Week of September 28, 2021

Dismissal of narcotics charge on speedy trial grounds generally satisfies favorable termination element for malicious prosecution claim under the Second Circuit’s “indicative of innocence” standard; court reasons that failure to timely prosecute compels an inference of a lack of reasonable grounds for the prosecution, unless the civil defendant produces evidence of a non-merits based explanation for the failure to prosecute; dismissal on speedy trial grounds also constitutes a favorable termination for a fabrication of evidence claim, that claim does not impugn an ongoing prosecution nor wo

Defendants imposed jail sanction on plaintiff on probation assigned to sex offender treatment program for refusing to admit guilt of sexual misconduct for which he had been convicted while appeal was pending; court holds plaintiff had no cause of action for violation of Fifth Amendment right to remain silent because he did not make an incriminating statement, nor was one used against him in a criminal case; officials’ actions did not violate core Fifth Amendment right, but only judge-made prophylactic rule shielding individuals from government compulsion to make incriminating statements, an

Protestors sued Republic of Turkey, Turkish security force members, and civilians under First and Fourth Amendments for violent attacks by security force members and civilian supporters of Turkish president against protestors on public sidewalk; defendants’ actions were not protected by discretionary function exception and Turkey’s lack of immunity under FSIA was not a nonjusticiable political question.

Court remands state created danger claim for reconsideration of summary judgment for defendant where officer responded to tenants’ complaint that landlord had threatened to kill them and left after expressing sympathy to landlord and taking no action; recent decision in Irish v. Fowler, 979 F.3d 65 (1st Cir.

2d Cir.

Action for excessive force was barred by Heck where plaintiff had been convicted of resisting, delaying, or obstructing peace officer and under California law such conviction is valid only when officer was acting lawfully at time that offense against officer was committed and criminal jury was so instructed; court notes that Heck would not bar claim where conviction and § 1983 action are based on different actions taken during one continuous transaction.

Court of Appeals has jurisdiction to review Heck issue on interlocutory appeal of qualified immunity; plaintiff’s conviction for refusing to bring vehicle to a stop under circumstances that endanger human life did not bar excessive force claim based on officer’s shooting after plaintiff had stopped and exited his vehicle; factual disputes precluded summary judgment on shooting.

Officer used excessive force against pretrial detainee who had been involved in fight but had stopped fighting and was orderly and compliant, with hands behind his back, when officer struck him; gratuitous force violated clearly established 14th Amendment rights.

Outrageous decision by Judge William Pryor; officer did not use excessive force when at conclusion of high-speed chase, suspect crashed into bushes, officer got out of car behind and to the right of suspect’s car, suspect started backing up, officer fired 11 shots through back windshield and side windows as car passed near him, car rolled across the road and came to a stop with engine running, officer then changed magazines and fired another 10 shots at front of car; Quotes that plaintiffs can expect defendants to use: “When an officer is on foot and standing in close proximity to a suspect

Officer used excessive force when he fired at plaintiff’s car from 8 feet, although plaintiff had not obeyed orders to stop and had evaded talking to police, where car was inching forward slowly, officer had walked in front of car, officer did not give deadly force warning, and there was no critical need to prevent a known dangerous person from escaping and harming others; officer entitled to qualified immunity, however, because court finds no case on point.