Police Misconduct Litigation Under Section 1983

The Plaintiff’s Perspective

 Presented by:

Craig T. Jones

EDMOND & JONES, LLP

The Candler Building, Suite 410

127 Peachtree Street, NE

Atlanta, GA 30303

February 2004

A. INTRODUCTION

This paper is meant to provide a brief overview of some of the issues which I have found to be of current interest in my practice of representing victims of police misconduct. Since I am a plaintiff’s lawyer, my perspective will inevitably be skewed toward those issues which primarily affect plaintiffs, but most of you either represent plaintiffs or defend cases brought by them, this will hopefully be a beneficial exercise to both sides despite my obvious bias. Please note that I have made no attempt to be impartial, but any time I have made citations to the law, I have tried to report it as accurately as possible.

I am not a scholar, and this is not intended to be an exhaustive treatment of any of these subjects. I have neither the expertise nor the time to give anything more than a superficial analysis of the subjects discussed in this paper. I am sure there are other subjects which should have been included, but the scope of this paper is limited to my professional experience. Please use this as a starting point for your own research rather than a definitive statement of the law, which is constantly in flux anyway–particularly here in the Eleventh Circuit.

B. CASE THEMES AND JURY ARGUMENTS

An important theme to stress in police misconduct cases (if you are representing the plaintiff) is that all citizens deserve to be treated fairly by the police, and it is not up to the police to decide who are the good guys and who are the bad guys. A shooting or beating which amounts to summary punishment is not what America stands for–in fact, our veterans have defended this country against regimes where that sort of thing was all too common. We don’t want that crap here in America.

The rule of law is what holds this society together, and if those who enforce the law cannot be counted on to obey it, then there is less respect for the law as well as the police. Another way of saying it is that if the police do not obey the law, how can they expect us to do so? If the public does not trust the police, then they are more apt to overreact when encountered by the police, which means that more people will die–including officers and people who may have no criminal intent other than defending themselves against what they perceive as aggression.

In fact, some of the most compelling cases involve citizens who initially resisted police because there was some confusion about the officer’s identity, and then the officer escalates the situation by responding with force that is greater than necessary. In fact, one of the so calledGarner factors is that the officer should give a verbal warning before using deadly force whenever it is practical to do so. Tennessee v. Garner, 105 S. Ct. 1964, 471 U.S. 1 (1985) For instance, I once won a substantial verdict for a man in a rural area who fired warning shots into the air to scare off what he thought was a trespasser on his property but was actually an undercover police officer conducting surveillance on a neighbor; the officer returned fire and eventually shot my client (after he had put down his squirrel rifle), but according to witnesses, never identified himself as a police officer. The theme of that case? No, I did not tell the jury that this was a case about an officer’s duty to use no more force than was necessary. Rather, I told them that this was a case about “the right to bear arms.” The lesson of that case is that you should adapt the theme to the facts of the case and the demographics of your jury.

A similar theme, “the right to defend one’s home and family”, can be invoked in cases of home invasions by police officers carrying out no-knock searches–which often involve shooting first and announcing themselves later. In such cases, a theme such as “your home is your castle” is sure to resonate with jurors–particularly in cases where the police have raided the wrong house or the plaintiff is an innocent spouse or guest of the suspect.

If your client is intoxicated or mentally impaired, use that to your advantage. Try to show that the officer knew he was drunk or disturbed and should have approached him differently. If the plaintiff was acting crazy, why did the officer get in his face? Did the police consult the mental health authorities for assistance in dealing with a barricaded person, or did they provoke an unnecessary confrontation with a crazy person by rushing in blindly? When a team of armed officers points their guns at a crazed but unarmed schizophrenic, it does not take a crystal ball to figure out what can go wrong. I cannot reiterate the importance of expert testimony in such cases; often, you will find that the prevailing practices of the law enforcement profession are actually more demanding than what the law minimally requires–all of which factor into the reasonableness of the defendant’s actions.

In my “right to bear arms” case, the plaintiff was .36, barefoot, and walking on gravel. When the defense brought in crime lab technicians to tell us how drunk that was, we got them to concede that someone that drunk would have difficulty standing and was probably incapable of running one hundred feet and lunging at the officer without falling flat on his face.

