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AUGUST 2017

 

The Types of Federal Civil Claims that can Arise when Police Officers use Force on Mentally Ill or Mentally Disabled Individuals.


By:  Robert C. Lockwood, Esquire

Wilmer & Lee, P.A.

Huntsville, AL

           

This article is a portion of a presentation that was made at the Annual Meeting of the Federation of Defense and Corporate Counsel.  The complete presentation focused upon:  (1) law enforcement training programs which addressed the difficult issues that can arise from interactions between police and the mentally ill; (2) the types of claims that arise from such actions; and, (3) strategies for attorneys defending those claims.  FDCC members Kay Hodge and Jeff Lowe provided excellent discussions on those issues.

 

In preparation for the presentation, a quick Google search revealed a substantial number of news stories in a short period of time dealing with the use of force by law enforcement against the mentally ill:      

  • The Life of Jairon Brown: a Promising Future Beset by Mental Illness, Ended by Police Shooting, The Times-Picayune, April 24, 2017.
  •  Police: Man Killed in Shoot-out Had History of Mental Health Issues, The York Daily Record, April 25, 2017.
  •  Mother of Mentally Ill Man Fatally Shot by Boston Police Demands Justice, The Boston Globe, April 22, 2017.

One of the most-publicized cases involving interaction between mental illness and law enforcement is the Alan Pean case from Houston, Texas.  It was the subject of a New York Times Article (When the Hospital Fires the Bullet, New York Times, February 12, 2106) and an episode of the This American Life Podcast (My Damn Mind, This American Life, February 12, 2016).  In short, two off-duty Houston police officers worked as security guards at a hospital.  In the course of attempting to subdue Mr. Pean, who suffers from bipolar disorder, they shocked him with a tazer, shot him once and handcuffed him.  Mr. Pean filed suit in June 2016, and that case remains pending.

 

When mentally ill individuals are subjected to force at the hands of government actors, they (or their surviving family members) frequently take legal action.  A non-scientific review of case law demonstrates that the overwhelming majority of these cases wind up in federal court.  Certainly, plaintiffs frequently assert state law claims such as negligence, wantonness, assault, and intentional infliction of emotional distress.  But, plaintiffs invariably assert a claim for constitutional violations under 42 U.S.C. § 1983, disability discrimination under the Americans with Disabilities Act, or both statutes.  Presumably, those claims are asserted so frequently because of the ability to obtain attorneys’ fees, which are unavailable in many state law tort claims.  This article focuses on those federal claims.

I.
  42 U.S.C. § 1983


A.  Fourth Amendment Excessive Force


The Fourth Amendment to the United States Constitution provides citizens with the right to be free from

unreasonable searches and seizures, which includes “the right to be free from the use of excessive force in the course of arrest.”  Saunders v. Duke, 766 F.3d 1262, 1266-67 (11th Cir. 2014).  As a result, most cases arising from the interaction of law enforcement and the mentally ill focus upon Fourth Amendment excessive force allegations.1

The use of force is evaluated under an objective reasonableness standard based upon the perspective of a reasonable officer on the scene.  Graham v. Conner, 490 U.S. 386, 396-97 (1989).  “Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of each particular case.’ ” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)(quoting Graham, 490 U.S. at 396).  In Graham, the Supreme Court set out three factors to consider in determining the reasonableness of force: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and, (3) and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396.

 

B.  Does a Plaintiff’s Mental Illness Change the Analysis?

Should a plaintiff with mental illness be treated differently from a “legitimate” criminal? In short, does the

use-of-force analysis change when the plaintiff suffers from diminished capacity?  At the same time, should we require police officers to be sidewalk-psychiatrists responsible for analyzing a perpetrator’s mental state?


Arguments can certainly be made both ways.  Nevertheless, there is a line of cases in which a plaintiff’s mental illness impacted the use-of-force analysis.   The Ninth Circuit Court of Appeals wants to have its cake and eat it too:

This Court has “refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.” ... The Court has, however, “found that even when an emotionally disturbed individual is acting out and inviting officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted ... with a mentally ill individual.”

 

Hughes v. Kisela, 841 F.3d 1081, 1086 (9th Cir. 2016).  The Seventh Circuit is more straightforward:

 

There is a commonsense need to mitigate force when apprehending a non-resisting suspect, particularly when the suspect is known to have diminished capacity. An arrestee may be physically unable to comply with police commands. See Smith, 295 F.3d at 770; see also Cyrus, 624 F.3d at 863 (noting that officer was “aware of [arrestee's] mental illness”); McAllister, 615 F.3d at 883 (finding knowledge of arrestee's diabetic condition relevant to excessive force analysis); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.2004), (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”).

 

Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012).  Even the Fifth Circuit (no bastion of liberalism) has quoted the Ninth Circuit approvingly: “Although we have not had the occasion to consider qualified immunity in the context of the police killing a mentally ill individual, we note that the Ninth Circuit has held ‘the governmental interest in using [deadly] force is diminished by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.”  Meadours v. Ermel, 483 F.3d 417, 423 n.5 (5th Cir. 2007).

                      Of the foregoing cases, the Ninth Circuit’s Hughes opinion comes the closest to requiring sidewalk psychoanalysis.  In that case, police responded to a “check welfare” call regarding a woman reportedly hacking a tree with a large knife.  Hughes, 841 F.3d at 1084.  Upon arrival, they found the woman acting erratically, and ordered her to drop the knife.  The woman ignored those commands and walked towards another, nearby, unarmed woman.  A police officer shot her four times.  In the course of finding the use of force excessive, the Court found that “there were sufficient indications of mental illness to diminish the governmental interest in using deadly force.”  Id. at 1086.

