EMERGING ISSUES IN LAW ENFORCEMENT LIABILITY November 15, 2011 Lori Sykes Public Safety Attorney

1. EMERGING ISSUES IN LAW ENFORCEMENT LIABILITY November 15, 2011 Lori Sykes Public Safety Attorney City of Winston-Salem, North Carolina

2. First Amendment Issues The Occupy Movement * Picketing v. encampment * Deaths and violence * Health/Sanitation * Hundreds of arrests nationwide * Growing unrest and assaults on officers

3. First Amendment Issues

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6. First Amendment Issues Facing Off with Protestors in Atlanta http://bcove.me/pf93tx3g

7. First Amendment Issues Law Enforcement Response: * “White shirts” in NYC http://www.nytimes.com/2011/10/03/nyregion/nypds-white-shirts-take- on-enforcer-role.html?_r=1&scp=1&sq=white%20shirts&st=cse * “The Madison Method” http://www.policeone.com/Crowd-Control/articles/3361291-The- Madison-Method-for-crowd-control/

8. First Amendment Issues The reality: “Doing a good job during the event isn’t good enough. In the aftermath, if there’s a vacuum of information about what happened, the vacuum will be filled by people who have an agenda. People who are upset because they weren’t allowed to disrupt the event, people who simply don’t like the police, people who want to make money off of it, lawyers who want to raise their profile – they’re all laying in wait.” Police Executive Research Forum, Managing Major Events: Best Practices From the Field, June 2011 (citing Assistant U.S. Attorney John Gallagher).

9. First Amendment Issues Similar First Amendment trends: * Flash Mobs Oberwetter v. Hilliard, 2011 U.S.App. LEXIS 9923 (D.C.Cir.) * Funeral Protests Snyder v. Phelps, USSC 2011

10. Technology Issues http://www.time.com/time/nation/article/0,8599,2008566,00.htm

11. Technology Issues GPS Tracking * U.S. v. Jones(argued November 8, 2011) * Potential implications for other high-tech surveillance methods including cell phone location tracking – a hot topic for ACLU nationwide

12. Technology Issues Cell phone searches iPhone searches http://www.theatlantic.com/technology/archive/2011/10/do-cops-need-a-warrant-to-search-your-phone/246514/

13. Public Protection Intoxicated persons Estate of Harry Kay Burgess v. Hamrick, 698 S.E.2d 697 (N.C. App. 11/4/2010) Dodd v. Jones, 623 F.3d 563 (8th Cir. 2010)

14. Public Protection

15. Public Protection Disturbed/Suicidal persons Runnels v. City of Miami, 00-2930 (S.D. Fla. 2002) v. Roberts v. Spielman, 10-13820 (11th Cir. 2011) Saenz v. City of McAllen, 09-41072 (5th Cir. 2010 unpubl) Sallenger v. City of Springfield, 08-3769 (7th Cir. 2010) Mora v. City of Gaithersburg, 06-2158 (4th Cir. 2008)

16. Police Pursuits Scott v. Harris, 550 U.S. 372 (2007) http://www.youtube.com/watch?feature=player_detailpage&v=cmx8gzx1N1k#t=178s

17. Police Pursuits Sykes v. United States,No. 09–11311 (June 9, 2011. Fleeing from the police in a car, [Justice Kennedy] wrote, “is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.” “In the real world,” Justice Thomas wrote, “everyone — police, citizens and suspects who elect to flee — knows that vehicular flight is dangerous.”

18. TASER® Use Town ends Taser use by its officers; Stallings decides devices are too risky, but neighboring Monroe chooses to let officers use them. Two Union County municipalities are going in opposite directions over the use of Tasers by police. Citing liability concerns, Stallings abandoned the weapons early this year. Monroe recently added Tasers, and police officers completed training in their use about a week ago. Stallings police have had Tasers since 2008, but the town discontinued them in January to reduce its liability risk, Chief Michael Dummett said, declining to elaborate. He was careful not to criticize Monroe or others that choose to use Tasers. "That's their decision," said Dummett, who took over as chief in December. "It's a real sticky issue for a lot of law enforcement.“ Read more: http://www.charlotteobserver.com/2011/04/11/2215107/town-ends-taser-use-by-its-police.html#ixzz1dgfUhkSw

19. TASER® Use Current problems include * mistaken use of firearm Henry v. Purnell, 08-7433 (4th Cir. 2011) Torres v. City of Madera, 09-16572 (9th Cir. 2011) Yount v. City of Sacramento, 43 Cal. 4th 885 (2008) * Recent changes in product warnings * Inconsistent court rulings on underlying criminal conduct

20. Arrest, Search and Investigation Kentucky v. King, 563 U.S. ____, (USSC 5/16/2011) Question revolved around seizure of evidence in cases of “officer-created exigency” Resolved variety of legal tests used by different federal circuit courts including: lawfulness of officers’ actions; unreasonableness of police action; foreseeability of the results of police action; and deliberateness of conduct.

21. Arrest, Search and Investigation Ruling: A warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment.

22. Police Volunteer Programs Becoming more popular due to shrinking law enforcement budgets Potential liability both for volunteer actions and for injuries/harm suffered by volunteers http://www.nytimes.com/2011/03/02/us/02volunteers.html?pagewanted=all

23. http://www.nytimes.com/2011/03/02/us/02volunteers.html?pagewanted=allhttp://www.nytimes.com/2011/03/02/us/02volunteers.html?pagewanted=all

24. QUESTIONS?