Archive for June 2020
The George Floyd Case and Section 1983: A Police Officer’s Constitutional Duty to Intervene
The Intervention Question
Suppose a police officer continues to use life-endangering force even after it is obvious that a misdemeanor arrestee (who has no weapon) is under control and not a danger to others, including police officers. As a result of this use of excessive force, the arrestee dies. This is a violation of clearly settled Fourth Amendment law in every circuit and exposes that officer to potential section 1983 damages liability. If these turn out to be the facts in the George Floyd case, as appears likely at the time of this writing, the result would be the same.
Suppose further that other police officers are present, witness this behavior, have a realistic opportunity to stop the first officer’s unconstitutional use of force but do not act to prevent it. Are they also potentially liable for section 1983 damages for the death of the arrestee because they failed to intervene when they could have, and thus failed to prevent what happened?
The Short Answer
The short answer is YES: they have breached their constitutional duty to stop the first police officer from continuing to use life-endangering force against the arrestee, thereby rendering them potentially liable for section 1983 damages. Again, if these turn out to be the facts in the George Floyd case, the result would be the same: these police officers would potentially be liable for damages under section 1983 for their failure to intervene and to prevent what happened. Moreover, they would not be protected by qualified immunity because they would have violated clearly settled law.
The Longer Answer: The Clearly-Established Legal Background
This is not a new issue. In the seminal decision in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), the Seventh Circuit held that police officers have a due process duty to protect persons from the unwarranted brutality of their fellow officers that occurs in their presence. According to the court, non-involvement will not do where intervention is possible.
Significantly, this duty to intervene even requires subordinates to protect persons from the unconstitutional conduct of superiors or supervisors. In this regard, Byrd was read broadly by the Eighth Circuit in Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981), to impose liability on a subordinate police officer for failure to intervene against his superior where the subordinate was present and knew what his superior was doing.
Along the same lines, the Eleventh Circuit declared: “If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).
In a useful statement of the general rule, the Second Circuit said in Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted):
It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.
What is a Realistic Opportunity to Intervene?
Consider Grider v. Bowling, 785 F.3d 1248 (8th Cir. 2015), where the plaintiff sued a police officer—the relevant defendant here—who had arrested and handcuffed him, followed by another police officer who arrived in his vehicle, ran toward the plaintiff and the arresting police officer and kicked the plaintiff in the head, causing serious harm. The arresting officer and the kicking officer did not communicate before the attack and the arresting officer did not stop the attack. Reversing the district court in this regard, the Eighth Circuit found that the arresting officer was not liable for the kicking officer’s use of excessive force on a failure to protect theory: there was no evidence that the defendant was aware of the kick before it occurred or that he had the opportunity to prevent it. The kicking officer said nothing before he attacked the plaintiff and there was only one kick.
Comment
1. While the Seventh Circuit’s seminal Byrd decision put the duty to intervene in due process terms, the Eighth Circuit, in Hicks v. Norwood, 640 F.3d 839 (8th Cir. 2011), put an officer’s duty to intervene to protect an arrestee from the use of excessive force by another officer in Fourth Amendment terms. However, in the case before it, the court found that there was no Fourth Amendment liability for failing to intervene because the other officer did not use excessive force.
2. There are relatively few affirmative federal constitutional duties imposed on state and local governments and their officials and employees. See, for example, DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), which declared that “nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The George Floyd case and cases like it are distinguishable because they involve police officers, state actors, who fail to prevent “invasions” by other police officers who are also state actors.
2. I expect that any section 1983 damages claims against the police officers in the George Floyd case will settle. There may even be a viable section 1983 damages claim against the city for failure to train, a topic beyond the scope of this post.
3. I discuss the duty to intervene in much more detail in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020; West/Westlaw).
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After Janus, Are Public Employee Unions Subject to Section 1983 Damages Liability?
The Background: The Supreme Court’s Janus Decision
Recall the Supreme Court’s blockbuster decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018)(Janus I), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and holding that it now violates the First Amendment rights of union nonmembers for state and local governments, and for public employee unions, to compulsorily withhold fair-share or agency fees from those nonmembers.
Question: after Janus, do union nonmembers have viable section 1983 damages claims against the public employee unions that previously received those fair-share or agency fees, at least for the period of time permitted under the forum state’s statute of limitations?
