Law and legal liability

1. Law and legal liability

2. Federal intervention intopolice misconduct • History of police abuse of racial minorities throughout the U.S. • Abused citizens did not get relief from the civil law • “Tort” – wrongful infraction of physical or economic injury • No money to file lawsuits + hostile white juries • Abused citizens did not get relief from the criminal law • Prosecutors refused to file assault charges against police • Hostile white juries refused to convict officers • Ku Klax Klan Act of 1871 authorized the Feds to fight the Klan • Klansmen used the cover of night to invade the homes of black people, harassed blacks and conducted lynchings • This Act was incorporated into Title 42, Section 1983, U.S.C. • First application against police in Monroe v. Pape (1961)

3. 42 USC 1983 – Federal civil action for deprivation of rights • Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State...subjects, or causes to be subjected, any...person 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.... • Cities, agencies, managers and supervisors of accused officers can be held liable under § 1983 if: • The alleged acts were done in accordance with formal policy or a longstanding custom or practice • There is negligent supervision (including lack of rules) • There is negligent training

4. Consider this actual situation... On November 12, 1984, Dethorne Graham, a diabetic, felt the onset of an insulin reaction. A friend drove him to a convenience store to buy orange juice. There were many people in line so Graham hurriedly left and asked to be driven somewhere else. A police officer who observed Graham’s actions became suspicious and stopped the car. Backup officers arrived, rolled Graham over on the sidewalk and cuffed his hands tightly behind his back, ignoring his friend’s pleas to get him some sugar. Another officer said: "I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M. F. but drunk. Lock the S. B. up." Several officers placed Graham face down on the hood of a car. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal. An officer told him to "shut up" and shoved his face down. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham's brought some orange juice, but the officers refused to let him have it. Finally, officers discovered that Graham had done nothing wrong at the convenience store. They drove him home and released him.  Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder. He also claims to have developed a loud ringing in his right ear. District and Appeals courts threw out Graham’s lawsuit against the police. What did the Supreme Court decide? Why?

5. GRAHAM v. CONNOR, 490 U.S. 386 (US Supreme Court, 1989) • Section 1983 violations must be examined not according to a single standard but in light of the specific Constitutional right that was allegedly infringed. • Excessive force is a Fourth Amendment claim. Whether excessive force was used must be evaluated by the Fourth Amendment's "reasonableness" standard. • The “reasonableness” standard requires one to determine whether the officers' actions are "objectively reasonable" in light of the facts and circumstances at the time. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

6. Fourth amendment • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

7. Consider this actual situation... • Two deputies were parked in separate cars when a motorcycle approached at high speed. It was operated by 18-year-old Brian Willard and carried Philip Lewis, a 16-year-old, as a passenger. • The deputies turned on their overhead rotating lights and tried to pen the motorcycle in between their cars. Instead of pulling over in response to the deputies’ warning lights and commands, the motorcycle driver slowly maneuvered between the two police cars and sped off. One deputy began pursuit at high speed, using red lights and siren. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off of the road. The motorcycle and patrol car reached speeds up to 100 miles an hour. The patrol car followed from a distance as short as 100 feet; at that speed, his car would have required 650 feet to stop. • The chase ended after the motorcycle tipped over. The patrol car skidded into the passenger at 40 miles an hour, propelling him some 70 feet down the road and inflicting massive injuries. Lewis was pronounced dead at the scene. What did the Supreme Court decide? Why?

8. Fourteenth Amendment • Section 1...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

9. COUNTY OF SACRAMENTO v. LEWIS, no. 96-1337 (US Supreme Court, 1998) • “The issue in this case is whether a police officer violates the Fourteenth Amendment’s guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. We answer no, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” • Calif. Vehicle code, Sec. 17004: A public employee is not liable for damages resulting from the operation of an emergency vehicle while responding to an emergency call or while in pursuit of a suspected violator.

10. Officers arrived to serve a search warrant for records at a private business with six employees. These employees were “corralled” in the business waiting room. They were told they were not under arrest but that they would be held in the waiting room until they submitted to individual interviews with police investigators. • Officers prevented the plaintiffs from leaving the waiting room, from going to the restroom unattended, from retrieving their personal possessions, from making telephone calls, and from answering the office telephone. • Officers detained the plaintiffs in this fashion from one hour and forty-five minutes to four hours and forty-five minutes. They released the employees only after the plaintiffs submitted to taped interrogations. • When one employee declined to make a statement she was detained for another two and a half hours in the waiting room. After concluding she would not be released, the employee made a statement. • Four children, present to attend the office Christmas party, were also detained and their parents were refused permission to call their spouses to have the children picked up. children. After 45 minutes the children were allowed to leave with the adult daughter of one of the employees.

