excessive force and the fourth amendment
TRANSCRIPT
2019 Edition
Excessive Force and the Fourth Amendment
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Excessive Force and the
Fourth Amendment A Nuts-and-Bolts Examination
Presented by
Allison L. Bussell, Assistant Metropolitan Attorney
Metropolitan Government of Nashville
and Davidson County, Tennessee
We Will Cover: Overview of 42 U.S.C. §1983 and Standard of Proof for Excessive
Force Claims
Primary Defenses to Section 1983 Claims Generally and Excessive Force Claims Specifically
Qualified immunity
How does the standard of proof differ between municipalities and individual defendants?
Public versus private entities
SCOTUS Trends in Qualified Immunity and Excessive Force
Hot Topics in Excessive Force
Social media
Technology
Body cameras
42 U.S.C. § 1983:
The Text “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress . . .”
Section 1983 (cont.)
Commonly referred to as “Section 1983.”
Cannot assert a constitutional claim directly.
This federal statute is the procedural vehicle through which a
constitutional claim is asserted.
Provides a cause of action against a state or local
government and individual employees of a state or local
government.
An Aside:
What About Federal Actors?
By its language, Section 1983 does not cover claims against
federal employees.
Cause of action for excessive force exists under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
More limited than Section 1983 claims, both in scope of claim
and standard of proof.
Federal Actors (cont.)
Scope:
Provides an implied damages remedy for Fourth Amendment injuries
Has not been extended to all constitutional violations
Standard of proof:
Limited cause of action against federal employees for “particularly egregious” Fourth Amendment violations
Claim for money damages against federal officers who abuse their constitutional authority
Available only if no alternative, existing processes for protecting the constitutional interest and there are no special factors counselling against relief
Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); Jacobs v. Alam, 915 F.3d 1028 (6th Cir. 2019)
The “Excessive Force” Claim
Derives from the Fourth Amendment’s text
“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated . . . ”
Graham v. Connor, 490 U.S. 386 (1989)
A claim that law enforcement used “excessive force” to effect an arrest,
investigatory stop, or other “seizure” is governed by this
“reasonableness” standard built into the Fourth Amendment.
Source & Standard: Fourth Amendment reasonableness, not
substantive due process
Graham states explicitly what was implied inTennessee v. Garner, 471
U.S. 1 (1985)
In Garner, both claims alleged; only Fourth Amendment addressed
“Excessive Force” Principles
OBJECTIVE question, viewed from the perspective of a
“reasonable officer on the scene” – not with 20/20 vision of
hindsight
Officers “are often forced to make split-second judgments” in
“tense, uncertain, and rapidly evolving” situations.
Analysis “requires a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at
stake.”
Excessive Force Principles (cont.)
The Graham Factors
the severity of the crime at issue
whether the suspect poses an immediate threat to
the safety of officers or others
whether the suspect is actively resisting arrest or
attempting to evade arrest by flight
“Excessive Force” Principles (cont.)
Graham distinguishes this “objective” standard from the Eighth
Amendment, which has a “subjective” component
The “objective” nature of the analysis cuts both ways
Subjective motivations (even desire to inflict pain) are irrelevant
No benefit of unknown criminal history
Question is whether the force was reasonable under the
circumstances with which the officer was presented
“Excessive Force” Principles (cont.)
Existence of probable cause does not excuse otherwise
excessive force
Tennessee v. Garner, 471 U.S. 1 (1985)
Other side of the same coin: Whether officer is lawfully
present on suspect’s property is irrelevant to whether officer
used excessive force – separate analysis
County of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539 (2017)
Monell and Excessive Force
Claims Against the Government
In 1978, the Supreme Court decided Monell v. Dep’t of Social
Servs. of City of New York, 436 U.S. 658.
That case has provided the framework for Section 1983 claims
against a local government for decades to follow.
Monell: Two Significant Holdings
Congress intended for Section 1983 to apply to municipalities
and other local government units. (reversing Monroe v. Pape,
365 U.S. 167 (1961))
Congress did not intend for municipalities to be held liable
under Section 1893 unless the action at issue was taken
pursuant to a custom, policy, or practice of the local
government. (i.e., no vicarious liability)
Four Primary Theories of
Recovery Under Monell
THEORY ONE: Unconstitutional policy
E.g., social media policy, sign ordinance
THEORY TWO: Unconstitutional action taken pursuant to policy
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)
Decision or action by a final authority on municipal policy
Can arise in evolving areas of the law, where norms change
What was acceptable in 1985 may not be in 2019
Four Primary Theories of
Recovery Under Monell (cont.)
THEORY THREE: Failure to train
Concept: training is the custom or practice at issue
Need for more or different training is “so obvious and so likely to cause constitutional violations” so as to constitute “deliberate indifference” in not adopting (City of Canton, Ohio v. Harris, 489 U.S. 378 (1989))
Training program reviewed as a whole
Shortcoming in one officer’s training insufficient
Negligent administration of program insufficient
Pattern of similar violations usually necessary
Custom or practice must be the moving force (causal link)
Four Primary Theories of
Recovery Under Monell (cont.)
THEORY FOUR: Failure to supervise (supervision is the
custom or practice)
Clear pattern of unconstitutional action required
Notice or constructive notice by municipality required
Tacit approval amounting to deliberate indifference required
Custom or practice must be the moving force (causal link)
How to Defend a Monell Claim
A finding of an unconstitutional act by an agent of the government defendant is a prerequisite to a finding of liability against the government.
