Major Crime Assistance Team Seminar, Police Liability & Defenses Under State & Federal Law, February 20, 2014 By Robert H. Hanaford (part 3)

1 The Civil Rights Act is found in 42 U.S.C., Sections 1981 - 1986. The Act was passed in 1871 to combat abuses against racial minorities. Sections 1981and 1982 deal exclusively with racial discrimination. Sections 1985 and 1986 are restricted to conspiracies to violate a person's rights because of race.

2 Brown v. Reyes, 815 F.Supp. 2nd 2018 (N.D. IL. 2011).

3 Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L Ed.2d 492 (1961).

4 Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct.2018, 56 L. Ed.2d 611 (1978). Local governments were intended to be included among the "persons" to which Section 1983 applies.

5 Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985).

6 Hunter v. Bryant, 502 U.S.224, 227, 112 S.Ct. 534 (1991).

7 Saucier v. Katz, 533 U.S.194, 227, 121 S.Ct. 2151 (2001). Overruled in part by Pearson v. Callahan, 555 U.S.194, 223, 129 S.Ct. 808 (2009), holding that the two factors in the Saucier qualified immunity analysis were factors to considered and not required findings.

8 457 US 800, 402 S.Ct. 2727 (1982).

9 555 U.S. 223, 129 S.Ct. 808 (2009).

10 Id at 231.

11 Id.

12 Daniels v. Williams, 106 S.Ct. 662 (1986).

13 Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L. Ed. 183 (1952).

14 For instance, the Eighth Amendment has been implicated where there is a deliberate indifference to a prisoner who is seriously ill or injured.

15 Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d (1981).

16 The objective standard considers what a reasonable officer would do under similar circumstances. The particular officer's subjective view is not relevant to a finding that there was excessive force.

17 In Harlow v. Fitzgerald, 457 U.S. 800, 402 S.Ct. 2727 (1982).

18 109 S.Ct. 1865 (1989)

19 Id at 1867-68.

20 Id at 1871. The Supreme Court in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)l applied the Fourth Amendment reasonableness standard in the context of the use of deadly force. The court held that the reasonableness of a particular seizure depends upon both when it is made and how it is carried out.

21 Id at 1872.

22 Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694 (1985).

23 Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013).

24 Id.

25 855 F.2d 1271 (7th Cir. 1988).

26 Id at 1275.

27 Id at 1276. The court refused to impose a requirement that warning shot be fired.

28 702 F.3d 388 (7th Cir. 2012).

29 Id at 404. Quoting, Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808 (2009).

30 Id.

31 Id at 405-406.

32 Id.

33 Id at 410.

34 Id.

35 957 F.2d 1268 (5th Cir.1992).

36 948 F2d 808 (1st Cir.1991).

37 946 F.2d 511 (7th Cir.1991).

38 705 F.3d 706 (7th Cir. 2013).

39 Id at 732.

40 Restrictive Policies for High-Speed Police Pursuits, U.S. Department of Justice, Institute for Law and Justice, 1990.

41 550 U.S. 372, 127 S.Ct. 1769 (2007)

42 Id at 375

43 780 F.Supp.635 (ED Mo. 1991).

44 107 S.Ct. 3034 (1987).

45 Id at 3038. A warrantless search of a dwelling is proper if there is probably cause and exigent circumstances that make obtaining a warrant impractical.

46 Id at 3038-39. In the criminal context, a violation of the Fourth Amendment may result in evidence being excluded under the exclusionary rule. However, it does not necessarily follow that the officer will be subject to civil liability.

47 Id at 3040.

48 705 F.3d 706 (7th Cir. 2013).

49 Id at 714.

50 Id at 717-718.

51 Id.

52 106 S.Ct. 1092.

53 Id at 1094-95. Plaintiffs, husband and wife, were prominent members of their community. Defendant was a Rhode Island State Police Officer. The officer came upon information through a wire tape that he included in an affidavit for an arrest warrant. The wire tape was of an acquaintance of plaintiff's daughter. Namely, the officer heard an unknown person speaking generally about a party where he said, among other things, "he could not believe [he] was token in front of [plaintiff]". Id at 1094.