I once had a SWAT team shooting case (which was lost on summary judgment) in which my client, a mentally disturbed former school teacher, had barricaded herself inside a house with a butcher knife. Then, knowing that she had a knife, and knowing that she was not a threat to anyone as long as she was locked in the house and everyone else stayed outside, the SWAT team stormed the house and cornered her. As soon as one of the officers came within arms length of the plaintiff’s knife, he shot her and made her a paraplegic. The defense expert claimed to have done extensive studies proving that a knife-wielding attacker can move twenty-two (22) feet before an officer can draw his or her weapon and stop the attacker with a bullet. Many of the officers I have deposed are familiar with this study, using it to claim that they are justified in shooting anybody with a knife who is standing up to twenty-two (22) feet away. On cross examination in that case, I asked the defendant–who was himself familiar with the twenty-two (22) foot rule–why on earth he had willingly placed himself within twenty-two (22) feet of the knife? The court was not impressed, but I thought it was a creative case of using your opponents’ case against them.

Most experts in the field agree that good training in the use of force saves police officer’s lives. Bad training costs lives. A well-trained officer is not more likely to hesitate before using force in self-defense; rather, he or she is able to size up the situation more quickly and to make the right decision. These are points that you will want to bring out through your expert, in your cross-examination of the defendant and police department officials, and in your argument to the jury. While experts are often important in use-of-force cases, do not neglect the wealth of information that can be obtained from the Defendants. Be sure to depose the training officer for the defendant’s department, and do not hesitate to subpoena the course materials used at the academy at the time the defendant was trained. (This is usually a long shot, but sometimes the materials still exist if the training did not occur too long ago.) Sometimes, the use of force policy adopted by the defendant’s department contains a more definition of what constitutes excessive force than is found in the law, and sometimes (particularly in low-budget cases) a blow-up of the policy will accomplish as much as an expert in determining whether the force used was excessive. However, if you are trying to show that the policy is deficient in order to impute liability to the municipality–or to prove that there is a difference between the alleged written policy and the actual policy in practice–then you will definitely need an expert.

C. THE FIRST STEP: OVERCOMING QUALIFIED IMMUNITY

Assuming that the facts make out a constitutional violation, on the plaintiff’s side, the first step toward recovery is to overcome the defense of qualified immunity which will be asserted by the individual defendant. Qualified immunity is a judge-made doctrine that balances the need to vindicate constitutional deprivations, which in many instances can only occur through substantial monetary awards, against the need to insulate officials from fear of personal liability [i] and the burdens of litigation when performing their duties in areas where the law does not provide clear guidance. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 635, 638 (1987).

Under the doctrine of qualified immunity, even a government official who has willfully and capriciously violated civil rights will escape liability for monetary damages unless the official’s conduct violates clearly established constitutional principles of which a reasonable official should have known. Anderson , supra; Saucier v. Katz, 121 S. Ct. 2151 (2001). To demonstrate that a government official violated “clearly established” law and is not entitled to immunity, a plaintiff must show that the rights at stake were sufficiently “apparent” or “obvious” to give the official “fair warning” of what the law required. Anderson, supra, 483 U.S. at 640; United States v. Lanier, 520 U.S. 259, 270 (1997) Under the present analysis prescribed by the Supreme Court, there are two steps to the qualified immunity inquiry: (1) The court must first determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the official’s conduct violated a constitutional right; and (2) If a violation can be made out, the court must then ask whether the right was clearly established. Saucier v. Katz, 121 S. Ct. 2151 (2001). In other words, the first step of the immunity analysis is to determine whether the facts as alleged support a constitutional violation, and the second step is to determine whether that law was sufficiently clear to give a reasonable official “fair notice” that his conduct is unlawful; it is not necessary that there be a prior litigated case involving similar facts if a rule articulated by prior law applies with obvious clarity to the facts at hand. Hope v. Pelzer, 536 U.S. 730 (2002)

D. SUING THE MUNICIPALITY

A municipality can only be held liable for the unconstitutional act of one of its officers to the extent that the officer was acting pursuant to some custom, policy, or practice of the municipality. Monell v. Department of Social Services, 436 U.S. 658 (1978); Owen v. City of Independence, 445 U.S. 622 (1980) It is usually necessary to sue the individual official as well as the governmental entity because there is no respondeat superior under 42 U.S.C. Sec. 1983. Since the governmental defendant will only be liable if its official customs or policies were the moving force behind the constitutional violation, it is difficult to prove entity liability. See Monell v. Department of Social Services, 436 U.S. 658 (1978); City of Canton v. Harris, 489 U.S. 378 (1989). However, it is the practice of most government agencies to insure or indemnify their employees against Section 1983 claims.

