Civil Liability Issues: An Exercise in Core Constitutional Principles New Police Attorneys’ School...
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Transcript of Civil Liability Issues: An Exercise in Core Constitutional Principles New Police Attorneys’ School...
Civil Liability Issues:An Exercise in Core Constitutional PrinciplesNew Police Attorneys’ SchoolLegal Officers’ SectionIACP 2003Mark NewboldDeputy City Attorney-PoliceCharlotte-Mecklenburg Police Department
Plaintiff’s Group
Identify potential plaintiffs Identify potential federal cause(s) of
action Identify defendant(s)
Defendant’s Group
What steps would you take to prepare for potential litigation?
Identify Core Constitutional Issues.
1st Amendment
“Congress shall make no law . . . Abridging the freedom of speech; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”
4th 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 and affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
14th Amendment Due Process
. . . “nor shall any state deprive any person of life, liberty, or property . . .” Procedural Due Process Substantive Due Process
Core Constitutional Principles
Freedom of Expression “Free trade of ideas”
Security in persons, housespapers and effects
Freedom From Arbitrary Governmental Action
1st
4th14th
Legitimate Governmental Interests1st
Reasonable TimePlace andManner
14th Due Process
4th
Reasonable Search and Seizure
Fourth Amendment Analysis
Is there a Seizure ? [B]y means of physical force or show of authority . .
. in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16(1968)
Officer terminates freedom of movement through means intentionally applied. Brower v. Inyo, 109 S.Ct. 1378 (1989); or
Person submits to a show of authority.
Fourth Amendment Analysis
If seized, then may force be used? “The right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Terry v. Ohio, 88 S.Ct. 1868, (1968).
Fourth Amendment Analysis
What is the degree (level or amount) of force that may be used? Force must be objectively reasonable. Its
use is not capable of precise definition or mechanical application.
What is the severity of the crime? Does the suspect pose an immediate threat
to the safety of the officers or others? Is the suspect actively resisting arrest or
attempting to evade arrest by flight?
Use of Force/Analysis/4th “Reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene rather than with the 20-20 vision of hindsight.”
“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.”
Federal Case Law - 4TH Amendment
Tennessee v. Garner, 105 S. Ct. 1694 (1985) Fleeing felon/deadly force rule
“Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”
14th Amendment-Due Process
. “nor shall any state deprive any person of life, liberty, or property . . .”without due process of law.
Use of Force 14th Amendment
Due Process Clause Prohibits arbitrary governmental
deprivations of life liberty and property without due process.
Prevents governmental officials from abusing their power, or employing it as an instrument of oppression.
14th Amendment Use of Force
When does it attach?
Search and Seizure
4th 14th Amendment
Non-Seizure14th Amendment
Post-Seizure8th
No cruel and unusual punishment
Disperse
Attempt to seize
Pursuit
Special RelationshipIn Custody
Created Danger
Use of Force 14th Amendment
Shocks the Conscience Special relationship established by State Danger Created by State
Substantive Due Process “Shocks the Conscience”
“Thus in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may be so fairly said to shock the contemporary conscience” Lewis at 1716 at n.8
14th Amendment
Special Relationship. Restraint on person’s liberty
Assuming control over the person A State's failure to protect an individual
against private violence simply does not constitute a violation of the Due Process Clause. DeShaney v. Winnebago,109 S.Ct. 998(1989).
Danger Creation. State creates the danger that harmed
the individual.
14th Amendment – Danger Creation State created the danger Plaintiff was a member of a limited group States conduct put Plaintiff at a
substantial risk of serious, immediate and proximate harm
State acted recklessly in conscious disregard of that risk
State’s conduct when viewed in total was conscience shocking
1st Amendment
Is the Speech protected? Not all expressive
symbolic speech is protected
True Threat (Virginia v. Black)
IntimidationTrue Threat
Political Speech Plus a little spice
Bradenburg
Political Speech
Threat level
1st Amendment Analysis
True threat (Order to Disperse) Those forms of intimidation designed to
inspire fear of bodily harm. Thus just as a State may regulate only that
obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Virginia at 123 S.Ct. 1536 (2003)
First Amendment - Analysis
Analysis Does the person have a right to be at that
location Public forum?
Public property which has by law or tradition been given the status of a public forum. A place where people have traditionally be allowed to associate and speak for or against certain subjects.
First Amendment - Analysis
If public forum, then is the restriction content based? (Is the restriction triggered by the Speaker’s message or has a crime occurred?)
If the restriction is content based, then the restriction is subject to the highest degree of constitutional scrutiny. (strict scrutiny request)
Restriction will withstand constitutional review only if it was necessary and narrowly tailored to achieve a compelling public interest.
First Amendment - Analysis
Analysis Is restriction content neutral
a content neutral restriction is one that regulates time, place or manner.
The restriction will withstand constitutional review if the implicated measure was narrowly fashioned to further a significant governmental interest, and it leaves open ample alternate channels of communication. (intermediate scrutiny test)
First Amendment - Analysis
Rationally related test If action does not invade any fundamental
right, then governmental restriction survives so long as it is rationally related to the advancement of a legitimate state interest..
Defendants
What steps would you take to prepare for potential litigation
Identify Core Constitutional Issues
Less Lethal/Relationship to Core Constitutional Principles
Use of “less lethal” to Reasonable Seizure Physical force Chemical agents to seize Taser to seize Horses to contain
Use of less lethal to Disperse
Use of Less Lethal / Due Process/First Amendment Verbal Commands Physical Coercion to disperse Chemical Agents to disperse Taser to disperse Physical force to disperse