Major Crime Assistance Team Seminar, Police Liability & Defenses Under State & Federal Law, February 20, 2014 By Robert H. Hanaford
Police officers require a multitude of professional qualities ranging from diplomat to psychologist. An officer may be called upon to help a lost child's parents, or to assist a stranded motorist. In the next instant, an officer may be presented with a life threatening situation. In the course of his shift, an officer is likely to see the best and the worst society has to offer. State and Federal law grants police officers with an enormous amount of power. Along with the grant of power are imposed responsibilities. This article will focus upon the duties imposed upon police officers under Federal and State law. Some of the topics covered will include liability of municipalities for the conduct of police officers, excessive use of force, hot pursuit, searches and arrests.
- Federal Law - The Civil Rights Act
The Civil Rights Act1 is the Federal Statute most frequently invoked in claims of police misconduct. Section 1983 of the Act contains broad language which has been interpreted by the courts as providing a remedy to redress a multitude of abuses by government. Section 1983 provides that:
- Every person who, under the color of any Statute, ordinance, regulation, custom, or usage, of any State or Territory or 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 deprvivation 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 by itself does not create rights. Rather, a specific constitutional amendment must be invoked giving rise to the right. For instance, depriving an individual of the rights guaranteed under the First, Fourth, Fifth, Sixth or Eighth Amendments may result in liability under Section 1983. Specifically, freedom of speech under the 1st Amendment; freedom from unreasonable search and seizure under the 4th Amendment; the right against self-incrimination under the 5th Amendment; the right to counsel under the 6th Amendment; and the protection against cruel and unusual punishment under the 8th Amendment.
To state a cause of action under section 1983 a plaintiff must allege: (1) a deprivation of a right guaranteed by the Constitution or laws of the United States; and (2) that a person acting under color of state law caused the deprivation. 2
- Persons Liable Under Section 1983
Section 1983 may apply to every person who acts "under color of any statute, ordinance, regulation, or usage, of any State...." A person acts under color of State law when he exercises power that is granted only by virtue of State law and made possible only because the person is clothed with authority of State law.3 For example, persons acting under color of State law may include police officers, prison guards and public school officials. When a police officer conducts a search, seizure or arrest, he is acting by authority granted under State law. It should also be noted that the term "person", as used in Section 1983, has been interpreted to include both real persons and governmental entities.4 In addition, supervisors and other officers who were only present may be held liable.
- Qualified Immunity As Defense From Suit
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation. The privilege is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is lost if a case is erroneously permitted to go to trial."5 Qualified immunity is intended to be raised at the earliest opportunity in a lawsuit.6
The qualified immunity analysis considers two factors: (1) whether the facts alleged or shown by plaintiff make out a violation of a constitutional right and (2) if so, whether that right was clearly established at the time of defendant's alleged misconduct.7
In Harlow v. Fitzgerald,8 the court noted that "Government Officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." If the law at the time was not clearly established, an official cannot reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. In general, qualified immunity extends protection from liability to all but the most incompetent or those who intentionally violate the law.
The qualified immunity doctrine is intended to ensure that non-meritorious claims against government officials will be dismissed early in the lawsuit. The Supreme Court in Pearson v. Callahan,9 noted that "we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.10"
The qualified immunity doctrine is best understood from the rational for which created; namely, to allow government officials to go about their duties without the constant threat of a lawsuit. The Pearson court noted:
- Qualified immunity balances two important interests the need to hold public officials accountable when the exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact or a mistake based on mixed questions of law and fact.11
- Conduct Prohibited By Section 1983
Section 1983 prohibits conduct that "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...." Section 1983 does not have a state of mind requirement, as in the case of a criminal statute. It is only necessary that the person acting under color of state law intended the act that deprived one of his rights. In other words, it is not necessary that the person acted with the specific intent to deprive another of his rights. However, it is necessary that the conduct rise to a level beyond negligence. Constitutional protections simply are not implicated by a negligent act causing unintended loss of or injury to life, liberty or property.12
The theory behind Section 1983 is to provide a remedy against oppressive government conduct, not negligence. For example, a police officer who negligently drives his squad car into another person is not liable under Section 1983 if he was only negligent. Section 1983 was designed to provide a remedy against abuses of power by governmental officials. Negligent conduct simply does not rise to the level of a constitutional violation. Historically, constitutional violations have been attributed to deliberate acts, such as using excessive force,13 or to deliberate indifference,14 such as ignoring a person in custody who is seriously ill or injured.