11. Ganwich v. Knapp, no. 01-35677 (9th. Circuit, 2003) “When law enforcement officers investigate an organization suspected of criminal wrongdoing, they may not ignore the civil rights of the organization’s employees. Although officers are entitled to act vigorously to gain information and to prevent the flight of the culpable, our Constitution requires that officers heed employees’ rights in the process. This appeal raises such issues. We must decide whether law enforcement officers violated employees’ Fourth Amendment rights by detaining them incommunicado without probable cause and using the threat of continued detention to coerce them to submit to interrogations. Considering the facts in the light most favorable to the employees,we hold that the officers violated the employees’ clearly established Fourth Amendment rights.”

12. Sec. 1983 and “qualified immunity” • In deciding whether to allow a sec. 1983 lawsuit to move forward, a Federal District court must find that, “in a light most favorable to the plaintiff”, a Constitutional right was violated • If this finding is made, the doctrine of “qualified immunity” comes to bear: (a) Under Saucier v. Katz (2001) officers were not liable if their actions did not violate a clearly established law or constitutional right of which a reasonably well-trained officer would have known AND their actions would have been objectively reasonable to another reasonably well-trained officer facing the same circumstances. (b) In Pearson v. Callahan (2009) the Supreme Court ruled that the Saucier rule was too inflexible. Judges may still use it if they choose.

13. Persons protesting cutting of trees trespassed on lumber company property and chained themselves together using “black bears” – devices that must be cut with power tools. Deputies warned protestors they would user pepper spray. Two protestors released themselves from the "black bears" and two refused. An officer then applied pepper spray with a Q-tip to the corners of the closed eyes of the protestors who remained in the "black bears." Despite the protestors' pleas for water to flush the pepper spray out of their eyes, one of the officers can be heard on videotape saying that they will only be given water if they release and that the pain will only get worse in thirty seconds when he sprays pepper spray in their faces. A minute later, the officer sprayed pepper spray directly into both of the protestors' faces in short full bursts from inches away. Five minutes later, the protestors again refused to release. Thereafter, officers sprayed water from hand-held spray bottles into the protestors' faces and used an electric grinder to cut the protestors out of the "black bears." No pain or injury was inflicted by the grinder.

14. Qualified Immunity examples under Saucier Click here for a more complete list

15. Recent U.S. Supreme Court decisions • Brosseau v. Haugen (03-1261, 12/13/04): Officer who acts in a "reasonable misapprehension" of Constitutional law is shielded by qualified immunity.  In this case an officer shot a fleeing suspect in the back because she thought his vehicle might endanger nearby officers who were on foot. This particular action, although wrong, was not a "clearly established" use of excessive force. • Hope v. Pelzer (01-309, 6/27/02):  When a practice is obviously cruel (using a hitching post to punish prisoners) there is no qualified immunity, as there is inherent notice that the conduct is unconstitutional.

16. Recent 9th. Circuit decisions • Blanford v. Sacramento County (no. 03-17146, 5/6/05): Shooting and crippling a man armed with a 2 1/2 foot sword who refused to drop the weapon and tried to break into someone else’s home, which may or may not have been occupied, was not a clearly established Constitutional violation and was objectively reasonable. • Baldwin v. Placer County (no. 04-15848, 4/19/05): No qualified immunity for officers who executed a search warrant because: (a) officers burst in without notice, with guns drawn, when it was clearly unnecessary, and (b) affidavit was partly based on falsified information. • San Jose Hells Angels v. City of San Jose (no. 02-16329, 4/4/05):  No qualified immunity for officers who seized truckloads of personal property to show that Hells Angels had "common symbols" (qualifying it as a street gang), as a reasonable officer would have known that doing so violated the Fourth Amendment. Same for shooting two dogs – no exigent circumstances & officers had a week to plan the search. • Motley v. Parks (no. 02-56648, 9/21/04): No qualified immunity for officers who conducted a parole search without notifying the parole agent or bothering to check the parolee’s status (the parolee was actually in custody at the time).

17. Johnson v. City of Sequim (no. 03-35057, 08/31/04): Chief of Police arrested a person who refused to stop videotaping him in a public place. No qualified immunity because taping is a clearly established Constitutional right. • Boyd v. Benton County (no. 02-35776, 6/28/04):  In this case, using flash-bangs was considered excessive force. However, officers had qualified immunity because (a) law on the use of flash-bangs was not clearly established and (b) a reasonable officer would not necessarily view their use in this case as a Constitutional violation. • Headwaters v. Humboldt County (no. 98-17250, 1/11/02):  No qualified immunity for officers who dabbed pepper spray in the eyelids of a protester, then refused to wash it out, as a a reasonable officer would know that doing so was Constitutionally excessive.