for the 2nd Circuit gave law enforcement some direction for determining what training officers must be provided with to do their jobs professionally and with lower liability exposure. Essentially the case indicated that if you know to a moral certainty that officers will confront a certain situation; and ...

In Devenpeck v. Alford, 543 U.S.___, 2004 U.S. LEXIS 8272 (2004), the United States Supreme Court examined a case where officers, with probable cause to arrest a subject, Jerome Alford for impersonating a police officer, instead arrested him for tape recording the officers during the investigatory stop. A previous court decision held that it was not illegal to tape police officers ...

A difficult issue in the school setting is use of force to control students and maintain a safe environment. This issue is more difficult when dealing with students who have disabilities that place them in special education. A recent case from Mississippi provides an example of how courts will analyze such uses of force under state law. In Pigford v. Jackson ...

Detention w/o Notification OK In the first case, Wofford v. Evans, 390 F.3d 318, (4th Circuit 2004), school officials twice detained a 10-year old after her classmates told their teacher that the girl, M.D., had brought a gun to school. Students at Colonial Elementary School in Botetourt County, Va., reported to their teacher that they had seen M.D. in possession of ...

Anticipatory Search Warrant Valid Though Triggering Event Not Included in Warrant. The United States Supreme Court held that an anticipatory search warrant, that described the triggering event for execution in the affidavit, but not the warrant or the attached schedules that were given to the suspect at the residence, still met the particularity requirement of the 4th Amendment. United States v. ...

Legal and Liability Risk Management Institute Public Agency Training Council Generally law enforcement agencies have operated their IA/OPS system with little oversight. That's coming to an end. More communities, particularly those in large urban areas, are instituting some form of external review. In some communities it's a form of civilian review. Since 1997, numerous police agencies have come under the scrutiny ...

Over the past couple of years courts have seen a renewed number of claims based upon allegations related to violations of the 5th Amendment self-incrimination clause as well as violations of the rule announced in Miranda v. Arizona, 384 U.S. 436 (1966). Two cases decided on June 28th 2004 provide some guidance for law enforcement agencies with respect to the reaches ...

In establishing reasonable suspicion to conduct the search of a student, school officials and police officers assigned to schools should provide complete details of the facts which justified their decision to search. A case from the State of Washington provides a good example of the detail which will support such a search. State of Washington v. Huff, 2004 Wash. App. LEXIS ...

Brant v. Volkert, 72 Fed. Appx. 463 (7th Cir. 2003). Officers are often faced with circumstances involving persons with physical disabilities. As such it is necessary to train officers for such circumstances. Mr. Brant, a paraplegic was stopped by the police while operating a three-wheeled scooter erratically and with no lights. A computer check revealed that Brant’s right to operate the ...

In Rajaee El-Amin v. Commonwealth of Virginia, 2005 Va. LEXIS 17 (2005), the Supreme Court of Virginia considered the authority of a police officer to conduct a pat-down of a subject based upon their association with a subject found to be in possession of a firearm. While the court declined to adopt an "automatic companion" rule, the court found that the ...

Any time a law enforcement officer uses deadly force, the likelihood that a lawsuit will follow is almost a certainty. Most of these lawsuits are brought in the federal courts as civil rights claims based upon the Fourth Amendment to the United States Constitution. These actions are brought under a federal statute, 42 U.S.C. § 1983 which creates civil liability when ...

Demers v. Leominster School Dept., 263 F.Supp. 2d 195 (Dist. MA 2003). Michael Demers and his parents filed a federal lawsuit against school officials after he was suspended from school following his refusal to undergo a psychiatric exam. The suit alleged among other things, a violation of Michael’s due process rights. School officials sought to have Michael psychiatrically examined after he ...

An individual officer’s greatest shield in a lawsuit that alleges a violation of civil rights is qualified immunity. A decision by the United States Supreme Court in December, further clarified the strength of this immunity. In Brosseau v.Haugen, 543 U.S.___; 2004 U.S. LEXIS 8275 (2004), the United States Supreme Court examined a case involving the use of deadly force by Officer ...

Stephen Prescott believes that parents may think twice about attending their children’s school events if the law prevents them from successfully suing the school corporation after being injured on school property. The Connecticut Supreme Court recently heard and rejected Prescott’s argument, finding that schools owed students’ parents no special duty of care. Prescott was injured after his son’s Thanksgiving 1998 football ...

In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court authorized police officers to stop and detain individuals where the officer had reasonable suspicion (some facts and circumstance but less than probable cause) to believe that the person to be stopped was involved in criminal activity. Officers were authorized to use force, short of deadly force to accomplish ...

Golphin v. Florida, No. SC03-554 (December 14, 2006) The Supreme Court of Florida recently decided an important case regarding consensual encounters. In Golphin v. Florida , two police officers were on patrol in an area of Daytona Beach that is known for prostitution and narcotics traffic. The police officers were specifically in that area to conduct field interviews with individuals in ...

Police officers sometimes subjectively perceive suspect action as a threat and react in accord with that threat. In many of these cases, the so-called “furtive” motion turns out to be simple movement and not a threat at all. Sample v. Bailey, 337 F.Supp.2d 1012 (N.Dist. Ohio 2004) provides a good example of how courts view these cases when deciding whether an ...

A former parochial school student who was sexually abused by a teacher cannot proceed with a lawsuit because a Nebraska state statute prevents the filing of claims after a specific time period. The Eighth Circuit Court of Appeals recently ruled that, although there was enough evidence to find that T. Mark Kraft was sexually abused by teacher Arlen Meyer in the ...

Hermann v. City of Louisville, 114 Fed. Appx. 162 (6th Cir. 2004) involved the death of Louis Hermann following his escape from police while handcuffed. Louis was arrested after being disruptive at a free outdoor concert in Louisville’s City Park, which is adjacent to the Ohio River. Louis had been acting up at the concert and was asked by an officer ...