54 Id at 337.

55 Id at 342. Citing, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976), holding absolute immunity for prosecutors.

56 Id at 343.

57 Id at 1095.

58 Id at 1098. The court's rationale in rejecting defendant's absolute immunity argument was that an officer should be accountable for his actions in obtaining a warrant and it is possible that a judge or magistrate may erroneously approve a warrant application because of a heavy docket. Id at 1099.

59 Id at 10-96.

60 682 F2d 39 (7th Cir. 1982).

61 692 F.3d 854 (7th Cir. 2012).

62 Id at 860-861. It was alleged that Gomes falsely stated that the witness within the last 5 days observed Sharon with a hand gun in her home. The witness testified, however, that she did not make the statement and had not been in the Betker home since 2001.

63 Id at 860.

64 See Also, Dockett v. Cedar Park, 950 F2d 272 (5th Cir. 1992). Officers were granted qualified immunity where the arrest was based on a facially valid warrant that had been recalled. The arrestee and his mother both told the officers that the warrant was no longer valid. The officers nonetheless arrested and locked up plaintiff. The officers were not liable under Section 1983 because they checked the warrant and plaintiff was immediately released when the fact of recall was confirmed.

65 109 S.Ct. 998 (1989).

66 Id at 1001-02. The child's parents were divorced and the father was awarded custody. The father's second wife complained to officials that the child was being abused. Social Services investigated but did not pursue the claim. Social Services again investigated after several hospitalizations of the child for suspicious injuries. Social Services merely returned the child to his father who refused subsequent visits from social workers on the basis that the child was alway too ill.

67 Id.

68 Id at 1003. An exception to the no duty to protect rule is if a special relationship exists. For example, prisoners are dependent on the state for at least a minimal level of protection. Similarly, state mental patients are dependent upon the state to provide reasonable protection. DeShaney does not foreclose the possibility of liability under State Tort Law, but applies only to claims for deprivation of constitutional rights.

69 867 F.2d 909 (6th Cir. 1989).

70 Id at 914.

71 815 F.Supp.2nd 1018 (N.D.IL. 2011).

72 Id at 1024-1025.

73 Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005); Yang v. Hardin, 37 F.3d 588; Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972).

74 37 F.3d 588.

75 Id at 283-84.

76 Id at 284-85.

77 423 F.3d 763 (7th Cir. 2005)

78 Id at 764-765.

79 Id at 767.

80 Id at 774-775.

81Id at 768.

82 Id at 774.

83 Id.

84 The officer's conduct should be examined under the objective reasonableness standard in Graham v. Connor.

85 946 F2d 630 (9th Cir. 1991).

86 Jesse Larez was thrown across the room, grabbed by the hair, hand cuffed, thrown face first to the ground and was kicked and kneed in the back. Plaintiff received a broken nose, required surgery on both knees and was advised to have surgery on his neck to alleviate headaches.

87 Id at 646.

88 Id. In Larez, the chief admittedly condoned the practice of the subordinates. There was also a custom and practice of similar instances. Id at 646-47. It was show shown, that the chief failed to discipline for excessive use of force and citizen complaints were not investigated by a separate division.

89 Monell v. Dept. of Soc. Serv. of City of N. Y., 436 U.S. 658 98 S.Ct. 2018, 56 L Ed.2d 611 (1978).

90 475 U.S. 469, 106 S.Ct. 1292, (1986).

91 The doctor was under investigation for welfare fraud, for which he was acquitted. The doctor refused entry to the deputies and the county prosecutor told the deputies to go in and get the employees.

92 Id at 1300.

93 471 U.S. 808, 105 S.Ct. 2427 (1985).

