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.