Two elements are necessary to recover under Section 1983: (1) plaintiff must establish that defendant has deprived plaintiff of a right secured by the "Constitution and laws" of the United States; and (2) that defendant deprived him of this right while acting under color of State law.15 Section 1983 has broad applications. Individual Police Officers, Police Supervisors and Municipalities may be held to answer in money damages for violation of Section 1983. Each group will be discussed separately in the following Sections:
- Police Officer Liability
The majority of Section 1983 cases concerning Police Officers have dealt with excessive use of force, search and seizure, arrest and failure to enforce the law.
- Excessive Use of Force
Some degree of force along the use of force continuum is used in any arrest situation, whether the force of verbal commands, physical control or use of a weapon. The cases that follow involve lawsuits claiming excessive force. Claims under Section 1983 alleging excessive use of force invoke the protection against unreasonable seizure found in the 4th Amendment
In determining whether there was excessive use of force, an objective reasonableness standard is applied by the court.16 This means that the officer's conduct is considered in light of the totality of the circumstances she was confronted with at the time. Each case presents its own facts which must be carefully balanced considering the force used in relation to the situation confronted by the officer. In general, qualified immunity extends protection from liability to all but the most incompetent or those who intentionally violate the law.17
The Supreme Court's decision in Graham v. Connor 18 discusses the standard to be applied in analyzing excessive force situations. In Graham, the plaintiff sought recovery for damages allegedly sustained when officers used physical force during an investigatory stop." 19 The Court held that:
- All claims that law enforcement officers have used excessive force deadly or not in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amend- ment and its "reasonableness" standard.... Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of "the nature and quality of the intrusion on the individual's Fourth Amend- ment interests at stake. 20
The court recognized that whether there was excessive force is not susceptible to a mechanical application. Rather, the parts of each case must be considered with attention to: (1) The severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the officers and others; and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. 21
The court also recognized that Police Officers are often called upon to make split second decisions without the benefit of lengthy reflections:
- The "reasonableness" of a particular use of force must be judged from the perspect- ive of a reasonable officer on the scene, rather than with the 20/20 vision of hind- sight. Not every push or shove, even if it may later seem unnecessary in the peace of a Judge's Chambers ... violates the Fourth Amendment.
- Deadly Force
The general rule is that police may use deadly force "where the officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others." 22
However, the mere possession of a firearm by a suspect is not sufficient cause for the use of deadly force. "Instead, deadly force may only be used by a police officer when, based on reasonable assessment, the officer or another person is threatened with the weapon." 23
In Ford v. Childers,24 Ford filed a Section 1983 action claiming excessive force was used when he was shot while fleeing a bank robbery. Officer Childers responded to a silent alarm and observed plaintiff through a window. Plaintiff had his arm extended toward several people in the bank. However, Childers was unable to see if plaintiff had a weapon in his hand because a pillar blocked his view. When Ford ran out of the bank, Childers yelled twice for him to halt. When the verbal warnings were ignored, Childers and his partner opened fire hitting Ford several times. The court granted defendant's motion for a directed verdict and plaintiff appealed.
The Circuit Court held that Officer Childer's decision to use deadly force was objectively reasonable. 25 Based upon the facts available to Childers at the time he fired at Ford, "a reasonable jury could only conclude that Officer Childers had probable cause to believe that Ford posed a threat of serious physical harm to himself and/or to others." The court found it significant that Childers warned Ford twice before firing. 26
The Court concluded:
- Because we as Americans respect the dignity of human life, the firing of a weapon must never become an automatic response to the law enforcement officer when attempting to capture a fleeing felon. Law enforcement officers must never forget that their decision to use a weapon must be reasonable given the totality of the facts and circumstances known to them at the critical moment the decision is made to use deadly force. 27
In Escobedo v. Martin,28 the Crisis Response Team (CRT) was called to an apartment building by Escobedo who told dispatch that he was barricaded in his apartment, was depressed, had taken cocaine and had a gun to his head. He said he was alone and was not going to harm anyone else. Police tried negotiating with him to no avail. Eventually tear gas and a flashbang grenade were used to enter the apartment. Upon police entering, Escobedo was sitting in his closet with a pistol to his head. He would not drop the gun and according to police accounts he pointed it police. He was shot and killed.
