Nahmod Law

The Issue

We know that in both tort law litigation and section 1983 litigation a plaintiff must allege and prove by a preponderance of the evidence that the defendant’s conduct was a but-for cause of the plaintiff’s injury.

What happens in a section 1983 Fourth Amendment excessive force case where the plaintiff knows that one of several police officers used excessive force against him but he cannot identify the particular officer who did?

Can that plaintiff sue all of the officers jointly and severally, arguing that they are all liable except to the extent that any of them can prove the absence of but-for causation by a preponderance of the evidence? Is there an analogy to the famous tort case, Summers v. Tice, 33 Cal. 2d 80 (1948)?

The Sixth Circuit’s Answer

The Sixth Circuit answered “no” in Pineda v. Hamilton County, 2020 WL 5868402 (6^th Cir. 2020). The plaintiff alleged that one of three off-duty sheriff’s deputies providing security at a night club hit him on the back of his head and caused brain damage. However, he sued all three of them under section 1983 and the Fourth Amendment jointly and severally because he could not identify the deputy who hit him. Distinguishing Summers v. Tice as involving defendants both of whom were negligent, the Sixth Circuit emphasized that here only one deputy had allegedly used excessive force. It therefore affirmed the district court’s grant of summary judgment to all three deputies. The court also observed that that plaintiff did not indicate any circumstances keeping him from identifying the deputy who allegedly struck him.

Judge Posner’s Primer on Joint and Several Liability

Consider in this connection Richman v. Sheahan, 512 F.3d 876, 884-85 (7th Cir. 2008)(citations omitted), where Judge Posner, discussing the joint and several liability issues that might arise in cases dealing with multiple defendants, explained :

 “There are four possibilities in a tort case with multiple defendants, such as this. The first is that each defendant’s act makes the injury to the plaintiff a little worse and it is the combination of the acts of separate defendants that does him in. Then each defendant is liable only for the increment in harm that he caused.”

 “Second, each defendant might by his own act have inflicted the entire injury, in the sense that, had he not committed the act, the injury would have been no less grave than it was, as when two persons shoot a third and each wound would have been fatal by itself. Again, both would be liable, but this time jointly and severally.”

“Third, as in Summers v. Tice, each defendant might have committed an act that is a tort when injury results (for there is no tort without an injury), but it is unclear which defendant’s act was the one that inflicted the injury–both shot at the plaintiff, one missed, but we do not know which one missed. Again both are jointly and severally liable.”

“And fourth, one defendant might commit the act that causes the harm yet the other be sued as well because he could have prevented the harm but did not. … If [the defendants who just stood around looking while Richman was being swarmed] should have realized that their colleagues were using excessive force they had a duty to intervene, for they were part of the arresting force, awaiting a call to join the swarm should it become necessary.”

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