 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Hart v. Miller4/19/2000
. In discussing application of qualified immunity, the Maine District Court stated,
he Supreme Court has extended qualified immunity generously, imposing a heavy burden on plaintiffs to establish liability. [citation omitted.] This policy is justified on a variety of grounds, not least of which is a fear that "personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." [citation omitted.] Id.
[ ] In the present case, Hart is seeking damages under § 1983 based upon the manner in which Miller allegedly approached her at her apartment during his investigation. According to Hart, Miller looked at her provocatively, and she inferred from Miller's actions he wanted sex from her. It is undisputed Miller did not physically touch Hart and Hart consented to Miller's entry into her apartment. Hart's allegations in her complaint involved actions committed by a police officer acting under color of state law; therefore, the first element of a § 1983 cause of action is easily satisfied. Where the conflict arises is with the second element; was Hart deprived by Miller of a constitutional right? Further, was this constitutional right clearly established so as to attack Miller's defense of qualified immunity.
[ ] The main question before this Court is whether a police officer's alleged "leering and provocative looks" and his question "what were they going to do about [the marijuana]" amounts to a violation of a "clearly established constitutional right." () Hart contends for the first time in this case that Miller's conduct violated her liberty interest in her own physical safety and right to bodily integrity. It is the well-settled rule of this Court that if a party fails to raise an issue at the trial court level, it would be inappropriate to consider this issue for the first time on appeal. See Grand State Property, Inc. v. Woods, Fuller, Shultz & Smith, 1996 SD 139, , 556 NW2d 84, 88 (citing Mayrose v. Fendrich, 347 NW2d 585 (SD 1984)). The majority, however, has disregarded this rule and considered this issue for the first time. Therefore, I will address it also.
[ ] The cases cited by the majority to support their reversal and remand of this issue are clearly distinguishable. In Antia v. Thurman, 914 FSupp 256, 257 (NDIll 1966), Antia was allegedly detained based upon her Hispanic ethnicity and was subject to numerous derogatory comments about "Puerto Rican girls." In Rogers v. City of Little Rock, Arkansas, 152 F3d 790, 794-95 (8thCir 1998), a police officer stopped a woman, followed her home, entered the residence, and raped the woman. In Haberthur v. City of Raymore, Missouri, 119 F3d 720, 721 (8thCir 1997), Haberthur was followed by Officer Untrif, who ultimately placed his hand under her sweatshirt and fondled her breast, chest and side, and also propositioned her to go back to his place. The present case does not contain such a clear-cut liberty interest violation as the previously mentioned cases. We are not presently faced with a situation where a police officer has made specific sexual comments, touched the plaintiff, or committed a sexual assault upon the plaintiff. Instead, we are faced with whether an alleged "leering look" and a vague, ambiguous comment rises to the level of deprivation of a constitutional right.
[ ] To establish that Officer Miller is liable to Hart, Hart must show that Miller's "conduct violates . . . clearly established constitutional or statutory rights." See Horne, 1997 SD 65, -7, 565 NW2d at 52-53. A review of case law from other jurisdictions reveals that various jurisdictions have found that a person has a right to bodily privacy, a right to protection against unreas
Page 1 2 3 4 5 6 7 8 9 10 11 12 South Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|