A lawsuit was filed claiming excessive use of force. Following a jury trial, the court entered judgment in favor of defendant police officers based on qualified immunity. The appellate court affirmed finding that the officers acted reasonably under the circumstances. The court noted that "qualified immunity shields government officials from liability under section 1983 for action taken while performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known."29 The court also noted that "a constitutional right is clearly established when it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."30
The court found that it has been clearly established "that throwing a flash bang device blindly into an apartment where there are accelerants, without a fire extinguisher, and where the individual attempting to be seized is not an unusually dangerous person, is not the subject of arrest and has not threatened anyone but himself." The court also noted "that the use of tear gas is unreasonable when the individual does not pose an actual threat."31
Under the circumstance the use of the flashbang device and tear gas was not unreasonable. Escobedo did pose an actual threat. He was armed and barricaded in a location that 'created a fatal tunnel-the area of an entryway where a tactical team might be shot at as they are coming through the door." He was a potential risk to bystanders.32 Regarding the shooting of Escobedo, the court found that assuming that he extended his arm toward the officers, as testified by the officers, the use of deadly force was not unreasonable. Therefore, qualified immunity applies.33
In Fraire v. Arlington,34 plain clothed officers were found to have acted reasonably where they shot and killed a suspect that was driving at a high rate of speed in a residential area and who attempted to run an officer down. The suspect presented imminent danger to the officers and others. In Hydain v. Tennerton,35 the court found that there was excessive use of force when two officers maced and beat an 80 year old Alzheimer's patient who appeared to be driving while intoxicated. The court did not give credibility to the defense that the plaintiff was resisting arrest.
In Goetz v. Cappelen,36 there was a finding in favor of plaintiff despite testimony by four officers that there was no unreasonable use of force. The court found ample evidence of plaintiff's injuries, including photos and testimony of plaintiff's treating doctor.
In Williams v. Adams,37 there was a finding that excessive force was not used since the officers used no more force than was necessary to restrain a paranoid schizophrenic tractor trailer driver who refused to stop at a weigh station and a road block.
In Abbott v. Sangamon County,38 the mother of a 20 year son was tased when interfering with the arrest of her son. The court noted that "it is unlawful to deploy a taser in dart mode against a nonviolent misdemeanant who had just been tased in dart mode and made no movement when, after the first tasing, the officer instructed her to turnover." The court noted that generally it is well established that police officers are not to use significant force on nonresisting or passively resisting suspects. Further, continued use of force after a suspect is subdued is not justifiable. 39
If there is to be one guiding principle in use of force situations, it is that officers should use only that force necessary to accomplish their purpose considering the threat to officers and others by the suspect. Cases resulting in liability to officers generally involve serious injury to an individual who was arrested for a minor offense.
- High Speed Police Pursuits
When discussing use of deadly force it is natural to think firearms. However, studies have found that a significant number of injuries and death occur from high speed pursuits.40 Lawsuits resulting from police chases may arise from injury and death to innocent bystanders as well as the suspect being pursued. Pursuit cases are considered in the context of excessive use of force under the Fourth Amendment.
In Scott v. Harris,41 Scott, a Georgia county deputy, clocked Harris doing 73 mile per hour in a 55 mile per hour zone. It was around 10:30 p.m. and most of the chase occurred on two lane roads in non-congested areas. Harris decided to flee and a chase ensued ultimately resulting in Scott terminating the pursuit by use of a "Precision Intervention Technique" which caused the Harris vehicle to spin and it roll over resulting in Harris becoming a quadriplegic.42
The District Court denied denial of Scott's motion for summary judgment based on qualified immunity and the Court of Appeals affirmed. The issue before the Supreme Court was whether the deputy acted reasonably when he terminated the chase. The Court concluded that the police car video evidence established that Harris was driving in a reckless manner and he presented a danger to other motorists and pedestrians. Therefore, he did not violate the Fourth Amendment right against unreasonable seizures.