The Seventh Circuit’s Section 1983 Janus Decision
In Janus v. AFSCME, 2019 WL 5704367 (7th Cir. 2019)(Janus II), petition for certiorari filed, a non-union state employee sued a public employee union under §1983 and the First Amendment for damages to recover the fair-share fees he had previously paid to the union before the Supreme Court’s decision was handed down.
The Seventh Circuit first ruled that the union acted under color of law, and was thus subject to section 1983, because its receipt of fair share fees from the state pursuant to the collective bargaining agreement was attributable to the state. Here, the union was a joint participant in the agency fee arrangement because the state deducted fair share fees from employees’ paychecks and transferred that money to the union which spent it pursuant to the collective bargaining agreement on labor-management issues. The court then went on to determine that Janus I was retroactive.
Finally, the Seventh Circuit found that the union was protected by a good faith defense. After analyzing Wyatt v. Cole, 504 U.S. 158 (1992), a case involving the private use of state attachment procedures, the court reasoned that the good faith defense articulated there applied here as well. It commented that it was “join[ing] its sister circuits in recognizing that, under appropriate circumstances, a private party that acts under color of law for purposes of section 1983 may defend on the ground that it proceeded in good faith.” It declared, relying on Wyatt, that the good faith defense applied to the public union because it had reasonably relied on then-established First Amendment law. The Seventh Circuit relied by analogy on the tort of abuse of process with its good faith “defense,” as well as on the “appropriateness of allowing a good-faith defense on its own terms.” Thus, the plaintiff was not entitled to money damages. Judge Manion concurred, 2019 WL 5704367, *12, pointing out that public unions had received a “windfall.”
Thereafter, the Sixth and Ninth Circuits joined the Seventh Circuit in so holding. Lee v. Ohio Education Assn., 2020 881265 (6th Cir. 2020) and Danielson v. Inslee, 2019 WL 7182203 (9th Cir.2019).
Comment
The decision on which Janus II relied, Wyatt v. Cole, soundly held, in my opinion, that qualified immunity does not protect a private defendant who uses unconstitutional state attachment procedures that violate procedural due process. Under a functional approach, this conduct is not governmental and thus does not merit qualified immunity protection.
On the other hand, a kind of good faith defense, with both subjective (honest belief) and objective (reasonable belief) components, would be appropriate, according to various justices in Wyatt. As a matter of policy, we want private parties to rely on the law rather than act illegally. Also, it would be unfair to subject a private party who guesses wrong about the unconstitutionality of a state attachment statute to section 1983 damages liability.
This good faith defense thus differs from qualified immunity in two ways: an immediate interlocutory appeal from a district court’s denial of the good faith defense on summary judgment or on motion to dismiss is not available, and the private defendant must honestly (and reasonably) believe that he or she acted constitutionally.
Significantly, after Wyatt, the Court handed down two private party immunity decisions that are rather clearly in tension with one another. One, Richardson v. McKnight, 117 S. Ct. 2100 (1997), held in an opinion by Justice Breyer that prison guards who are employed by a private prison management firm are not protected by qualified immunity. He improperly, in my view, focused on history and marketplace incentives rather than on the government function that such private prison guards perform. They should have been protected by qualified immunity.
The other, Filarsky v. Delia, 566 U.S. 377 (2012), unanimously and soundly held that a private attorney retained to work with government employees in conducting an internal affairs investigation was protected by qualified immunity. Note that the Court strained to distinguish Richardson as a “self consciously” narrow decision emphasizing the particular circumstances there.
In this light, the Seventh Circuit’s decision in Janus II appears to be correct. The challenged conduct here is not governmental in nature but still, under Wyatt, it should be protected at least by the good faith defense. Before Janus I was handed down, the law of the land was Abood and it was on this Supreme Court decision that the public employee union relied. This belief was both honest and reasonable at the time.
All of this is not to say, of course, that I support the Court’s current qualified immunity jurisprudence. I do not, as evidenced by a search of this blog for “qualified immunity” and by the analysis of qualified immunity in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw).
In any event, since a petition for certiorari in pending in Janus II, we may shortly see whether the Supreme Court weighs in on these good faith defense issues.
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