 

                      While mental illness can be taken into account, it cannot be used as an excuse for potentially deadly behavior.  For example, in Hassan v. City of Minneapolis, 489 F.3d 914 (8th Cir. 2007), police officers approached a man walking down the middle of the street with a machete and a tire iron.  As the man walked towards pedestrians, the officers used a taser twice, which was ineffective.  The man began to chase the officers with the machete and they tasered him again to no effect.  Ignoring multiple demands to drop the machete, the man advanced on the officers and hit a police car with the machete.  As he continued to advance waving the machete, the officers shot and killed him.  The representative for the estate argued that the use of force was unreasonable because the officers should have known that he was mentally ill, but that argument was rejected by the Eighth Circuit:

 

Hassan argues the officers should have known Jeilani's behavior indicated he was mentally ill, and thus, their conduct was unreasonable. However, even if Jeilani were mentally ill, Jeilani's mental state does not change the fact he posed a deadly threat to the officers and the public. “Knowledge of a person's disability simply cannot foreclose officers from protecting themselves, the disabled person, and the general public when faced with threatening conduct by the disabled individual.” Sanders, 474 F.3d at 527 (citing Bates ex rel. Johns v. Chesterfield County, Va., 216 F.3d 367, 372 (4th Cir.2000)).

 

Hassan, 489 F.3d at 919.

 

           Courts generally recognize the difficulties faced by officers dealing with the mentally ill:

 

Police officers face tough judgment calls about what to do with the mentally ill. Arrestees do not normally arrive at jail toting their medical records. Psychiatric problems do not always manifest themselves with clarity. And not even clear psychiatric problems always reveal their potential for serious harm—as here a heart attack. Perhaps those truths counsel in favor of more policies and training designed to minimize tragic injuries and deaths like Omar's. And perhaps police would be wise to err on the side of calling a doctor in cases like this one. But the United States Constitution and Ohio law do not elevate any deviation from wise policy into a cognizable lawsuit for money damages against the City or the relevant law enforcement officers.

 

Arrington-Bey v. City of Bedford Heights, No. 16-3317, 2017 WL 729730 at *5 (6th Cir. Feb. 24, 2017).             

 

C.  Qualified Immunity

 

                       The United States Supreme Court’s most-recent decision on qualified immunity demonstrates the hesitancy of the federal courts to second-guess split-second decisions of law enforcement officers.  See White v. Pauly, 137 S.Ct. 548 (2017).  White did not involve a mentally-ill plaintiff.  Nevertheless, it discussed the qualified immunity “of an officer who – having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by the officers – shoots and kills an armed occupant of the house without first giving a warning.”  White, 137 S.Ct. at 549.  The facts indicated that earlier-arriving officers failed to properly identify themselves and warn the victim.  Nevertheless, those alleged errors could not deprive the later-arriving officer of qualified immunity: “No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.”  Id. at 552.

 

                         In the vast majority of cases reviewed in preparation for this article, individual law enforcement officers prevailed in their assertions of qualified immunity.  Probably, this is because qualified immunity poses a substantial challenge to most plaintiffs.  Indeed, qualified immunity “protects all but the plainly incompetent and those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335, 341 (1986).   The familiar analysis for qualified immunity requires a plaintiff to prove: (1) a violation of constitutional rights; and, (2) that the right violated was “clearly established.”  Given the substantial obstacles for overcoming qualified immunity, instead of focusing on “wins” for law enforcement, this presentation will focus on circumstances in which courts have denied summary judgment.

 

                        It appears that the most-frequent basis for denial of qualified immunity is the existence of conflicting facts.  For example, the Fifth Circuit affirmed a denial of summary judgment fairly summarily in Meadours v. Ermel, 483 F.3d 417 (5th Cir. 2007).  In that case, Bob Meadours’ sister called 911 and “made it clear she was seeking mental health assistance for her brother and not reporting a crime.”  Meadours, 483 F3d at 419.  Officers shot Mr. Meadours at least twice with beanbag rounds before he climbed on top of a doghouse, and then advanced on the officers with a screwdriver.  The officers then shot and killed Mr. Meadours.  The Court found that fact issues prevented a legal determination on the question of reasonableness of force: “for example, whether Meadours was first shot while charging at Officer Kominek, or while he was still atop the doghouse, posing no imminent threat.”  Id. at 432.  “The question of when and where Meadours was shot is integral to determining whether the officers’ actions were reasonable, and, consequently we conclude that the dispute is material.”  Id.

 

                        In Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016), James Barnes attended a baptism in the ocean, and while in the water, began flailing, flopping, thrusting his arms and body and yelling loudly about a demon.  The facts thereafter are extremely detailed.  Barnes initially engaged in a struggle with an Officer Tactuk in the water.  Tactuk ultimately handcuffed Barnes in an unorthodox manner with one arm pulled over his head.  He called for assistance and stated that he had a violent, mentally-ill person in custody.  Barnes continued to resist and Tactuk shot pepper spray in his eyes and struck him in the face multiple times.  Office Kenneth Kubler responded and helped to subdue Barnes.  In the course of doing so, Kubler used his taser five times.  Barnes died from complications of asphyxia with contributory conditions of blunt trauma and restraint.  The Eleventh Circuit affirmed the denial of qualified immunity for Officer Kubler on the grounds that “gratuitous use of force when a criminal suspect is not resisting constitutes excessive force.”  Wate, 839 F.3d at 1021.  Here are the facts relied upon by the Court to support that conclusion:


Construing the evidence in favor of Plaintiff, the unambiguous facts are that Barnes was no longer resisting at least after the first two tasings, and that Kubler's further use of the Taser was wholly unnecessary, and grossly disproportionate to the circumstances. Kubler had arrived on the scene six and a half minutes earlier, found Barnes bleeding from the face and observed Tactuk striking Barnes multiple times. The two officers immobilized Barnes face down on the sand. Barnes had no weapon and was awkwardly handcuffed, which, drawing inferences from the facts in a light favorable to Plaintiff, had a greater than normal effect of further neutralizing Barnes. The record establishes that while the first or maybe even the second Taser deployment may have been warranted, there is competent unambiguous evidence that by the third tasing, Barnes was handcuffed, immobile and still, such that a reasonable officer in Kubler's position would conclude that Barnes did not present a risk of flight, or a threat of danger to the officers or to the public. Under these circumstances, further shocks were unnecessary and grossly disproportionate, and a jury could find that Kubler's use of a Taser on Barnes five times was unreasonable force.

 

 Id.  The Court further found that Barnes’s right was clearly established because “[a] reasonable officer in Kubler’s position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”  Id.

