Deadly Force (Firing Shots) and High Speed Police Chases
On May 27, 2014, the Supreme Court handed down Plumhoff v. Rickard (PDF), 572 U.S. — (2014) (No. 12-1117), a new Fourth Amendment/qualified immunity decision involving the use of deadly force–firing shots–and high speech chases.
The Plaintiff’s Claim in Plumhoff
Plumhoff involved a high speed chase—it began when an officer pulled over a driver because his car had only one operating headlight–in which police officers shot the driver and a passenger, both of whom died as a result of the shots and the consequent crash. The driver, on whose behalf his daughter filed a § 1983 claim alleging excessive force, made several arguments. First, the police officers who fired at the driver’s car in an attempt to terminate the chase violated the Fourth Amendment. Second, the police officers who fired a total of fifteen shots at the car violated the Fourth Amendment because this was excessive. Finally, the defendants violated clearly settled Fourth Amendment law.
The Court’s Opinion on the Fourth Amendment Merits
In an opinion by Justice Alito, the Supreme Court reversed the Sixth Circuit that had ruled for the daughter. The Court found that the police officers did not violate the Fourth Amendment just because they used deadly force to terminate the chase. Relying on Scott v. Harris, the Court pointed out that here, as in Scott, the officers did not violate the Fourth Amendment in terminating a high speed chase posing a grave public safety risk through the use deadly force. The chase lasted over five minutes with speeds exceeding 100 miles per hour; the driver’s outrageously reckless driving put many other vehicles at risk; and even though the driver’s car had come to a temporary halt, that did not end the chase because he continued pushing down on the accelerator in an attempt to escape. At that point an officer fired three shots but the driver continued to drive away. This was followed by an additional twelve shots, with the driver never abandoning his attempt to flee until the crash. The Court emphasized that the officers did not need to stop shooting until it was clear to them that the threat to public safety had ended.
As to the presence of a passenger in the front seat of the car, this was largely irrelevant to the Fourth Amendment issue posed by this case: it was not the passenger’s Fourth Amendment rights that were implicated, it was those of the driver. “[The passenger’s] presence in the car cannot enhance [the driver’s] Fourth Amendment rights.” In this connection, the Court observed in passing that there was disagreement in the circuits as to whether a passenger in this situation even had a Fourth Amendment claim. In addition, if such a passenger pursued a substantive due process claim, he or she would have to prove that the officer had a purpose to cause harm unrelated to the legitimate object of arrest, per County of Sacramento v. Lewis.
Finally, the Court ruled that in any event, the officers did not violate clearly settled Fourth Amendment law as of July 18, 2004, the date of the events in question. The Court’s decision in Brosseau v. Haugen, 543 U.S. 194 (2004), had ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired at a fleeing vehicle to prevent harm to officers she believed were nearby and to protect other citizens. The events in Brosseau occurred in February 1999 and there were no intervening decisions that constituted controlling or persuasive authority that changed this qualified immunity determination.
Plumhoff was not a surprising decision. It followed from Scott v. Harris, but expanded that decision to expressly include shooting a fleeing driver who poses a grave risk to officers or public safety. In other words, there is no Fourth Amendment obligation on the part of police officers in these situations to refrain from firing shots, at least while the chase and the danger to others are ongoing.
Plumhoff also emphasized the need for judges doing Fourth Amendment analysis to put themselves in the place of police officers making split second decisions.
It is further worth noting the Court’s insistence that the clearly settled law inquiry not be conducted at too high a level of generality but rather at a fairly fact specific level in Fourth Amendment excessive force cases especially.
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When one thinks of guns and section 1983, the Second Amendment immediately comes to mind. Indeed, I previously blogged about this developing connection. See The Second Amendment and Gun Control: Unanswered Questions and Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago.
However, in the course of preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.), I came across an interesting Third Circuit case involving potential liability under section 1983 and the Child Safety Lock Act of 2005 (PDF, see § 5).
Estate of Arrington v. Michael, 738 F.3d 599 (3rd Cir. 2013)
In this case, the estate of a young woman, shot eight times and killed by the defendant police officer’s son who had used his father’s service-issued Smith & Wesson handgun, sued the police officer under section 1983 alleging a substantive due process violation. The decedent had obtained a temporary protection from abuse order against the officer’s son, which the officer knew about and discussed with his son.
Without reaching the merits, the Third Circuit reversed the district court and dismissed the complaint. It ruled that the officer was protected from all civil liability resulting from the use of a gun, including section 1983 liability, by the Child Safety Lock Act of 2005 (CSLA), 18 U.S.C. § 922(z)(3). Under its terms, the unlawful use of a gun by a third person does not result in civil liability for the owner where “access was gained by the person not so authorized [to have access to it and] the handgun had been made inoperable by use of a secure gun storage or safety device….”
Here, the officer took reasonable precautions to ensure that nobody, including his son, would have access to his gun within the meaning of the CSLA. Indeed, the son had great difficulty in eventually accessing the gun. Among other things, the officer had locked the gun with a police department issued gun lock, had hidden the key and had kept the magazine and ammunition separate from the gun, which was itself hidden. Thus, he was fully protected from liability.
Had the substantive due process merits been reached, the officer likely would still have prevailed on any one of several grounds.
1. The officer’s conduct may not have constituted state action. He was not required as a police officer to take his weapon home; it was only “preferred.”
2. Even if there was state action, the officer may not have been deliberately indifferent to the physical safety of the decedent, the state of mind required for substantive due process violations.