Deficiencies in training are one manner in which a custom, policy, or practice of condoning excessive can be established.City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (custom or policy cannot be inferred from a single example of police misconduct); City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197 (1989) (it is not necessary that the policy be unconstitutional on its face, only that it be the moving force behind the violation of the plaintiff’s rights). Under City of Canton, it is not necessary that a department’s use of force policy be facially invalid if you can show that it was inadequate in some way which caused the officer to behave unconstitutionally–perhaps because training under the policy did not go far enough to inform officers of the constitutional limits on their authority.

A custom, policy, or practice may be inferred from a pattern of excessive force. If the defendant’s department has a pattern of failing to discipline officers who have committed acts of excessive force, then a case can be made that the true policy of the department is to condone excessive force rather than to prohibit it–regardless of what the department’s written policy might say. See Gilmere v. City of Atlanta, 774 F. 2d 1495, 1503 n. 9 (1th Cir. 1985). Having no policy at all may impute liability to the municipality under City of Canton, which states in a footnote that a city can be held liable for deliberate indifference in failing to train officers with respect to a serious law enforcement problem for which the need for training is obvious. 489 U.S. 378, 109 S. Ct. 1197 at n. 10; see Vineyard v. Murray County, Georgia, 990 F. 2d 1207, 1212 (11th Cir. 1993 (“the evidence demonstrates that the Sheriff’s Department had inadequate procedures for recording and following up complaints against individual officers … no policies and procedures manual … [and] inadequate policies of supervision, discipline and training of deputies”); but see also Gold v. City of Miami, 151 F. 3d 1346, 1351-52 (11th Cir. 1998) (“this Court has held that without notice of a need to train or supervise in a particular area, a municipality is not liable as a matter of law for any failure to train and supervise…”).

Another way is to determine whether the defendant is a problem officer or “bad apple” who should have never been hired or retained in the first place, in which case you may not only be able to prove liability based upon deficient policies pertaining to hiring and supervision of officers, but also based upon the very hiring decision which led to the employment of the officer and placed him or her in a position to violate citizen’s rights. In Bryan County v. Brown, 117 S. Ct. 1382 (1997), the Supreme Court held that a municipality may be held liable under Section 1983 in the context of a single bad decision to hire an officer who violated constitutional rights. In that case, it was stipulated that the county sheriff who hired the officer (who was the sheriff’s own nephew and who had an extensive criminal record) was the final policymaker for the county with regard to law enforcement, so that the actions of the sheriff with regard to law enforcement could be deemed to represent official county policy. This is consistent with the final decisionmaker/policymaker line of cases holding that “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may be said to represent official policy, inflicts the injury that the government as an entity is responsible under [Section] 1983.” Monell, supra, 436 U.S. at 694 (1978); Owen, supra; see also Pembaur v. City of Cincinatti, 475 U.S. 469, 106 S. Ct. 1292 (1986); City of St. Louis v. Praprotnik, 485 U.S. 107, 108 S. Ct. 915 (1988); but compare McMillian v. Monroe County, 520 U.S. 781 (1997) (under Alabama law, a sheriff is a state constitutional officer rather than a county official so that liability for his unconstitutional acts cannot be imputed to the county) and Manders v. Lee, 338 F. 3d 1304 (2003), cert. denied (2004)

(holding pursuant to McMillian that sheriff is a state rather than county officer in context of use of force at the jail, and thus has Eleventh Amendment immunity).