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985)
The agent need not be a defendant.
Structure verdict forms accordingly and insist on a Tuttle jury instruction.
Most typical defense is that the action, even if unconstitutional, did not take place pursuant to a custom, policy, or practice of the government.
Qualified Immunity Defense:
Immunity From Suit
Shields public officials from “undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800 (1982)
This defense provides immunity from suit, not merely immunity from liability.
The immunity is effectively lost if a case erroneously proceeds to trial.
Thus, Supreme Court has emphasized that courts should resolve questions concerning qualified immunity at the earliest possible stage of litigation. Mitchell v. Forsyth, 472 U.S. 511 (1985); Hunter v. Bryant, 502 U.S. 224 (1991)
Denial is immediately appealable, so long as it turns on a legal question.
Hotly-litigated
Circuit Courts routinely reject pre-trial appeals as hinging on fact disputes
Qualified Immunity Defense:
What Does It Mean in Practice?
Qualified immunity “gives public officials breathing room to
make reasonable but mistaken judgments about open legal
questions” and “[p]rotects all but the plainly incompetent or
those who knowingly violate the law.” Ashcroft v. al-Kidd, 563
U.S. 731 (2011).
What does this mean practically?
A government official will not be held liable if the law existing at
the time of the act would not have put the official on notice that
his or her actions were unlawful.
The question is not whether the official violated someone’s
constitutional rights, but whether the official should have
known – based on clearly-established law – that his or her
conduct was unlawful in the situation he or she confronted.
Qualified Immunity: Narrow Review Question of whether clearly-established law put the official on notice of a
constitutional violation CANNOT be answered at a high level of generality.
Not enough to say it is clearly-established that an officer not use excessive force.
If area of unsettled legal authority is at play, may have a constitutional violation
but still be entitled to qualified immunity.
Key Cases:
Brosseau v. Haugen, 534 U.S. 194 (2004)
Court emphasizes the standard
Ashcroft v. al-Kidd, 563 U.S. 731 (2011)
Court addresses the Court of Appeals’ errors
Recently, the Supreme Court gets involved when courts get this wrong!
(more later)
Qualified Immunity:
Does the Order of the Analysis Matter?
In Saucier v. Katz, 533 U.S. 194 (2001), the U.S.
Supreme Court set forth a qualified immunity analysis that
was followed for years to follow:
Threshold inquiry was whether the facts, taken in the light
most favorable to the party asserting injury (usually plaintiff)
established a constitutional injury.
If no constitutional right was violated under the facts as
pleaded, “there is no necessity for further inquiries
concerning qualified immunity.”
Qualified Immunity: Does the
Order of the Analysis Matter? (cont.)
The Supreme Court reversed course in Pearson v. Callahan, 555 U.S. 223 (2009).
Lower courts have DISCRETION to skip past the constitutional question inquiry and move straight to clearly-established law.
BUT, the Saucier procedure “is often beneficial” because “it promotes the development of constitutional precedent . . . ”
E.g., Plumhoff v. Rickard, 572 U.S. 765 (2014) – SCOTUS addresses constitutional issue first, finding it “‘beneficial’ in ‘develop[ing] constitutional precedent’ in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense.”
Final Defense:
Is the Defendant a Private Entity?
The constitutional rights that are asserted through Section
1983 apply only to “state action.”
Section 1983 also has a “color of law” element.
Private actors are generally not subject to suit under
Section 1983 for constitutional violations.
Private actors can be sued for constitutional violations only
where their action is “fairly attributable to the state.”
Is the Defendant a Private Entity? (cont.)
Several tests have been utilized to answer the question(e.g.,
public function, state compulsion, nexus test).
Receipt of money alone does not
Performance of a state function alone does not
Merely providing information or requesting state or local assistance
does not
Conspiring with state actors to violate civil rights does
All tests boil down to whether the private party’s action renders
it a “state actor.”
SCOTUS Trends on Qualified
Immunity and Excessive Force
Numerous excessive force cases in past 5 years
Why are these cases important?
Plumhoff v. Rickard, 572 U.S. 765 (2014)
Mentioned earlier – references Pearson v. Callahan
SCOTUS addresses first prong first to establish legal standards
“‘beneficial’ in ‘develop[ing] constitutional precedent’ in an area that that
courts typically consider in cases in which the defendant asserts a qualified
immunity defense.”
SCOTUS Trends (cont.)
More recently, shift toward focusing on second prong
Mullenix v. Luna, 136 S. Ct. 305 (2015)
White v. Pauly, 137 S. Ct. 548 (2017)
County of Los Angeles, CA v. Mendez, 137 S. Ct. 1539 (2017)
Kisela v. Hughes, 138 S. Ct. 1148 (2018)
City of Escondido, CA v. Emmons, No. 17-1660 (Jan. 7, 2019)
Problems with the trend
Hot Topics in Excessive Force
Camera phone impact
Everything is on film
1991 (Rodney King) versus 2019
Social media impact
Instant opinion
Jury pool problems
Police department body cameras
Privacy concerns
Careful policy-drafting
How Do We Examine New Cases?
The law – not emotions – must guide the analysis.
Subjective motivations are irrelevant
Past criminal history, if unknown, is irrelevant
Public opinion does not address these tough issues the same way the
law does
Gather facts before forming opinions.