Section 1983 Police Officer Liability for Driving Recklessly
Protecting Police Officers from Section 1983 Damages Liability
By now, many of us know that section 1983 doctrines are highly protective of police officers sued for violating citizens’ constitutional rights. Fourth Amendment law itself has become more officer-protective with its emphasis in excessive force cases on the perspective of the officer at the time of the occurrence. Graham v. Connor, 490 U.S.386 (1989). And the added layer of protection for officers, qualified immunity, has repeatedly been described by the Supreme Court as protecting “all but the plainly incompetent” from damages liability. See generally on qualified immunity, ch. 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2015).
High-Speed Police Chases, the Fourth Amendment and Qualified Immunity
In high-speed police chases that involve a seizure and therefore implicate the Fourth Amendment, the pro-officer approach of the Supreme Court is particularly obvious. For example, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation. See my post of February 12, 2016. A prior decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.
Both Plumhoff and Mullinex derived from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.
High-Speed Police Chases and Substantive Due Process
Furthermore, even in cases that don’t involve a Fourth Amendment seizure but instead implicate substantive due process, the Supreme Court has required a very high standard of culpability–a purpose to do harm–that is incredibly difficult for a plaintiff to surmount. County of Sacramento v. Lewis, 523 U.S. 833 (1998).
A Rare Case of Section 1983 Police Officer Liability: Browder v. City of Albuquerque, 2015 WL 3462180 (10th Cir. 2015)
Now consider a substantive due process case where, because it did not involve a high-speed chase that was legitimate from a law enforcement perspective, the result was dramatically different.
The Tenth Circuit in Browder set out the facts this way:
“[The defendant] was going nowhere fast. After finishing his shift at the Albuquerque police department and on no one’s business but his own, he got into his police cruiser, flipped on the emergency lights, and drove off at an average of about 66 miles an hour on city surface streets through ten different intersections over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light was red. He pressed the gas pedal, ignored the light, and the result was a terrible crash. “
A woman died and her sister was seriously injured. Their representative sued the police officer under section 1983 alleging a substantive due process violation.
Affirming the district court which denied the defendant’s motion for summary judgment based on qualified immunity, the Tenth Circuit pointed out that this was not a case involving a possibly legitimate government objective. Further, there was sufficient evidence of reckless indifference to the lives of others, a kind of mens rea, because the defendant was not responding to any emergency or on any official business at all. Moreover, the defendant violated clearly settled law in 2013, the time of the accident, and thus was not entitled to qualified immunity.
Notice that the Tenth Circuit did not use the pro-defendant County of Sacramento test with its very high standard of culpability–purpose to do harm– because the officer was not engaged in a high-speed chase of a suspect. Instead, it used the somewhat lower standard of reckless indifference, although this was accompanied by a reference to County of Sacramento and the alleged mens rea of the officer.
Also observe that while there is an interesting question whether the police officer in Browder acted under color of law, the parties accepted that there was state action and the Tenth Circuit agreed without deciding the question.
I invite you to follow me on Twitter @NahmodLaw