 

                      Another interesting case dealing with excessive force is Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015).  In that case, Christopher Weiland’s father made a “Baker Act” call to police, and informed the deputies that his son was bipolar, “acting up,” “on drugs,” and “probably had a gun.”  The complaint alleged:

Fleming and Johnson, guns drawn, approached the bedroom without calling out or identifying themselves. The deputies “came upon [Weiland] sitting on the edge of a bed looking down at a shotgun that lay loosely in his lap.” Suddenly and without warning, Johnson fired two rounds at Weiland, knocking him off the bed.  As Weiland lay on the floor bleeding and critically injured, Fleming tasered him. Then both Johnson and Fleming “physically beat and assault[ed] [Weiland] before finally handcuffing one of his hands to a dresser.” At no point did Weiland raise the shotgun from his lap or point it at the deputies.


Weiland, 792 F.3d at 1317.  Weiland is not a qualified immunity case.  Instead, the trial court dismissed based upon a failure to state a claim upon which relied can be granted.  A large part of the Weiland opinion chastises the plaintiff for shotgun pleading, and it appears that poor pleading was probably the underlying reason for dismissal.  Nevertheless, the Eleventh Circuit reversed dismissal, finding that the complaint asserted sufficient facts to state a claim for excessive force.

In Hobart v. Estrada, 582 Fed. App’x 348 (5th Cir. 2014), the Fifth Circuit reversed a summary judgment

based on qualified immunity where a mentally ill teenager was killed after his parents sought assistance in transporting him to the hospital.  In Hobart, Officer Jesus Estrada arrived at the scene before the Houston Crisis Intervention Team – which is trained on mental illness and tactics to verbally de-escalate situations involving persons with serious mental illness.  Rather than waiting for the CIT, Officer Estrada entered the house and spoke with the mother.  The trial court denied summary judgment on the basis of qualified immunity and the Fifth Circuit affirmed, based upon the mother’s version of the facts:

Accordingly, if a jury were to credit Mrs. Hobart's testimony, it could reasonably conclude that Officer Estrada faced only minor physical contact from Aaron, and that such contact ended and the two men were separated for multiple seconds prior to Officer Estrada pulling out his gun and shooting Aaron approximately six times. Under that factual scenario, Officer Estrada would lack probable cause to believe that Aaron posed a significant threat of death or serious physical injury to Officer Estrada or to others, and shooting Aaron in the manner that he did would be clearly excessive and unreasonable.

Hobart, 582 Fed. Ap’x at 355.  The Court further rejected an argument regarding Estrada’s subjective mental state: “As the district court noted, regardless of whether an officer’s mental state caused him to panic such that he unreasonably determined that a threat was present, that would not render his determination reasonable.”  Id.

                      The Sixth Circuit focused on the fact-intensive nature of the excessive force analysis in affirming denial of qualified immunity in Hanson v. City of Fairview Park, 349 Fed. Ap’x 70 (6th Cir. 2009).  In that case, Scott Hanson had a history of mental illness and stopped taking his medications.  Police officers responded to a complaint that Hanson was “out of control” and “trashing his house.”  Officer John Brewer found a car driven through the garage door and observed Hanson in his garage “walking back and forth like he’s agitated,” and with two golf clubs “beating something like a workbench.”  Brewer claimed that he called out to Hanson, who “charged” toward him, walking “briskly” with two golf clubs in his hands.  Brewer claimed that Hanson raised the golf clubs above his head and said: “I’m coming for you.”  Brewer claimed that he was unable to retreat because of the crashed car.  So, he fired his weapon and killed Hanson.  But, witnesses disputed whether Hanson raised the golf clubs The trial court denied summary judgment, finding fact issues of “whether Mr. Hanson had anything in his hands, whether Mr. Hanson was advancing when he was shot, and whether Officer Brewer was penned in by the PT Cruiser ....”  Hanson, 349 Fed. Ap’x at 73.  The Sixth Circuit agreed with that analysis:

While we agree that Officer Brewer's conduct was reasonable if the deceased was threatening Officer Brewer with raised golf clubs, if the deceased was threatening him but had lowered the clubs, the justification given by the officer may be no longer available. The reasonableness of defendant's conduct would then be a different question, and we do not have defendant's testimony to support the assertion that, given that factual scenario, shooting the decedent would be a reasonable response. If the deceased had no weapon in his hand, the immediate threat would be less and some lesser use of force might have been reasonable.

Id. at 76.

                     In Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), the court focused on fact issues regarding an officer’s conduct immediately prior to the use of force.  Lieutenant Donald Smith responded to a call that Terry Allen was sitting in his car threatening suicide.  When he arrived, Mr. Allen was sitting in the driver’s seat with one foot out of the vehicle and a gun in his right hand on the console between seats.  Lt. Smith repeatedly told Allen to drop the gun.  He then tried to reach into the car and grab the gun while an Officer Bentley held Allen’s left arm and an Officer Farmer attempted to enter the car on the passenger side.  Mr. Allen reacted by pointing the gun at the officers.  Shots were exchanged and Allen was killed.  In considering the reasonableness of force, the Tenth Circuit will consider the “officer’s conduct prior to the suspect’s threat of force if the conduct is ‘immediately connected’ to the suspect’s threat of force.”  Allen, 119 F.3d at 840.  Without explicitly saying so, the Tenth Circuit essentially found that an officer’s use of force might not be reasonable if the officer provoked the victim’s threat of force.  In the Allen case, there was evidence that Lt. Smith “ran ‘screaming up to Mr. Allen’s car and immediately began shouting at Mr. Allen to get out of his car....” Id. at 841.  Because of those facts, the Tenth Circuit reversed summary judgment on qualified immunity: “Clearly, the officers’ preceding actions were so ‘immediately connected’ to Mr. Allen’s threat of force that they should be included in the reasonableness inquiry.  The differences in eyewitness testimony regarding the officers’ approach are therefore material factual disputes.”  Id.