3. His conduct may not have been the proximate cause of the decedent’s death because of the intervening criminal act of his son and the officer’s own conduct which made it very difficult for his son even to access his gun.
4. There is the threshold question in this case of the very existence of an affirmative due process duty. Unless the officer somehow created the danger to the decedent, he may have had no duty to her.
In any event, the effect of the CSLA, according to this Third Circuit decision, is to amend section 1983 by providing a new statutory defense in such cases going beyond absolute and qualified immunity.
Here is a five-minute video on the case: http://youtu.be/3bKstfw0jRM
I hope you find it informative.
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I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11 and 8-7-13 about section 1983 malicious prosecution cases in the circuits.
What follows are three relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT on Westlaw). Two of these decisions are from the Seventh Circuit; the third is from the Tenth Circuit.
Julian v. Hanna (7th Cir. 2013)
In Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), the Seventh Circuit, in an opinion by Judge Posner, addressed the plaintiff’s due process malicious prosecution claim arising out of the law enforcement officers’ allegedly coercing another suspect in a burglary-fire to accuse plaintiff in the course of fabricating charges against him, leading to plaintiff’s prosecution, conviction and sentence of 15 years. He was thereafter successful in obtaining post-conviction relief and all charges were dismissed after he had served about three years but more than nine years after he was arrested. The Seventh Circuit, relying on the concurring opinions of Justices Kennedy and Thomas in Albright as well as on Parratt, rejected the defendants’ argument that they could not be sued for malicious prosecution under due process because Indiana provided an adequate remedy. This purported Indiana remedy was inadequate here for several reasons: the absolute immunity of police officers under state law and the fact that Indiana damages remedies for false arrest or false imprisonment would be far less than for malicious prosecution since they would cover only the week or so he was detained before being formally charged. In contrast, the period for which malicious prosecution damages might be recovered began with his arrest and ended only over nine years later when charges were dismissed.
Serino v. Hensley (7th Cir. 2013)
Compare Serino v. Hensley, 2013 WL 5878463 (7th Cir. 2013), where the Seventh Circuit dealt with the plaintiff’s allegation of a § 1983 due process malicious prosecution claim arising out of his being charged with trespass and resisting law enforcement. In the course of its opinion affirming the district court’s dismissal of the complaint, the Seventh Circuit reaffirmed that its decision in Julian had made clear that Indiana state law does not provide an adequate remedy for malicious prosecution. However, it determined that the plaintiff still had to allege a constitutional right separate from false arrest under the Fourth Amendment and he did not do so here. Specifically, he did not allege that the chief of police made recommendations that were knowingly false, that he withheld exculpatory evidence from the prosecutor or that he took steps to further what he knew was a baseless prosecution. Nor did plaintiff allege actual malice. Finally, he did not allege that he had suffered a post-arraignment liberty deprivation. His complaint alleged only harm resulting from his arrest. For these reasons the complaint did not state a constitutional violation for § 1983 malicious prosecution purposes.
Myers v. Koopman (10th Cir. 2013)
Myers v. Koopman, 2013 WL 6698102 (10th Cir. 2013), involved a plaintiff’s § 1983 malicious prosecution claims arising out of the defendant detective’s allegedly obtaining an arrest warrant by fabricating facts to create the illusion of probable cause, resulting in plaintiff’s spending three days in custody. The Tenth Circuit affirmed the district court’s dismissal of plaintiff’s § 1983 malicious prosecution due process claim because an adequate Colorado remedy existed. This alleged conduct could not be anticipated and hence an adequate post-deprivation remedy satisfied due process requirements. However, it reversed the district court’s dismissal of his § 1983 Fourth Amendment malicious prosecution claim because he was indeed seized after the institution of legal process. This differentiated the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim from a Fourth Amendment false imprisonment claim. The Tenth Circuit relied for this point on its decision in Wilkins v. DeReyes.
1. All three of these cases speak about the availability of state post-deprivation remedies in connection with section 1983 (procedural?) due process malicious prosecution claims. The Seventh Circuit in particular emphasizes that such a remedy must be adequate and determines that the Indiana remedy for malicious prosecution is in fact inadequate.
2. As the Seventh Circuit points out, section 1983 malicious prosecution claims, whatever their constitutional basis, must be sharply distinguished from Fourth Amendment false arrest claims.
3. As the Tenth Circuit points out, section 1983 malicious prosecution claims based on due process must be sharply distinguished from section 1983 Fourth Amendment malicious prosecution claims.
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I would like to invite readers to attend my 31st Annual Conference on Section 1983 Litigation, to be held at Chicago-Kent on Thursday and Friday, April 24-25, 2014.
This national two-day conference, heading into its fourth decade, features expert academic speakers including Erwin Chemerinsky on immunities as well as his Supreme Court review, Karen Blum on local government liability, Rosalie Levinson on equal protection and Sheldon Nahmod on the section 1983 claim as well as the Second Amendment.
It also features outstanding practitioners from around the country, including Gerry Birnberg (Texas) on fees and ethical issues, John Murphey (Illinois) on practical considerations in section 1983 litigation and Brendan Egan (New Mexico) on immigration related issues.
The link to the brochure is here:
For further information, please contact Chicago-Kent’s CLE department via email at firstname.lastname@example.org or via phone at 312-906-5090.
Thanks. I hope to see you there. And please be sure to say hello.
I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.
I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.
“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”
I think you will find it interesting reading.
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My new article, entitled Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, has just been published in 17 Lewis & Clark L. Rev. 1019 (2013).
Here is the link to the complete article.
This is the abstract:
“In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.