The Court rejected the argument that Scott could have ceased the pursuit thereby protecting the innocent public and preventing the accident. The court reasoned that to condone giving up a chase could encourage suspects to drive recklessly secure in the knowledge that the police will stop the chase. Further, there is "no way to convey convincingly to [the suspect] that the chase was off, and that he was free to go." The Court concluded: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."
- Warrants, Searches & Arrests Under the Fourth Amendment
The objective reasonableness standard is again the guiding principle in which claims for unreasonable searches and false arrests are analyzed under Section 1983. In Anderson v. Creighton, 43 an FBI agent conducted a warrantless search of plaintiff's home on the belief that a bank robber was hiding out. The robber was not there. The district court granted the defendant's motion for summary judgment and the Court of Appeals reversed on the grounds that the lawfulness of the search presented a factual issue for the jury and the agent clearly violated plaintiff's Fourth Amendment rights since there was neither probable cause nor exigent circumstances to search without a warrant. 44
The Supreme Court found that the Court of Appeals applied too strict a standard. Because an Officer violates a person's constitutional right does not automatically subject him to damages under Section 1983.45 The Officer is entitled to qualified immunity. The issue is whether the agent could have reasonably believed that his search was legal; not whether it in fact was legal. 46 The court noted:
- The principals of qualified immunity that we reaffirm today require that [an officer] be permitted to argue that he is entitled to summary judgment on the grounds that, in light of the clearly established principles governing warrantless searches, he could ... reasonably believe that the search ... was lawful.47
In Abbott v. Sangamon County,48 the court noted that "the existence of probable cause to arrest is an absolute defense to any section 1983 claim for false arrest or false imprisonment." Further, "probable cause to justify an arrest exists if the totality of the facts and circumstances known to the officer at the time of the arrest would warrant a reasonable, prudent person in believing that the arrestee had committed, was committing, or was about to commit a crime." 49 In Abbott, the police arrived on the scene after a call by an animal control officer who was allegedly assaulted by 20 year old Travis Abbott and his mother when investigating a complaint of the Abbott dog roaming at large. An otherwise routine matter escalated to Travis being arrested and his mother being zapped with a taser. The Abbotts filed a lawsuit for false arrest, false imprisonment and excessive use of force under section 1983. The court found that there was probable cause to arrest the Abbotts so there was absolute immunity on the false arrest and imprisonment claims. When the officers arrived on the scene they were informed by the animal control officer that Travis threatened to hit him. Further, whether a conviction of the offense occurs is not a factor, only that there was probable cause. 50
Police officers are also granted qualified immunity when signing an affidavit for an arrest warrant. In Malley v. Briggs,51an arrest warrant was obtained by Rhode Island State Trooper, Edward Malley (petitioner) against James and Louisa Briggs (respondents) based upon information the petitioner obtained through a court ordered wire tape of a friend of respondents' daughter. The affidavit submitted to the judge for the arrest warrant had, at best, vague and ambiguous allegations that plaintiffs were in possession of small quantities of marijuana at a party.52 The charges against the plaintiffs were dropped when the Grand Jury did not return an indictment.
The respondents brought an action under the section 1983 claiming that petitioner violated their Fourth Amendment rights when he applied for the arrest warrants. The trial court granted a motion for directed verdict in favor of petitioner on the grounds that the act of the judge in issuing the arrest warrants in and of itself precluded the officer from being liable. The Court of Appeals reversed holding that "an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless the officer has an objectively reasonable basis for believing the facts ... establish probable cause." 53
The Supreme Court affirmed the decision of the Court of Appeals. The issue considered by the Court was "the degree of immunity accorded a defendant police officer in a damages action under 42 U.S.C. Section 1983 when it is alleged that the officer caused the plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and supporting affidavit which failed to establish probable cause." 54
Petitioner argued that an officer obtaining a warrant ought to have absolute immunity similar to a prosecutor who obtains an indictment. The court rejected the argument and noted that section 1983 has been interpreted "to give absolute immunity only to functions 'intimately associated with the judicial phase of the criminal process." 55 The court stressed that the distinction between an officer obtaining an arrest warrant having qualified immunity and a prosecutor having absolute immunity was not out of disrespect for officers, "but because any lesser degree of immunity could impair the judicial process itself." For example, less than absolute immunity could cause a prosecutor to second guess each step of the trial and interfere with his judgment.56