                    Our newest Supreme Court Justice participated in a decision from the Tenth Circuit Court of Appeals last year.  Perea v. Baca, 817 F.3d 1198 (10th Cir. 2016).  In that case, Officers David Baca and Andrew Jarmillo were called to perform a “welfare check” on Jerry Perea, because his mother stated that he was on “very bad drugs” and she was afraid of what he might do.  The officers located Perea on his bicycle, and Officer Jaramillo pushed Perea off the bicycle.  They did not tell Perea why they were following him or why he was being seized, and they never asked Perea to halt or stop.  Perea struggled and Jaramillo ultimately tasered him ten times in less than two minutes.  While waiting for an ambulance, Perea stopped breathing and died.  The Court found that the Graham factors weighed against a finding of objective reasonableness.  Because they were merely performing a welfare check and not looking for Perea as a criminal suspect, the first factor (severity of the crime) weighed “heavily against the use of anything more than minimal force.”  Perea, 817 F.3d at 1202.  “Repeated use of the taser exceeded the minimal force that would be proportional to Perea’s crime.”  Id. at 1203.  The second factor (immediacy of the threat to officers or others) weighed against the officer because Perea was not “a danger to anyone other than himself before they attempted to affect the arrest.”  Id.  The final factor, whether Perea resisted arrest, weighed in favor of some use of force, but the “relevant inquiry” was “whether the taser use was reasonable and proportionate given Perea’s resistance.”  Id.

Even if Perea initially posed a threat to the officer that justified tasering him, the justification disappeared when Perea was under the officers’ control.  It is not reasonable for an officer to repeatedly use a taser against a subdued arrestee they know to be mentally ill, whose crime is minor, and who poses no threat to the officers or others.

Id. at 1204.  After finding the use of force excessive, the Court quickly dispensed with the “clearly established” analysis:

It is – and was at the time of Perea’s death – clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. .... More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued.

Id.

 D.        Municipal Liability for Failure to Train

                      Individual law enforcement officers are not the only parties at risk arising from a use of force against the mentally ill.  Plaintiffs also seek to hold municipalities liable for failure to adequately train officers on how to deal with the mentally ill.  Yet again, federal law makes it very difficult for failure to train claims to succeed.   The Supreme Court has recognized that a city’s culpability “is at its most tenuous where a claim turns on failure to train.”  Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). The first hurdle to municipal liability is the underlying claim itself.  If the plaintiff cannot demonstrate a constitutional violation by law enforcement, he/she has no claim for failure to train.  “[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”  City of Canton v. Harris, 489 U.S. 378, 388 (1989)  “Deliberate indifference can be established in two ways: by showing a widespread pattern of similar constitutional violations by untrained employees or by showing that the need for training was so obvious that a municipality’s failure to train its employees would result in a constitutional violation.”  Mingo v. City of Mobile, 502 Fed. Appx. 793, 799-800 (11th Cir. 2014).

 

                      Plaintiffs can rarely provide sufficient evidence to meet the “deliberate indifference” standard.2   So, again, rather than focusing on municipal “wins,” which are voluminous, this article will review cases that were allowed to proceed against municipalities for failure to train.   In Allen v. Muskogee (discussed above), the Tenth Circuit not only denied qualified immunity, but also found sufficient evidence to require a trial on failure to train.  In that case, the Muskogee Police Department training coordinator testified that “officers acted in accordance with their training in approaching the car and trying to take away the gun.”  Allen, 119 F.3d at 843.  The plaintiff countered with expert testimony establishing that such training was “wrong and out of sync with the rest of the country in the police profession.”  Id.  Thus, the court concluded “[w]hen viewed in the light most favorable to the plaintiff, the record contains evidence that the officers were trained to act recklessly in a manner that created a high risk of death.  The evidence is sufficient to support an inference that the need for different training was so obvious and the inadequacy so likely to result in violation of constitutional rights that the policymakers of the City could reasonably be said to have been deliberately indifferent to the need.”  Id. at 844.

The case before us is within the “narrow range of circumstances” recognized by Canton and left intact by Brown, under which a single violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. The likelihood that officers will frequently have to deal with armed emotionally upset persons, and the predictability that officers trained to leave cover, approach, and attempt to disarm such persons will provoke a violent response, could justify a finding that the City's failure to properly train its officers reflected deliberate indifference to the obvious consequence of the City's choice. The likelihood of a violent response to this type of police action also may support an inference of causation—that the City's indifference led directly to the very consequence that was so predictable.

Id. at 845.

 

                      In Olsen v. Layton Hills Mall, 312 F.3d 1304, 1310 (10th Cir. 2002), Carl Kipp Olsen was arrested and transported to the Davis County Jail.  He told prebooking officers that he suffered from Obsessive Compulsive Disorder (“OCD”) and required medication to prevent panic attacks.  The officers took his medication from him and insisted that he remove his shoes and socks.  Mr. Olsen “recoiled” at the request and suffered a panic attack after acceding to the demand.  The Davis County Jail did not provide any training for handling individuals with OCD.  The Tenth Circuit found that Olsen provided sufficient facts to support deliberate indifference – primarily because of the prevalence of that condition: “It hardly bears repeating, but OCD does not rival Halley’s comet in its infrequency of appearance.  OCD occurs in more than two percent of the population .... Although a jury shall decide exactly to what extent it has burst into the mainstream, one could hardly deem it an obscure disorder.”  Olsen, 312 F.3d at 1319.


Given the frequency of the disorder, Davis County's scant procedures on dealing with mental illness and the prebooking officers' apparent ignorance to his requests for medication, a violation of federal rights is quite possibly a “ ‘plainly obvious' consequence” of Davis County's failure to train its prebooking officers to address the symptoms. Barney,143 F.3d at 1307 (internal citations omitted). And this is for a jury to decide. That OCD is relatively common and that the county had procedures in place for dealing with inmates with psychiatric disorders suggest that the municipality may have had constructive notice of the illness' prevalence and consequences. Accordingly, Appellant has raised a genuine issue of material fact as to whether the county had notice of and was deliberately indifferent in its failure to train prebooking officers on OCD.

Olsen, 312 F.3d at 1320.