94 The police officer responded to a call of a robbery in progress at a bar. Upon arrival, the officer confronted Tuttle and told him not to leave the bar. Tuttle ran out the door. Outside the officer saw Tuttle squatting with his hands by his boot. When Tuttle stood up, the officer shot and killed him, a toy pistol was found in his boot.

95 Id at 2436.

96 109 S.Ct. 1197 (1989).

97 Id at 1204.

98 Id at 1206.

99 Id at 1206-07. See, Manarite v. City of Springfield, 957 F.2d 953 (1st. Cir. 1992). Police chief was not liable for failing to implement suicide prevention program where inmate hanged self with his shoe laces. City's failure to train was not "deliberate indifference."

100 745 ILCS 10/1-101 through 10/9-701.

101 745 ILCS 10/2-109.

102 745 ILCS 10/2-202.

103 745 ILCS 10/1-210.

104 112 Ill.2d 211, 97 Ill.Dec. 419, 492, N.E.2d 1292 (1986).

105 Id at 220.

106 Id at 221.

107 Id

108 108 Ill.2d 429, 92 Ill.Dec. 231, 484 N.E.2d 1086(1985).

109 Id at 1088.

110 145 Ill.2d 273, 164 Ill.Dec. 571, 583 N.E.2d 487 (1991).

111 The defendants argued that police officers are authorized by statute to move or transfer prisoners. Therefore, the officer was enforcing the law.

112 Id at 491. The court also noted that the indemnification provisions of the Municipal Code provide that an officer shall be indemnified while "he is engaged in the performance of his duties as a policeman..., but that the legislature deliberately chose not to employ such broad language in Section 2-202."

113113. 154 Ill.App.3d 498, 107 Ill.Dec.400, 507 N.E.2d 64 (1987).

114 166 Ill.App.3d 848, 117, Ill.Dec. 287, 520 N.E.2d 638 (1987).

115 178 Ill.App.3d 203 (1988).

116 DeSmet v. County of Rock Island, 219 Ill.2d 497, 848 N.E.2d 1030 (2006).

117 Doe v. Village of Schaumburg, 2011 IL App (1st) 093300, 353 Ill.Dec. 99, 955 N.E.2d 566. Claims against the Village and Village Police Department by high school parents and their students for failure to notify school that sex offender was attending classes and offender assaulted students.

118 178 Ill.App.3d 102 (1988).

119 163 Ill.App.3d 725 (1987).

120 49 Ill.App.301 (1977).

121 71 Ill.App.2d 373 (1966).

122 151 Ill.App.3d 170 (1987).

123 161 Ill.App.3d 290 (1987).

124 Ch.38, Section 7-5.

125 Domestic Violence Act, 750 ILCS 60/101 et seq.

126 2013 IL App (1st) 111596 (2013), 984 N.E.2d 74.

127 Id at 81-82.

128 232 Ill.2d 349, 904 N.E.2d 18 (2009).

129 Id at 353-354. The Chiropractor's office was in Palatine so he contacted the Palatine police. Detectives from Palatine went to Wilmette Police where Lacy lived until moving to Glenview. The Glenview Police contacted Lacy and told her she was in immediate danger and requested that she come to the police station.

130 § 305. Limited law enforcement liability. Any act of omission or commission by any law enforcement officer acting in good faith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer, unless the act is a result of willful or wanton misconduct.

750 ILCS 60/305

131 Id at 361

132 Section 2-202 - Public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.

133 Id 363-364. Citing, Fitzpatrick v. City of Chicago, 108 Ill.2d 211, 221, 492 N.E.2d 1292 (1986).

134 Id at 368. The court also noted that in 2005 there were at the time 64,639 orders of protection issued within the State of Illinois and only 38,611 full-time police officers.

135 Id at 265.

136 Fenton v. City of Chicago at 83.

137 118, Ill.App.3d 676, 74 Ill.Dec. 202, 455 N.E.2d 232 (1983).

138 Id at 236.

139 Id.

140 Id.

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