E. TYPICAL CAUSES OF ACTION

1. EXCESSIVE FORCE

This is the area of police work which is most likely to result in injury to citizens. Claims of excessive force against persons at liberty (as opposed to in a jail or prison context) are evaluated under the Fourth Amendment, which prohibits unreasonable searches and seizures of persons and property. Since the use of physical force, whether deadly or non-deadly, has the effect of seizing one’s body, any excessive force is viewed as an unreasonable seizure of the person, which is prohibited by the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1964 (1985); Graham v. Connor, 109 S. Ct. 1865 (1989) The Garner case prohibits the use of deadly force against a fleeing suspect who does not appear to be armed or otherwise dangerous; the Graham case held that all excessive force cases involving an arrest, investigative stop, or any other “seizure” of a person at liberty are governed under the reasonableness standard of the Fourth Amendment. That standard is an objective one–in other words, the reasonableness of the force must be judged from the perspective of a reasonable officer on the scene, not based upon hindsight, and should taken into account that police officers are often forced to make split-second judgments about the amount of force needed.

Because of this language in Graham, Defendants will invariably ask for–and get–a charge to the jury about how officers are forced to make-split second judgments. Plaintiffs will need to counter this charge–and the argument that comes with it–by pointing out that officers are trained to make split-second decisions in much the same way that drivers are trained to make split-second decisions about whether to slow down or speed up when a traffic light turns yellow. Most of us accept the fact that if we make a mistake in judgment which injures someone, we are ultimately responsible for the consequences, and accordingly, police officers are not held to any higher standard. Indeed, if the court gives the split-second decision charge for the defendant, then the plaintiff should also request a charge that police officers are not held to a higher standard under the law than anyone else.

There is no precise, mechanical standard for determining what is reasonable. That determination must be made on a case-by-case basis, requiring “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect imposes an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” 109 S. Ct. at 1872. For example, a higher degree of force may be necessary to stop a masked intruder scaling the fence to the Governor’s Mansion than a group of teenagers climbing a fence around a swimming pool. Because of the fact-intensive nature of this inquiry, most excessive force cases involve a jury question, and I would submit that most excessive force cases–at least those arising under the Fourth Amendment-should not be disposed of on qualified immunity grounds because there will inevitably be a factual dispute requiring jury resolution, and the version of the facts most favorable to the plaintiff will usually violate the clearly established principles of constitutional law set forth in Garner, Connor, and their progeny.See Harrell v. Decatur County, 22 F.3d 1570, 1575 (11th Cir. 1994); Montoute v. Carr, 114 F. 3d 181 (11th Cir. 1997); Priester v. City of Rivera Beach, 208 F. 3d 919, 924 (11th Cir. 2000); and Vaughan v. Cox, 343 F.3d 1323 (11^th Cir. 2003).

2. HIGH SPEED PURSUITS

This is currently a hot topic. There are basically two types of cases: (1) Those in which the officer’s car is used as an offensive weapon to ram a suspect’s vehicle and force it stop fleeing, perhaps with disastrous consequences for the offender or an innocent third party; and (2) Those in which the officer’s car makes no contact with the suspect’s vehicle but may escalate the chase and cause the suspect to behave in a manner which he would not have but for the officer’s intervention.

The first type of case is analogous to a seizure or use of force, with the officer’s control car being the weapon, and accordingly, such cases should be asserted under the objective reasonableness standard of the Fourth Amendment. See, generally Brower v. County of Inyo, 109 S. Ct. 1378 (1989) (while mere high speed pursuit is not a seizure, placing a roadblock in the path of a fleeing vehicle may constitute an unreasonable seizure under the Fourth Amendment). Conduct during pursuits which does not constitute a seizure of the plaintiff must be analyzed underr a Fourteenth Amendment substantive due process standard. County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998) Under Lewis, police have no liability for injuries caused by pursuits that do not “shock the conscience,” such as where the officer deliberately causes unjustified harm.

In Lewis, the Supreme Court established a more restrictive standard of liability for damages caused by vehicular pursuits under the Fourteenth Amendment than for vehicular seizures under the Fourth Amendment. Compare Brower v. County of Inyo, 489 U.S. 593, 597 (1989)(“if…the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). That is because the Fourth Amendment merely requires that seizures be reasonable, without regard for the subjective good or bad faith of the officer, while some level of intent is required to establish a Fourteenth Amendment violation. Although it is generally easier to establish an unreasonable use of force under the Fourth Amendment than a deliberate injury under the Fourteenth, the facts of this case are sufficiently compelling to support either.