 

                      A final interesting case is Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).  In that case, officers received a complaint that a man was running around naked.  They found him on an exterior landing of an apartment building, jumping up and down, yelling and kicking his legs in the air.  The officers persuaded him to come down the steps, but when he tried to walk past them, a struggle ensued.  In restraining Cruz, the officers used a “hog tie” restraint.  Cruz later died, arguably as a result of his position on the ground while restrained.  The Tenth Circuit found that use of a “hog tie” restraint was unconstitutional when used against individuals with diminished capacity:

We do not reach the question whether all hog-tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual's diminished capacity is apparent. This diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition, apparent to the officers at the time, which would make the application of a hog-tie restraint likely to result in any significant risk to the individual's health or well-being. In such situations, an individual's condition mandates the use of less restrictive means for physical restraint.

Cruz, 239 F.3d at 1188.  The Court found that the individual officers were entitled to qualified immunity, because the right was not “clearly established.”  Nevertheless, the Court affirmed denial of summary judgment for the City of Laramie on a failure to train claim:

 

The court cited evidence that the City failed to train its officers on the use of hobble restraints and that the City put such restraints in its police cars. The court also noted that high ranking officials were aware of positional asphyxia attributable to hobble restraints and of a doctor's report stating that “deaths in police custody with hog-tie restraint[s] have been reported in medical literature a number of times.” The district court found that genuine issues of material fact were in dispute. The denial of summary judgment to the City therefore was appropriate.

Id. at 1191.


II.   
Americans with Disabilities Act

 

Because Section 1983 contains so many barriers to recovery, plaintiffs have sought relief through other

avenues of redress.  Most mental illnesses will probably rise to the level of a “disability” under the Americans with Disabilities Act.  Because the ADA is designed to eliminate discrimination against individuals with disabilities, many people who encounter force at the hands of law enforcement claim that they suffered impermissible discrimination.


A.    General Principles of the ADA

 

                      Title II of the Americans with Disabilities Act provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.   The United States Department of Justice has issued regulations implementing Title II’s prohibition against discrimination. Those regulations provide that “[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).  Mentally ill individuals frequently claim that law enforcement officers should have made “reasonable modifications” to normal policies before implementing the use of force.  “Under the ADA[,] ... a discrimination claim based on an arrest situation usually arises in two different situations: (1) when police wrongfully arrest someone by mistaking his disability for criminal conduct, and (2) when police properly investigate and arrest someone with a disability for a crime unrelated to the disability and then fail to reasonably accommodate the disability in the course of the investigation or arrest.”  Joseph v. Bailum, No.16-cv-81176-BLOOM/Valle, 2017 WL 733393 at *6 (S.D. Fla. Feb. 24, 2017).    

 

B.        Does the ADA Apply to Encounters Between Law Enforcement and the Mentally Ill?

 

                    As an initial matter, it must be noted that the Fifth Circuit Court of Appeals takes the position that the ADA “does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer's securing the scene and ensuring that there is no threat to human life.”  Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000).  It appears that the Fifth Circuit is the only appellate court to adopt this bright-line rule.  Instead, other courts seem to balance the totality of circumstances in determining if there has been a violation. See Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 175 (4thCir.2009) (“Just as the constraints of time figure in what is required of police under the Fourth Amendment, they bear on what is reasonable under the ADA.”); Bircoll v. Miami–Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)(“The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.”); Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir.1999) (rejecting “a broad rule categorically excluding arrests from the scope of Title II ....”).

 

 C.        Failure To Train Law Enforcement on Interacting with the Mentally Ill.

 

                     Just as they do under Section 1983, some plaintiffs attempt to use the ADA to impose liability on municipalities for failure to train law enforcement officers on interactions with the mentally ill.  At least one court has found that there is no “viable claim” for insufficient training under Title II of the ADA.  Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006) (but “bypassing” the issue of whether Title II requires law enforcement to “draft policies and train officers on the needs of the mentally ill public.”)  To the extent that a failure to train claim may be viable, “[f]ailure to train claims under the ADA are generally analyzed under the same framework as failure to train claims brought against municipalities under 42 U.S.C. § 1983.”  Estate of Saylor v. Regal Cinemas, Inc., No. WMN-13-3089, 2016 WL 4721254 (D. Md. Sep. 9, 2016).     To that end:

 

The ADA and the Rehabilitation Act prevent public entities and the recipients of federal funding from discriminating against disabled individuals. See Barnes v. Gorman, 536 U.S. 181, 184–85, 122 S.Ct. 2097, 2100, 153 L.Ed.2d 230 (2002). To state a claim for compensatory damages under either statute, a private plaintiff must show that the defendant acted “with discriminatory intent.”  McCullum v. Orlando Reg.Healthcare Sys., Inc., 768 F.3d 1135, 1146–47 (11th Cir. 2014); see Delano–Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.”).  That requires proof the defendant either intentionally discriminated against the plaintiff or was “deliberately indifferent to his statutory rights.” McCullum, 768 F.3d at 1147 (quotation marks omitted). “To establish deliberate indifference, a plaintiff must show that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id. (quotation marks and alteration omitted).

 

Boynton v. City of Tallahassee, 650 Fed. Appx. 654, 658 (11th Cir. 2016) 

 

D.        Immunity

 

                    The majority of circuits hold that there is no individual liability under Title II of the ADA.  See, e.g., Bowens v. Wetzel, No. 16-3036, 2017 WL 35712 at *2 (3d Cir. Jan. 4, 2017); Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).  Nevertheless, there appears to be an interesting line of divergent cases in the Eighth Circuit.  In Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999), the court noted that the defendants could “not be sued in their individual capacities directly under the provisions of Title II.”  Nevertheless, that court has more recently conducted an extensive analysis of qualified immunity as a defense in an ADA claim brought against police officers who used force against an individual suffering from a psychotic episode.  Roberts v. City of Omaha, 723 F.3d 966, 972 (8th Cir. 2013).  The Roberts court made no mention of whether individual liability was available under Title II and appeared to simply assume that it was – in the course of granting qualified immunity to the officers.

 

                     Finally, it should be noted that Eleventh Amendment immunity is not available to state actors under Title II.  Most employment lawyers are probably familiar with the Supreme Court’s decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), holding that Congress did not validly abrogate Eleventh Amendment immunity with regard to Title I of the ADA.  In contrast, the Court found that Congress did validly abrogate Eleventh Amendment immunity with regard to Title II in U.S. v. Georgia, 546 U.S. 151 (2006).