However, the officer does have qualified immunity and only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost. 57
The Court noted:
- Qualified immunity ... provides ample protection to all but the plainly incompetent or those who knowingly violate the law .... Officers will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized. 58
Similarly, if officers make an arrest based upon a valid warrant, they are immune from Section 1983 liability unless aware of a defect in the warrant. In Johnson v. Miller,59 the officer executed a warrant that did not fit the description of the person arrested. The court noted, "if an arrest warrant is valid on its face, its execution against the person named in the warrant does not violate the Fourth Amendment even if, because someone has made a mistake, the person named in the warrant is not the person whom the authorities intended to arrest." The court cautioned that merely having a warrant will not shield an officer if it can be established that he procured the warrant knowing it to be based on mistaken identity, in an effort to deprive a person of liberty or property. 60
In Betker v. Gomez, 61 Milwaukee police task force officers executed a no knock warrant on the Betker's home on the basis of a tip by Sharon Betker's estranged sister that Sharon was a convicted felon in possession of firearms. Richard Betker was shot during entry into the home by police. In their lawsuit the Bekters alleged Gomez obtained the warrant by including false and misleading information in the affidavit for the warrant.62
Gomez filed a motion for summary judgment based on qualified immunity which was denied by the court on the basis that a reasonable jury could find that officer Gomez "knowingly or with reckless disregard for the truth made false and misleading statements to obtain a warrant that would not otherwise have been issued. The court noted that a warrant violates the Fourth Amendment if the officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements to obtain the warrant and the false statements were necessary to the determination that a warrant should issue. 63
d. Failure to Enforce Laws
An increasing area of litigation has involved allegations that law enforcement officers have failed to enforce the laws or have failed to protect a person from harm. Claims alleging failure to protect, with rare exception, have been rejected under Section 1983. DeShaney v. Winnebago County Department of Social Service 64 involved a claim by the mother of a child who was severely beaten by his father. The mother filed a Section 1983 action against the Social Workers and local officials claiming they ignored numerous complaints that the child was being abused by his father. 65 The father eventually beat the 4 year old so badly that he suffered brain damage and will spend the rest of his life confined to an institution for the retarded.66
It was undisputed that Social Services had ample evidence of abuse and yet did nothing. The court held that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." 67 The Constitution forbids the State itself from depriving an individual of life, liberty or property without due process. The Constitution places no "affirmative obligation on the State to ensure that those interests do not come to harm through other means."
In Tucker v. Callahan, 68 the plaintiff was severely beaten in the parking lot of a bar while the defendant police officer sat in his car watching thirty yards away. It was further alleged that the defendant knew the assailant was prone to violence because he had been arrested on prior occasions for fighting. After the fight, the defendant told the plaintiff's friends to move him out of the lot. It was claimed that by requiring plaintiff be moved, rather than requesting medical assistance, the officer contributed to plaintiff's injury.
The court held that the officer could not be held liable under Section 1983 for failing to intervene and stop the beating, or for failing to call medical assistance. The court reasoned that "in neither case did the State act or cause the injury of which plaintiff complains. However, the court noted that the officer's conduct in ordering plaintiff's companions to move him may rise to the level of a constitutional violation if his conduct was deemed to be reckless, rather than negligent. 69 Once the officer took the affirmative action of having plaintiff moved, he was no longer merely failing to intervene.70
In Brown v. Reyes,71 the court held there was no liability for inadequate monitoring of Collier, a convicted sex offender, who was on probation and sexually assaulted a young girl (DP). The allegations were that Reyes, the Acting chief Probation Officer of Cook County, inadequately monitored a convicted sex offender while on probation by not noticing he was violating curfew and computer use restrictions. The offender was able to contact DP by the internet, obtained her address and broke into her home and sexually abused her.
A constitutional duty to protect will only be triggered where the state affirmatively creates a dangerous situation. Negligently failing to react to a potentially dangerous situation or sitting idly by is not sufficient for state liability. The court concluded that the probation department's failure to respond to a danger posed by Collier does not constitute an affirmative act by Reyes or the probation department that put the DP in danger, such as leaving her in the same area as Collier or giving Collier DP's address. The most that can be said is that they stood by and did nothing when circumstances dictated a more active role.72
- Excessive Use of Force
- Police Officer Liability