In analyzing the plaintiffs’ claim in Lewis, the Supreme Court ruled that the “denial of due process is to betested by an appraisal of the totality of the facts in a given case.” Id. at 1720. (Emphasis added). Under the facts of Lewis, the Supreme Court held that a brief pursuit “with no intent to harm suspects physically OR worsen their legal plight do[es] not give rise to liability.” Id. at 1711. Lewis makes it clear that in order to prevail under the substantive due process component of the Fourteenth Amendment, a plaintiff must prove that the conduct of the defendant ‘shocks the conscience.’ This determination must be based upon the totality of the circumstances. As the Supreme Court noted in Lewis, conduct which ‘shocks the conscience’ in one setting may not do so in another. The issue in Lewis was whether injurious conduct which was an unintentional consequence of a high-speed pursuit violated substantive due process, since the law was already clear that an intentional injury would be sufficient to shock the conscience.

Since it is virtually impossible to shock the conscience of a federal judge, Fourth Amendment substantive due process claims rarely succeed. Ironically, it is easier for a fleeing felon to recover for injuries sustained in a pursuit (i.e., if the officer deliberately rammed him without justification) than it is for an innocent bystander who is simply in the wrong place at the wrong time under federal civil rights law, but that is because the Constitution protects those with whom the State makes deliberate contact (i.e., a criminal suspect) for the purpose of terminating personal liberty. The innocent bystander fares better under state tort law. See O.C.G.A. §40-6-6(d)(2) and City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003) (officer may be held liable to bystander for reckless disregard for established police procedures, but fleeing offender may only sue if officer intended to cause harm).

3. FALSE ARREST

Like the use of excessive force during the course of an arrest or investigatory stop, an arrest without probable cause constitutes an unreasonable seizure of the person in violation of the Fourth Amendment which is actionable under 42 U.S.C. §1983. Under the Fourth Amendment, it is axiomatic that the reasonableness of an arrest or other seizure is determined from the standpoint of a reasonable officer under similar circumstances. See, e.g., Pierson v. Ray, 386 U.S. 547 (1967); Reeves v. City of Jackson, 608 F. 2d 644 (5th Cir. 1979); Motes v. Myers, 810 F. 2d 1055 (11th Cir. 1987); see also Tennessee v. Garner, 105 S. Ct. 1694 (1985). As is the case with use of force claims, the reasonableness of an arrest or other bodily seizure turns upon the particular facts, although there are some general principles which provide guidance. For instance, an officer who makes an arrest pursuant to a warrant is typically insulated from liability by the intervening determination of probable cause by the judicial officer issuing the warrant; however, the rule does not apply if the arresting officer knows that the warrant was based upon false information but makes the arrest anyway. Malley v. Briggs, 475 U.S. 335 (1986); Barts v. Joyner, 865 F. 2d 1187 (11^th Cir. 1989). Similarly, an officer who gives false testimony in support of an application for an arrest warrant is not insulated from liability by the warrant. Olsen v. Tyler, 771 F.2d 277 (7^th Cir. 1985); Cf. Franks v. Delaware, 438 U.S. 154 (1978).

An arrest is unreasonable per se if it is in retaliation for protected speech directed toward to the officer, although the plaintiff still has to overcome the officer’s qualified defense. See Duran v. City of Douglas, 904 F. 2d 1372 (9th Cir. 1990);Losch v. Borough of Parksburg, 736 F. 2d 903 (3rd Cir. 1984); Leslie v. Ingraham, 686 F. 2d 1533 (11th Cir. 1986); Freeman v. Blair, 862 F. 2d 1330 (8th Cir. 1988); Wilson v. Thompson, 593 F. 2d 1375 (5th Cir. 1979), on remand, 638 F. 2d 777 (5th Cir. 1981); compare Durruthy v. Pastor, 351 F. 3d 1080 (11^th Cir. 2003). If the interplay between the Fourth and First Amendments does not seem significant at first blush, consider the number of people who get arrested-or have additional charges tacked on-because they mouthed off to a police officer.