 

III.              Conclusion


                  Interactions between law enforcement and the mentally ill can lead to difficult legal issues.  Hopefully, this article can provide some assistance to attorneys confronted with legal claims. 



1There are certainly possible other claims.  In Holloway v. Purvis, No. 16-60406, 2017 WL 715895 (5th Cir. Feb. 22, 2017), the plaintiff argued that the attempt to seize him pursuant to a “mental writ statute” was a Fourth Amendment unreasonable seizure.  He argued that it amounted to a “warrantless arrest without probable cause,” but the Fifth Circuit rejected that argument.

2For example, in Valle v. City of Houston, 613 F.3d 536, 548 (5th Cir. 2010), the Court found that the plaintiff must show more than a potential for constitutional violations.  Instead, the plaintiff must “link this potential for constitutional violations with a pattern of actual violations sufficient to show deliberate indifference.”  “Prior instances must point to the specific violation in question; ‘notice of a pattern of similar violations is required.’ ... Although it is possible to infer that prior shootings may have involved excessive force, that inference is too tenuous to survive summary judgment.”  Id.

JULY 2017

 

Sex and Section 1983: Consent as a Defense
By: Jamie Huffman Jones, Friday, Eldredge & Clark, LLP


As a basic principle, no detention officer should engage in a sexual relationship with an inmate. Indeed, at least one circuit has held that it is so patently obvious to not rape an inmate that there is not a need for law enforcement supervisors to train on this subject. 
Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996); Parrish v. Ball, 594 F.3d 993, 999 (8th Cir. 2010). The foundation for no sexual contact rule is found in the Eighth Amendment (or through the Fourteenth Amendment for pre-trial detainees) that punishment shall never be “cruel and unusual.”[1] When an officer and an inmate do engage in consensual sex, the question arises whether consent is a defense to a claim of sexual assault under Section 1983. The circuits are split on the question, but there is a surprising body of authority allowing consent as a defense. In other words, consensual sex in jail between a guard and inmate, while illegal, may not be unconstitutional.

Standard Employed. Before the question of whether consent is a defense can be answered, one must consider the legal standard to be applied. For post-trial detainees, “[a] sexual relationship between an inmate and a guard may rise to the level of harm required for an Eighth Amendment claim. Sex and coercive relationships are complicated and the level of harm—or lack thereof—will depend on the facts of a given case.” Chao v. Ballista, 806 F. Supp. 2d 358, 374 (D. Mass. 2011). Whether sexual abuse rises to the level of “unnecessary and wanton infliction of pain” will depend on the circumstances of the particular case. Boddie v. Schnieder, 105 F.3d 857, 861-62 (2d Cir. 1997). “To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused 'pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind.” Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997).

Pre-trial detainee cases are generally analyzed under the Fourteenth Amendment. Ojo v. Hillsborough Cty. Dep't of Corr., No. 12-cv-204-SM, 2012 U.S. Dist. LEXIS 142509, at *5 (D.N.H. Sep. 25, 2012)(“The Fourteenth Amendment protects a pretrial detainee from unwanted sexual contact by prison officials. Such a claim may be analyzed by analogy to the legal standards governing excessive force claims.”); Maxwell v. Talley, No. 4:07CV00669 SWW/BD, 2010 U.S. Dist. LEXIS 85200, at *10-11 n.4 (E.D. Ark. July 12, 2010) (“Because Plaintiff Smith was a pretrial detainee at the time of the alleged assault, her claims are analyzed under the due process clause of the Fourteenth Amendment. Under that analysis, a pretrial detainee's constitutional rights are violated if the conditions of confinement amount to punishment.”).


Consent is not a defense to a criminal charge.
 Under most criminal statutes, consent cannot be a defense when a prison guard has sex with an inmate because of the superior relationship of the official. These cases are treated as statutory rape. Along that line, some circuits have recognized that prisoners are incapable of consenting to sexual relationships with a prison official even in a civil Section 1983 case. Lobozzo v. Colorado Dep't of Corr., 429 F. App'x 707, 711 (10th Cir. 2011) (stating, with no analysis, “[i]t is uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard”); Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999) (concluding that “as a matter of law . . . the consent defense is unavailable” to a prison guard who engages in a sexual act with a prisoner); Cash v. County of Erie, No. 04-cv-0182, 2009 U.S. Dist. LEXIS 91232, 2009 WL 3199558, at *2 (W.D.N.Y. Sept. 30, 2009). The rationale for these decisions rests primarily on the imbalance of control between prison guards and prisoners. Wood v. Beauclair, 692 F.3d 1041, 1046-1047 (9th Cir. Idaho 2012) (Even if the prisoner concedes that the sexual relationship is “voluntary,” because sex is often traded for favors, it is difficult to characterize sexual relationships in prison as truly the product of free choice.).

Consent can a defense to a constitutional tort. Other jurisdictions allow consent as a full defense to Section 1983 claims. An example is found in the Eighth Circuit case of Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997). In Freitas, a male inmate brought a § 1983 action against a warden and a female prison employee, alleging that a guard sexually harassed him in violation of the Eighth Amendment. After a bench trial, the district court found that the sexual relationship between the inmate and the employee was consensual, so the inmate failed to establish an Eighth Amendment sexual harassment claim. In affirming the district court, the Eighth Circuit agreed with the district court's factual determination that the relationship between the inmate and the employee was consensual, and noted that the record contained no evidence, other than the inmate's unsubstantiated assertions, supporting his claim that he succumbed to the employee's advances because she was his boss and he feared the possible negative consequences of reporting her actions. The circuit court concluded that, because the sexual interactions between the inmate and the employee were consensual, there was no violation of the Eighth Amendment.


On cross-appeal, Mr. Freitas contends that the trial court erred in finding in favor of Ms. Howard on his sexual harassment claim. While we have previously held that prisoners can state a cause of action for sexual harassment under 42 U.S.C. § 1983 . . . we have never specified the underlying basis for such claims. We believe that because the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the “'unnecessary and wanton infliction of pain,'“ . . . forbidden by the Eighth Amendment. . . . To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused “pain” and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind. . . .

 

Without deciding at what point unwelcome sexual advances become serious enough to constitute “pain,” we hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute “pain” as contemplated by the Eighth Amendment. Because we hold that Mr. Freitas has not established the existence of the objective component of a cause of action under the Eighth Amendment, we need not discuss the subjective component. We therefore reject Mr. Freitas's argument that the trial court erred in finding for Ms. Howard on his sexual harassment claim.

 

Freitas v. Ault, 109 F.3d 1335, 1338-39 (8th Cir. 1997).

 

The Western District of New York applied Freitas in denying an inmate’s claims under Section 1983 that she was raped by three prison officials:

 

Furthermore, even if it is assumed arguendo that Fisher's hearing testimony was credible, she still has not established a clear or substantial likelihood of success on the merits with respect to a number of the individual defendant correction officers. On her claims of rape under § 1983, Fisher has the burden of showing lack of consent. Lyons v. Williams, 91 F.3d 1308, 1311 (9th Cir. 1996), cert. denied, 136 L. Ed. 2d 837, 117 S. Ct. 949 (1997). Fisher's own testimony about her sexual relationships with defendants Schwartz, Hemley and Kuttner can only reasonably be interpreted as showing that the relationships were consensual in nature. While testifying, Fisher never used the word “rape” to describe her sexual interactions with these defendants. In contrast, she expressly stated that defendants DiSalvo and Schmidt “raped” her. Further, she presented no evidence that either Schwartz, Hemley or Kuttner forced, threatened or coerced her to have sex. She admitted that she did not resist them or tell them no. She testified that she had sexual relations with Schwartz and Hemley on several occasions and described each of them as a “friend.” She indicated that she ended her sexual relationship with Schwartz, not because he raped or abused her, but because she “didn't miss him” when she was at Bedford Hills. Although, as stated above, Fisher's prison records indicate that she was never hesitant or afraid to complain to prison officials about perceived mistreatment by correction officers, she did not report her alleged sexual interactions with these defendants until months after they occurred, and she testified that she had sexual relations with Hemley even after she had reported him. Thus, with regard to Schwartz, Hemley and Kuttner, Fisher has failed to show lack of consent, even if her testimony is assumed to be true. . . .

 

Applying Freitas to the instant case, the Court finds that, even if Fisher's testimony had been found credible, Fisher failed to establish an Eighth Amendment violation with regard to defendants Schwartz, Hemley and Kuttner. As stated above, Fisher's own description of her alleged sexual relationships with these individuals shows that they were consensual. Under Freitas, consensual sexual interactions between a correction officer and an inmate, although unquestionably inappropriate, and in this Court's view despicable, do not constitute cruel and unusual punishment under the Eighth Amendment.

 

Plaintiffs argue that there exists a “power discrepancy” between a correction officer and an inmate, making it impossible for an inmate to ever truly consent to having sexual relations with a correction officer. While the Court agrees that a correction officer's position of authority over an inmate is a factor that should be considered when determining, factually, whether or not there was consent, plaintiffs have cited no case law or applicable statutory authority to support the proposition that an inmate may never, as a matter of law, consent to sexual relations with a correction officer. Indeed, the Eighth Circuit, in Freitas, clearly held that an inmate may consent to sexual relations with a prison employee. Here, there is no credible evidence that either Schwartz, Hemley or Kuttner used their positions as correction officers to force, threaten or coerce Fisher into having sex.

 

Fisher v. Goord, 981 F. Supp. 140, 174-75 (W.D.N.Y. 1997).

 

When defending cases arising out of sex between an inmate and a guard, consent may be a defense in your jurisdiction. While not exhaustive, the cases cited here and below may be useful in determining if and when the defense of consent is viable.

Sex with Consent between a prisoner and guard is:


Never a violation of the eighth amendment:

  • 2nd Cir.
    • Fisher v. Goord, 981 F.Supp. 140, 174-75 (W.D.N.Y. 1997) (“Under Freitas, consensual sexual interactions between a correction officer and an inmate, although unquestionably inappropriate, and in this Court’s view despicable, do not constitute cruel and unusual punishment under the Eighth Amendment.”)
  • 3rd Cir.
    • Phillips v. Bird, Civil Action No. 03-247-KAJ, 2003 U.S. Dist. LEXIS 22418, at *17-18 (D. Del. Dec. 1, 2003) (”That an inmate cannot assert consent as a defense to the crime articulated in 11 Del. C. § 1259 does not mean that an inmate can avoid the consequences of consent in a civil suit.”)
  • 5th Cir.
    • Petty v. Venus Correctional Unit, 2001 WL 360868 at *2 (N.D. Tex. April 10, 2001) (dismissing inmate's § 1983 claim because "plaintiff has not shown the alleged [sexual] harassment to have caused him pain").
  • 8th Cir.
    • Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997)("[W]e hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute 'pain' as contemplated by the Eighth Amendment").
  • 10th Cir.
    • Graham v. Sheriff of Logan Cty., No. CIV-10-1048-F, 2012 U.S. Dist. LEXIS 189549, at *31 (W.D. Okla. Nov. 1, 2012) (holding that one time consensual encounter that did not result in any favors could not constitute a violation of eighth amendment rights)

May be a violation of the eighth amendment:

  • 1st Cir.
    • Chao v. Ballista, 772 F. Supp. 2d 337, 349 (D. Mass. 2011) (differentiating the factual circumstances from Freitas v. Ault, and holding that consent cannot be determined as a matter of law and must be a factual inquiry found at trial).
  • 2nd Cir.
    • Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (holding that severe or repetitive sexual abuse of an inmate by a prison officer can constitute an Eighth Amendment violation).
  • 3rd Cir.
    • White v. Ottinger, 442 F. Supp. 2d 236, 241 (E.D. Pa. 2006) (holding that evidence that officer knew she was in a position of power and that is why the inmate agreed to sexual acts created a genuine issue of material fact as to consent and the evidence could prove assault occurred which was sufficiently serious enough to constitute violation of eight amendment rights).
  • 8th Cir.
    • Morgan v. Glen, No. 6:12-cv-06098, 2014 U.S. Dist. LEXIS 14740, at *11 (W.D. Ark. Feb. 6, 2014) (“Even voluntary sex may rise to the level so as to constitute a violation of the Eighth Amendment.”) (citing Chao v. Ballista, 772 F. Supp.2d 337 (D.Mass. 2011))
  • North Dakota Supreme Court
    • Grager v. Schudar, 2009 ND 140, ¶ 18, 770 N.W.2d 692, 697 (“An adult prisoner's apparent consent to or participation in sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to the prisoner's recovery in a civil action premised upon the sexual conduct”)

Per se a violation of the eighth amendment:

  • 2nd Cir.
    • Cash v. County of Erie, 2009 WL 3199558, at *2 (W.D.N.Y.) ("Because plaintiff was incarcerated, she lacked the ability to consent to engage in sexual intercourse with [defendant guard] Hamilton as a matter of law).
  • 3rd Cir.
    • Carrigan v. Davis, 70 F. Supp. 2d 448, 452-53 (D. Del. 1999) (holding as a matter of law that vaginal intercourse or fellatio between an inmate and officer is a per se violation of the Eighth Amendment).
  • 10th Cir.
    • Lobozzo v. Colo. Dep't of Corr., 429 F. App'x 707, 711 (10th Cir. 2011) (“It is uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard. And no one disputes that rape is sufficiently serious to constitute a constitutional violation.”)

 

[1] In most, if not all, states sex between a prison guard and an inmate is always rape because the inmate is presumed to be incapable of giving consent while incarcerated.

 

 

 

JUNE 2017

Nonconforming Ninth Circuit Rule on Excessive Force Overturned by SCOTUS

 

In County of Los Angeles v. Mendez, the United States Supreme Court overturned a Ninth Circuit doctrine called the “provocation rule” applied in police excessive force cases. This rule, favoring plaintiffs, held that a police officer’s otherwise reasonable force was unreasonable under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.”

 

In Mendez, police sought an armed and dangerous parolee whom they believed was hiding in or around a residence. The police found a shack in the rear of the target residence and entered the shack without a warrant, did not knock and announce their presence, and confronted plaintiffs who were napping. Mendez rose from his bed holding a B.B. gun he used to kill vermin. Alarmed by the sight of a gun, the officers opened fire, hitting plaintiffs with multiple shots.

 

The trial court awarded nominal damages on the claims of warrantless search and the no-knock entry but held the officers’ use of force was objectively reasonable under Graham v. Connor, 490 U. S. 386 (1989). Nonetheless the trial court applied the provocation rule, finding the officers liable for use of excessive force. On appeal, the Ninth Circuit afforded the officers qualified immunity on the no-knock entry claim, held the warrantless search violated clearly established law, and upheld application of the provocation rule.

 

The Supreme Court reversed application of the provocation rule, holding the Fourth Amendment provides no basis for the rule because it is inconsistent with the settled and exclusive analysis used to determine whether force complies with the Fourth Amendment. Under Graham, the court must examine “whether the totality of the circumstances justifie[s] a particular sort of seizure” from the perspective of a reasonable officer in possession of those facts at the time. The provocation rule essentially established an alternate Fourth Amendment analysis, first to determine if a separate constitutional violation created a situation that led to the use of force and, second, to determine whether the separate violation was committed by the officers intentionally or recklessly. The Court reasoned that every potential violation should be analyzed separately. Under the provocation rule, however, the courts would have to apply vague standards of causation and gauge the subjective intent of the officers by conflating all alleged Fourth Amendment violations into one transaction.

 

The hallmark of Fourth Amendment jurisprudence is objective reasonableness. An officer should not be held liable if his actions are objectively reasonable in light of the facts and circumstances of which he was aware at the time he acted. The provocation rule, according to the Supreme Court, was an unwarranted and illogical extension of Graham. With its reliance on causative relationships of distinct acts, the rule converts Fourth Amendment jurisprudence into proximate cause tort law. The Supreme Court, in its unanimous decision, righted the Fourth Amendment ship in the Ninth Circuit.

 

 

APRIL 2017


Qualified Immunity Continues to Receive Favorable Review by SCOTUS Content

 

In White v. Pauly, United States Supreme Court, No. 16–67, decided January 9, 2017, the Court granted qualified immunity to a police officer who arrived late at an ongoing police action, witnessed shots being fired by an occupant of a house surrounded by other officers, and then shot and killed an armed occupant of the house without first giving a warning. Leading up to the shooting, three police officers went to a secluded house where they believed a suspect would be found. Their purpose was to investigate an allegation of drunk driving and road rage. The officers surrounded the house and shouted to the occupants to come out or they were coming in. One officer gave one warning they were police. The scene was confused, but one occupant of the house shouted back at the officers they had guns, then one occupant fired two shots from the back door. A few seconds after the shots, another man, Samuel Pauly, pointed a gun out of a window toward Officer White who eventually shot Pauly. The evidence was undisputed Officer White arrived after the first three officers and did not witness everything that occurred before Pauly pointed his gun out of the window.


In the lawsuit that followed, the district court denied qualified immunity to the officers, including Officer White, and the circuit court of appeals affirmed because, in its view, a reasonable officer in White’s position would believe that the law clearly established that a warning was required before using deadly force, despite the threat of serious harm to a law enforcement officer. The counter-argument was expressed by a dissenting circuit judge, noting he was “unaware of any clearly established law that suggests . . . that an officer . . . who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.” 817 F. 3d 715, 718 (CA10 2016).


The Supreme Court said in its per curiam opinion: “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011). As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Anderson v. Creighton, 483 U. S. 635, 640 (1987). Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ Id., at 639.” On the facts of Officer White’s claim for qualified immunity, the Court adopted the circuit’s view that the facts he presented to support his qualified immunity were “unique” but went further to opine the circuit court, if it were to deny qualified immunity, should have identified a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment, rather than rely on a generalized formula to analyze use of force.

 

This case illustrates an important point for defense lawyers – a unique set of circumstances will not fit into a pattern use-of-force formula, greatly increasing the opportunity to obtain qualified immunity for the officer. In other words, the more unusual the facts, the more likely the officer should be given the benefit of the doubt and qualified immunity if his actions are otherwise reasonable.

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